Work and study
In 2011, while in my third year at the University of Otago, I started an internship with Warren Forster, a specialist in New Zealand’s personal injury system, dominated by its unique no-fault accident compensation scheme (known as “ACC”).
During this time, I was highly motivated by the stories I heard and saw of vulnerable people who were being treated unjustly by sophisticated legal, medical and administrative systems. My interest in the area was driven by interest in public law and human rights as much as it was by interest in health and disability policy. I felt obliged to use my education and skills for the public good and wanted to find options beyond corporate law and my Russell McVeagh scholarship.
This early internship became part-time work throughout the rest of my undergraduate study, and then a full-time position from 2014 onward. I supported Warren in his research, advocacy and litigation activities in the personal injury system through to around 2018, with many others playing a key role in our work during this period.
Key activities
During this time, work consisted of several main activities, driven by Warren’s comprehensive strategic approach:
- Media engagement,
- Strategic engagement with public servants and Ministers of the Crown
- Strategic litigation
- Freedom of information (or “official information”) and privacy legislation requests
- Research (both doctrinal legal research, and socio-legal research).
My work during this time directly led to subsequent projects with the Brainbox Institute and also the establishment of Syncopate Lab – in particular:
- the judgments as data project was driven by automated analysis of the kinds of socio-legal research described below.
- the legislation as code project was driven by my concern about the automated implementation of a specific interpretation of the law as code, the use of automated systems by government entities, and encountering Hamish Fraser’s work with others on converting accident compensation and social welfare legislation into machine executable formats (or code).
Other topics, outputs and achievements
Artificial intelligence and law
In 2017, I researched and collated material on an artificial intelligence system (using predictive analytics) being used by the Accident Compensation Corporation (ACC).
That work led to a front-page story in the New Zealand Herald. The story was published the week before the 2017 General Election (held on 23 September 2017).
A series of regulatory documents were later published on government data use and AI systems, with the ACC example being a notable example in the overall landscape (more here).
Privacy
I played a supporting role in litigation that challenged ACC’s authority to require claimants to sign a privacy consent form (the “ACC167” standard form).
Claimants were being told it was a legal requirement to sign the form and consent to information collection and disclosure in order to receive their legal entitlements.
The Court concluded that even at “a casual glance” the form went beyond the scope of what ACC was authorised to require, overturning a long line of precedent upholding the legality of the form. Our assessment was that this threw into doubt the legal authority for a substantial amount of the personal information collected by ACC while the form was in place - for several years at least. The cases were Powell v Accident Compensation Corporation [2014] NZACC 89 and K v Accident Compensation Corporation [2014] NZACC 90.
Strategic litigation
I played a key supporting role in a series of cases that targeted key systemic and procedural points in the ACC system (identified by Warren Forster) that undermined access to justice for injured people. There were also numerous decisions by lower level independent reviewers, which are not routinely published. Published judicial decisions include:
| Case | Issue |
|---|---|
| Green v Accident Compensation Corporation (Cover) [2018] NZACC 17 | Jurisdiction, issue estoppel |
| Dickson-Johansen v Accident Compensation Corporation (Costs on Appeal) [2018] NZACC 36 | Entitlement to scale costs without artificial limitation |
| Kane v Accident Compensation Corporation (Interest on Weekly Compensation) [2018] NZACC 32 | Procedural, entitlement to weekly compensation, entitlement to interest |
| Nicholls v Accident Compensation Corporation (Revocation of Decision Jurisdiction) [2018] NZACC 7 | Jurisdiction, scope of cover, right to appeal |
| Thirring v Accident Compensation Corporation (Reviewable Decision) [2017] NZACC 99 | Jurisdiction, assessment of relevant earnings |
