Author: Whineray, Sally
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Injury Prevention, Rehabilitation, and Compensation
^Amendment ^Bill

5 October 2009
ATTORNEY-GENERAL LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
INJURY PREVENTION, REHABILITATION, AND COMPENSATION AMENDMENT BILL

1.   We have considered whether the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (PCO 13954/6.0) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’).  We understand that the Bill is likely to be considered by Cabinet at its meeting on Monday, 12 October 2009.
2.   We also understand that the Bill might still be subject to some minor textual changes before it is submitted to Cabinet.  It is unlikely that those changes will raise any
issues under the Bill of Rights Act, but we will provide you with further advice should this prove necessary.
3.   The Bill introduces amendments to the Injury Prevention, Rehabilitation, and Compensation Act 2001 (‘the Act’).  The purpose of the amendments is to improve flexibility in the Accident Compensation Corporation (ACC) scheme, facilitate cost containment, and provide for closer working relationships between government agencies and ACC.  The main areas of amendment are to:

•	the treatment of residual claims liabilities;
•	cover for work-related injuries and injury related hearing loss;
•	weekly compensation eligibility and entitlement; and
•	definitions and processes for vocational independence.

ISSUE OF CONSISTENCY WITH THE BILL OF RIGHTS ACT Section 19(1) Freedom from Discrimination
Section 19(1) of the Bill of Rights Act provides:

"Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993."

Section 21 of the Human Rights Act 1993 specifies the prohibited grounds of discrimination. One of the grounds of discrimination is "disability" which is defined to include psychiatric illness, intellectual or psychological disability or impairment, or any other loss or abnormality of psychological, physiological or anatomical structure or function.

In our view, taking into account the various domestic and overseas judicial pronouncements as to the meaning of discrimination, the key questions in assessing whether discrimination under s 19 exists are:

i.   does the legislation draw a distinction based on one of the prohibited grounds of discrimination?

ii.   does the distinction involve disadvantage to one or more classes of individuals?

If these questions are answered in the affirmative, we consider that the legislation gives rise to a prima facie issue of "discrimination" under s 19(1) of the Bill of Rights Act.  Where this is the case, the legislation falls to be justified under s 5 of that Act.

POSSIBLE DISCRIMINATION ON GROUNDS OF DISABILITY

We have considered whether cl 10 could give rise to an issue of discrimination under s 19(1)
of the Bill of Rights Act.

Clause 10 (New section 119 inserted)

Clause 10 inserts a new section 119 into the Act.  New section 119(1) has the effect of preventing the Corporation from providing any entitlements under Schedule 1 of the Act (which sets out the rehabilitation and weekly compensation under the Act) for persons who wilfully self-inflict a personal injury or commit suicide.  New section 119(3) provides exceptions to disentitlement in circumstances where the personal injury or death was a result of:

•	a mental injury because of a physical injury suffered by the claimant for which he or she had cover, or
^•	^a ^mental ^injury ^suffered ^by ^the ^claimant ^as ^the ^victim ^of ^certain ^criminal ^acts
^(primarily ^relating ^to ^sexual ^offences).

We have considered whether cl 10 raises an issue of intra-ground discrimination between individuals whose self-inflicted personal injury or suicide was the result of a mental injury or mental illness that does not meet the exceptions in new section 119(3) and individuals in a similar situation whose mental injury does meet the exceptions.

We note, however, the approach taken by the High Court in Trevethick v Ministry of Health when identifying discrimination on the grounds of disability under section 21(1)(h) of the Human Rights Act.[1]  The High Court found that the definition of “disability” did not extend to the cause of a disability.  This means a distinction based on the cause of a disability falls outside the prohibited grounds of discrimination.  In that case it was found that the cause of the disability (namely multiple sclerosis) was the basis of the different treatment between those covered under ACC and those covered under the health system.  As a result, the High Court found there was no case for claiming discrimination.

It is clear that the High Court’s approach in Trevethick should be applied in this instance.[2] The “cause of” the mental injury is the basis for the difference in treatment under cl 10. Individuals covered by the exceptions outlined under new section 119(3) suffer from a mental injury resulting from specified circumstances, namely a physical injury or certain criminal acts. In contrast, those who are excluded suffer from a mental injury arising from

other causes, such as genetics, early development, drugs, disease, or neurocognitive or psychological mechanisms.

Following Trevethick we consider that cl 10 does not create a distinction based on one of the prohibited grounds of discrimination.  The clause does not therefore raise a prima facie
issue of discrimination under s 19(1) of the Bill of Rights Act.

CONCLUSION

This advice has been prepared by the Public Law Group and the Office of Legal Counsel.  We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr
Chief Legal Counsel
Office of Legal Counsel

Footnotes:

1.   (2008) 8 HRNZ 485
2.   (2008) 8 HRNZ 485,br />

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Injury Prevention, Rehabilitation, and Compensation Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter.