The compensation of crime victims in New Zealand differs from other countries in that crime victims are treated in the same way as accident victims by New Zealand’s state owned ACC (Accident Compensation Corporation).
ACC is the sole and compulsory provider of accident insurance in New Zealand for all physical and/or psychological injuries. In July of 1999 the government allowed private insurance operators to provide work-related accident insurance, and ACC was briefly exposed to competition. Following the election of the Fifth Labour government in November 1999, competition was repealed, and as of the 1st July 2000, ACC was re-instated as the sole provider of accident insurance coverage.
The ACC Act came into being after a Royal Commission chaired by Mr Justice Woodhouse (the Woodhouse Commission) was appointed in 1966 to review workers’ compensation, but went beyond its remit and submitted a significant report in 1967 which embodied the “social contract” approach to accident compensation given legal effect in 1972. The result was a legislated scheme of social insurance and the ousting of other remedies, including civil actions under the law of tort. However, as Ursula Cheer (1995) Lecturer in Law, University of Canterbury points out, “when governments enact comprehensive legislation, they coincidentally enact for themselves the right to amend that legislation on an on-going basis.”1
The ability for the government to “amend” legislation would come back to haunt New Zealanders’ and greatly compromise the original intent of the Woodhouse Commission’s findings.
I.e. The Woodhouse Commission had based its wide-ranging proposals on five key principles. These being:
1) Collective or community responsibility
2) Comprehensive entitlement
3) Complete rehabilitation
4) Real compensation
5) Administrative efficiency
However, things changed significantly from the Woodhouse Commission’s “social contract” paradigm to a desire to control the expenditure associated with the scheme and to “balance the books” after the 1990 elections when the NZ National party sort to reform the scheme in terms of its fairness and affordability. Costs were seen to be rising and insufficient funding was predicted by the end of 1993. As a result, the Accident Rehabilitation and Compensation Insurance Act (ARCIA) 1992 came into being. The outcome was a government corporation acting as insurance company while, at the same time, limiting its liability.2
Since 1992 successive changes have been made to the ACC Act, all of which have further watered down the original intent of the Woodhouse Commission’s “social contract” beginnings.
The end result? Todays ACC is slated by watchdogs and media for, among other things, the use of hatchet doctors (a small group of doctors claimed to receiving large payments in return for medical assessments that help the corporation take costly, long term claimants off its books), acting illegally, breach of privacy, cronyism and failure of duty of care.
Further, the ACC loses 50% of all claim cases that go to independent review. The ACC Independent review process is a formal process where both sides (the ACC and the claimant) meet with an independent and unbiased reviewer. The reviewer looks at all of the information that has been provided and makes a decision on what needs to be done to resolve the dispute. This can be anything from upholding the original ACC decision to overturning it, including decisions about money and payments.
Most benefits are now paid under rigid regulation which do not provide any discretion. Lump sum payments have been abolished and replaced with “independence allowances” of up to $84 NZD per week for a 100 per cent disability. There are limits on claims for mental injury which essentially exclude such claims unless the mental injury is an outcome of physical injuries to that person. Consequently, it has been necessary for the Act to be amended to provide specific remedies for “victims” of sexual crimes and historic abuse.3
These claims fall under the mandate of the ACC’s Sensitive Claims Unit (SCU).
ACC Sensitive Claims Unit
Upon even vague inspection the ACC’s Sensitive Claims Unit is anything but “Sensitive”. For instance, in 2007 nearly 6000 claims were lodged. Some 3991 were accepted and 1928 were declined. By 2012 only 49 claims were accepted. Ten per cent of claims were accepted in 2010; 4 per cent in 2011; and 4 per cent in 2012.” (Source: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10820174)
Additionally, opinion surrounding the ACC’s Sensitive Claims Unit is hardly encouraging.
From Access Support Services (January 2010):
“Access Support Services understands ACC are looking at stopping all entitlements to claimants who lodged sexual abuse claims under former Acts if the actual abuse occurred prior to the introduction of the ACC scheme in 1974. If this is the case then hundreds, if not thousands, of claimants suffering from a mental illness caused by sexual abuse will be exited from the ACC scheme.”
“Access Support Services considers this policy change is wrong in law and its advocates will vigorously challenge any decision ACC makes to revoke cover for this group of claimants” said Mr Wadsworth. “If ACC do implement this new attack on claimants suffering from sexual abuse then, in my opinion, it will have blood on its hands.”
Later, outlining in November 2010:
“Last year ACC’s Sensitive Claims Unit (SCU), based in Wellington, implemented its new clinical pathways for claimants suffering from the effects of sexual abuse. It also adopted the so-called “tough love” policy drafted by one of its senior officials, Phil Riley, who set out a strategy on how to exit claimants from the Scheme, including suspending entitlements.”
From Scoop Media (November 2010):
“Shutdown ACC’s ‘Sensitive Claims Unit’
Last year ACC’s Sensitive Claims Unit (SCU), based in Wellington , implemented its new clinical pathways for claimants suffering from the effects of sexual abuse. It also adopted the so-called “tough love” policy drafted by one of its senior officials, Phil Riley, who set out a strategy on how to exit claimants from the Scheme, including suspending entitlements.
The consequence of these two policies is that the SCU often requires rape victims to undergo multiple physiatrist assessments or risk having entitlements suspended or not provided at all. This heavy handed approach has a re-traumatising effect on victims of sexual abuse.”http://www.scoop.co.nz/stories/PO1011/S00087/shutdown-accs-sensitive-claims-unit.htm
From stuff.co.nz (November 2011):
“ACC has been accused of breaking the law by refusing to comply with a review ordering it to reinstate rehabilitation for a rape complainant.