| Bradshaw Estate of v Accident Compensation Corporation (Cover Issues) [2017] NZACC 52 | Appeal, jurisdiction, entitlement to interest, intersection with social welfare system |
| Pearson v Accident Compensation Corporation (Weekly Compensation) [2017] NZACC 58 | Jurisdictional, historic claims, assessment of earnings |
| Dickson-Johansen v Accident Compensation Corporation [2016] NZACC 314 | Scope of cover, procedural, deemed decisions, legal status of digital systems |
| Kirk v Accident Compensation Corporation [2016] NZACC 313 | Entitlement to interest, procedural, intersection with social welfare system |
| B v Accident Compensation Corporation [2016] NZACC 312 | Procedural, jurisdictional, evidential, historic claims |
| Chalecki v Accident Compensation Corporation [2016] NZACC 202 | Jurisdictional, historic claims |
| Moloney v Accident Compensation Corporation [2016] NZACC 182 | Cover, definition of physical injury |
| Anderson v Accident Compensation Corporation [2016] NZACC 164 | Cover, evidential, jurisdictional |
| Kirk v Accident Compensation Corporation [2016] NZACC 48 | Procedural, entitlement to interest |
| Gibson v Accident Compensation Corporation [2015] NZHC 221; [2015] 3 NZLR 136; [2015] NZAR 207 | Definition of “decision”, jurisdictional |
| Turner v Accident Compensation Corporation [2015] NZACC 59 | Jurisdictional |
| Sutton v Accident Compensation Corporation [2015] NZACC 55 | Jurisdictional |
| Chalecki v Accident Compensation Corporation [2015] NZACAA 1; [2015] NZACA 1 | Historic claims, procedural, jurisdictional |
| Langdon v Accident Compensation Corporation [2014] NZACAA 9; [2014] NZACA 9 | Historic claims, assessment of incapacity and earnings |
| K v Accident Compensation Corporation [2014] NZACC 90 | Privacy and claimants’ rights |
| Powell v Accident Compensation Corporation [2014] NZACC 89 | Privacy and claimants’ rights |
| Chalecki v Accident Compensation Corporation [2012] NZACAA 16; [2012] NZACA 16 | Historic claims, jurisdictional |
| Cole v Accident Compensation Corporation [2012] NZACC 255 | Definition of accident and cover |
Personal injury system
Warren Forster coined the term “personal injury system” to better describe the no-fault system of managing personal injury in New Zealand, rather than being “the ACC system”. Warren pointed to the role that a number of agencies had in assessing causation of injury and performing a system learning function intended to ensure the circumstances causing an injury or other health condition did not occur again. This more accurately situates the Accident Compensation Corporation and the statutory scheme within a broader justice and health policy context.
In our 2017 report, “Solving the problem”, we outlined the scope of this personal injury system, which notably extends far beyond “injury” into disease and medical misadventure, and frequently does require allocation of causation, even if “fault” is not required to access entitlements.
The personal injury system in New Zealand is notable because it is managed almost entirely by public sector agencies, engaging a range of issues of public law and human/civil rights associated with the interaction of governments and citizens. We identified two groups of institutions:
- management institutions, responsible for directly managing the prevention, causation and treatment of personal injury and its consequences; and
- regulatory institutions, which are institutions intended to monitor the functioning of the management institutions as public entities, and ensure they are performing as intended.
A core conclusion of our work was that there was no dedicated institution responsible for the management of the personal injury system as a whole, despite its significant financial, social and economic impact in New Zealand. The only institution responsible for system oversight was the Accident Compensation Corporation, which faces conflicting interests in the management of the system, and is subject to political pressures from the government of the day. We pointed to a long line of investigations and inquiries going back to the 1970s illustrating times where ACC’s conduct was in question in the management of the system.
We concluded a personal injury commissioner should be established, and we were not the first to do so, pointing to the 1994 report by Judge Ian Trapski concluding the same. We also identified a number of functions the commission should perform related to transparency, oversight, system monitoring, and system navigation, ensuring that injured people are not caught between the numerous institutions comprising the overall system.
