Earlier this year, the New Zealand Law Society | Te Kāhui Ture o Aotearoa made a submission on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill, recommending a number of changes to ensure the Bill meets its objectives.
The Bill seeks to amend the Accident Compensation Act 2001 (Act) to extend ACC cover to an exhaustive list of maternal birth injuries set out in Schedule 2 of the Bill. The Bill was referred to the Education & Workforce select committee in December 2021.
The select committee has now reviewed the Bill and recommended several amendments to improve the Bill. However, the Law Society considers that further amendments are needed to ensure the Bill provides more equitable coverage for maternal birth injuries.
“As currently drafted, the Bill will only have prospective effect, and provide for cover for maternal birth injuries which occur after this legislation comes into effect,” says Peter Sara, convenor of the Law Society’s Accident Compensation Committee.
“In our view, the Bill should have retrospective, as well as prospective effect so all maternal birth injuries specified in the Bill are covered, notwithstanding the date on which they occurred.”
The Law Society acknowledges that legislation should generally have prospective, and not retrospective effect. However, in the current circumstances, it would be appropriate to provide for both retrospective and prospective cover because the proposed amendments are intended to benefit of those affected, and improve gender balance, fairness and equity in the ACC scheme.
The Law Society also recommended amending the Bill to provide that the list of maternal birth injuries in Schedule 2 is a non-exhaustive list.
“A non-exhaustive list would allow ACC to exercise some discretion when determining cover, and ensure that injuries which are not listed in the schedule, but have the same characteristics as injuries that are already covered under the Act, are also covered,” says Mr Sara.
The Law Society welcomes the select committee’s recommendation to amend the Bill, and to require the Minister to review the list of birth injuries three years after the legislation comes into force. However, the Law Society considers that this review should be undertaken on a regular basis (for example, every three years) to ensure these provisions continue to be fit for purpose.
The Law Society would welcome these issues being addressed by way of a Supplementary Order Paper, when the Bill is before the Committee of the whole House.
Source: lawsociety.org.nz
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