The woman said she was making good progress under the Accident Compensation Corporation “training for independence” programme – until the corporation cut her from the programme last October.
She later successfully challenged the decision, with reviewer Rex Woodhouse concluding ACC “was wrong in suspending the applicant’s ongoing entitlements”.
He quashed ACC’s decision in July and said the corporation “must now reinstate the applicant’s entitlements”.
But ACC has told the woman, whose name is suppressed, that she must be assessed by another psychiatrist – at least the fourth different psychiatrist since her claim was accepted by ACC.
This comes as the Government considers whether to lower levies for taxpayers in return for reduced benefits.
The woman’s Wellington lawyer, Johanne Greally, said ACC was breaking the law and trying to change the rules.
Until ACC cut the woman from the independence programme in October last year, her only entitlement was that programme, Mrs Greally said.
“The review did not tell ACC to give her another psychiatrist and then look at her entitlements … ACC are bound by the reviewer’s decision. That’s the law.”
- © Fairfax NZ News
From voxy.co.nz (August 2009):
“Louise Nicholas, Survivor Advocate for Rape Prevention Education, is absolutely disgusted with ACC Sensitive Claim Unit’s (SCU) proposed changes that will make it harder for survivors of rape and sexual abuse to access therapy.
Currently survivors have 4 sessions with a counsellor to disclose their abuse experiences before their claim is assessed for ongoing therapy. Often survivors will choose to have ongoing therapy with the counsellor that they have already built a relationship with.
The new Clinical Pathway which is proposed to come into effect 14th September 2009, will make the survivor tell their “story” three times to three different professionals and they can be declined help at any stage in this process; they have to ‘prove’ they have a mental injury which fits the criteria for a psychiatric problem.
A person who has been affected by rape or sexual abuse can take many years to disclose their trauma.
Finding someone who they can trust to disclose to is often a major issue as there are many barriers that need to be dealt with before they even get to the stage of being able to talk about the actual abuse incident.
Many survivors, especially children, are threatened by the perpetrator with loss of their lives or whanau and friends lives if they tell, or “no-one will believe you if you tell, you will be called a liar…
I am shocked to see that ACC state that “shorter term therapy is more beneficial for clients than longer term therapy”.
Many survivors, including myself, speak about the difficulty in being able to open up and talk about their experiences which needs to be at their own pace and with someone they trust which is vital in their healing process.
The ACC Draft Clinical Pathways Provider Workshop that I attended in Auckland this month, was not about seeking “better services” for survivors; in my opinion it was obviously about cutting costs.”
From stuff.co.nz (March 2012):
“ACC apologises over privacy breach
An ACC sensitive claims client was “horrified” to hear that personal details of 250 clients of the unit had been sent nationwide and to a member of the public.
The details were among more than 9000 ACC claims – some featuring well-known people – that were emailed to a person who should not have received them, in what is being described as one of the worst privacy breaches in New Zealand history.
The sensitive claims unit deals with the cases of rape and sexual abuse victims.
The details revealed included full names, the nature of each claim and dispute, and individual claim numbers.”
From NZ Newswire (August 2012):
“ACC frustrated by new privacy breach claim
The ACC is asking a person alleging to have been sent a list of information about other claimants to come forward, in a new potential mass privacy breach by the state-owned accident insurer.
“Well, well, well I have just received my IT Sweep with a list of names regarding review dates and reason for review and claim numbers, what shall I do??” a claimant named chroy wrote on ACCforum this week, after seeking copies of all ACC’s files on their claim.
ACC’s privacy officer Miriama Henderson called on chroy to come forward and return the information.
Chroy posted that the matter was being dealt with accordingly and that it was not morally right to tell anyone anything.
ACC spokeswoman Stephanie Melville told NZ Newswire that ACC was continuing to investigate the matter and until the person came forward the insurer was unable to confirm if there had been a privacy breach.
If there was a privacy breach the Privacy Commission and affected claimants would be informed.
“The person hasn’t come to us and that is frustrating,” she said.
The ACC’s chairman, chief executive and three board members have resigned as part of the fallout from a mass privacy breach earlier revealed by claimant Bronwyn Pullar.
The Auditor-General’s office and private auditors are investigating how information about 6700 claimants was sent to Ms Pullar.” http://au.news.yahoo.com/queensland/a/-/latest/14514039/acc-frustrated-by-new-privacy-breach-claim/
And from Fairfax NZ News (June 2012) – the state of play:
“Parliament is in urgent debate following the resignation of ACC chief executive Ralph Stewart today.
Labour MP Andrew Little requested the debate and it was agreed by deputy Speaker Eric Roy.
Little said the current condition of ACC was “disgraceful” and people were leaving like rats from a sinking ship.
He called for ACC Minister Judith Collins step down, saying the corporation needs a minister who could be focused.
“We need a minister that looks after ACC,” he said.
Stewart quit this morning following a boardroom cleanout which has claimed chair John Judge, deputy John McCliskie and another director Rob Campbell.”
1 and 2) Ursula Cheer (1995) Social policy implications arising from
legal aspects of New Zealand’s latest accident compensation scheme
3) John Miller. Compensating Crime Victims within New Zealand’s No Fault Accident Compensation Scheme: The Advantages and Disadvantages