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NZLS does not support ACC appeal reform proposals

The New Zealand Law Society says it cannot support any of four options proposed for reform of the ACC appeals process.

In its comments to the Ministry of Business, Innovation and Employment on its discussion document Accident Compensation Appeals – options for reform, the Law Society says none of the proposals is likely to achieve the desired outcomes in a way that is fair and fully informed.

“Regrettably, the Law Society considers that none of the reform options outlined in the discussion document addresses the defects in the current ACC appeals system,” the Law Society says.

“Any change would need to be a clear improvement on the status quo. There is no indication that would be the case under any of the proposals for change.”

While the Law Society says it supports continuing the current ACC appeals system in preference to the reform options, it says there is no doubt that improvements can and should be made to the current system.

The main factors contributing to delay and cost in progressing appeals to a hearing appear to be difficulties in obtaining expert evidence, delays in the system, problems with the review process and issues with legal aid and representation.

“The main reasons for delay appear to be a combination of systemic issues in the review and appeal processes,” the Law Society says.

“It is apparent, however, from the discussion document that there is a general trend of improving figures, and delays are reducing. The discussion document ... notes that ‘further work will be carried out to evaluate whether [current] initiatives can substantially and sustainably reduce the average age of appeals. This would take the pressure off the District Court, which may affect whether or not to establish the [proposed Accident Compensation Appeal] Tribunal’.

“That further evaluation data must be central to informing the analysis of the advantages and disadvantages of a change to the status quo.”

Noting that it is committed to supporting the long-term sustainability of the ACC compensation scheme, the Law Society says it would welcome further engagement with the Minister and officials about viable reform options.

Support for Official Information Act extension

The New Zealand Law Society says it supports a bill that applies the existing provisions of the Official Information Act to Parliamentary Under-Secretaries in the same way as Ministers, when acting in that official capacity.

The Law Society has presented a submission to Parliament’s Government Administration Committee on the Official Information (Parliamentary Under-Secretaries) Amendment Bill.

Spokesperson Jason McHerron says Parliamentary Under-Secretaries are part of the executive arm of government, exercise ministerial powers, and are already treated the same as Ministers under other legislation.

“It’s therefore appropriate that the public will be able to request official information held by a Parliamentary Under-Secretary in their official capacity,” he says.

“Parliamentary Under-Secretaries will also be able to rely on the same grounds as Ministers when considering whether or not to withhold official information.”

Enduring powers of attorney regime failing to protect the vulnerable

Laws to protect people if they become mentally incapacitated are failing, the New Zealand Law Society says.

And proposed changes to make it easier and cheaper to establish those protections are unlikely to work, Law Society spokesperson Dr Allan Cooke told Parliament’s Government Administration Committee on 30 March.

Under the Protection of Personal Property Act 1988 a person can set up an enduring power of attorney (EPA), appointing someone else (an “attorney”) to act on their behalf, if they become mentally incapable.

Safeguards were added to the Act in 2007 to better protect people setting up EPAs and prevent potential abuse, Dr Cooke said.

However, those amendments have created problems. It has become significantly more complex and expensive to set up an EPA, and there has been a marked drop in the number of EPAs created since 2007, he said.

“That means an increasing number of people, for reasons of cost, have not made their own decision about who should be their substituted decision-maker if they lose their mental capacity.”

The Law Society has recommended that key parts of the EPA regime be simplified to increase protection for mentally incapable people without adding unnecessary cost and complexity.

Difficulties with Minimum Wage for Contractors Bill

A bill intended to protect contract workers by requiring them to be paid at least the minimum hourly wage may inhibit contracting flexibility and not achieve its purpose, the New Zealand Law Society says.

The bill requires a principal party who engages a contractor in one of the specified service industries to keep a record of time taken to provide particular services, if the contract doesn’t specify a time for completion.

“But the nature of contracting makes this difficult” says Michael Quigg, Convenor of the Law Society’s Employment Law Committee, “so the bill may mean fewer types of contracts are used, reducing flexibility”.

Further, people who can’t or won’t complete the job in the specified time will be precluded from entering into such contracts. “Alternatively, contractors may simply accept the terms of engagement, but work longer than the specified hours, effectively losing the benefit of the bill’s stated purpose,” Mr Quigg says.

The Law Society also notes the bill allows multiple pathways to bring a claim for recovery and submits that claimants should have to elect which recovery path they choose.

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