Socio-legal qualitative/quantitative analysis
In 2015, “Understanding the Problem” provided the first comprehensive analysis of access to justice barriers in New Zealand’s accident compensation system. This research involved qualitative and quantitative analysis of over 500 judicial decisions. The report identified four critical barriers: access to law, access to representation, access to evidence, and “being heard.” It received a foreword from then-Justice Helen Winkelmann, now Chief Justice of New Zealand. The report’s findings were independently validated through a review by Miriam Dean QC, commissioned by the Minister for ACC, leading to Cabinet accepting all recommendations in 2016.
The work was funded by the New Zealand Law Foundation. In a later project using judgments as a data source, we attempted to perform similar analyses using algorithmic systems (see judgments as data).
Legal and policy design
Building on the foundation established by the Understanding the Problem report, the 2017 “Solving the Problem” report proposed two major reforms to address these systemic issues:
- A redefinition of how “causation” is assessed under the ACC scheme, moving away from overly technical medical-legal interpretations toward a more transparent and principled approach that recognised the policy foundations of the scheme.
- The establishment of a Personal Injury Commissioner to coordinate the various institutions managing personal injury in New Zealand, provide system navigation support through advocates, and enhance transparency and accountability in the system.
These reports represented significant contributions to improving access to justice in New Zealand’s personal injury system and influenced policy development in accident compensation dispute resolution. The work included extensive engagement with government agencies, medical professionals, legal practitioners and affected people. The work was funded by the New Zealand Law Foundation.
United Nations Committee on the Rights of Persons with Disabilities
In 2014 I attended the examination of the New Zealand Government at the Palais Wilson against its compliance with the Convention on the Rights of Persons with Disabilities. We received a shadow report award to support the shadow reporting process from the New Zealand Law Foundation and successfully achieved a concluding observation by the Committee against New Zealand’s approach to disability rights, access to justice, and the Accident Compensation system. Committee observations included:
- “The Committee recommends that the State party examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus.”
- “The Committee recommends that organizations representing persons with disabilities be consulted about the proposal to establish an accident compensation tribunal. The Committee also recommends that the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal.”
Accessibility legislation
I played a core role in designing enforceable accessibility legislation for New Zealand alongside Warren Forster and Curtis Barnes. I drew on my experience in disability policy, past work with the UN Convention on the Rights of Persons with Disabilities, and work in access to justice and dispute resolution.
Our report outlines the legislative framework for the system, by using the legislation guidelines to translate specifications from the Access Alliance - a coalition of disabled peoples’ organisations - into formal policy formulations suitable for Parliamentary Counsel’s Office.
The design continues to receive support from the Access Alliance. This work built upon my earlier involvement with disability rights advocacy, including participation in UNCRPD shadow reporting and engagement with the UN Committee in Geneva.
Review by Queen’s Counsel
My work with Warren Forster and Acclaim Otago in 2015 initially identified four critical issues in accident compensation dispute resolution: being heard, access to law, access to evidence, and access to representation. Notably, Justice Helen Winkelmann (now Chief Justice of New Zealand) provided a foreword to the report, highlighting its significance.
In response, then Minister for ACC, Hon Nikki Kaye, appointed Miriam Dean QC to perform a review of our findings with the responsible Crown Ministry (the Ministry for Business, Innovation and Employment (MBIE)).
The “Understanding the Problem” report was foundational to this process. It involved a qualitative analysis of over 500 judicial decisions to identify access to justice barriers such as absence of relevant evidence, self-representation, and other indicators. This comprehensive research substantiated the concerns about the dispute resolution system.
The review process involved:
- Engaging with MBIE officials to investigate dispute resolution inefficiencies
- Collaboration with Miriam Dean QC in her independent review
- Substantial confirmation of our findings by Dean’s report
In 2016, Cabinet accepted all recommendations from the Independent Review, validating the importance of our original research and advocacy work in improving the accident compensation dispute resolution process.
Professional practice, medical ethics, legal ethics
During the course of this phase of work, I dealt frequently with professional practice codes of conduct and professional ethics related to both medical practitioners and legal practitioners.
Scheme Advisory Panel
ACC established a customer advisory programme made up of a series of external advisory panels in 2018. This programme followed our repeated observations about ACC’s inability to incorporate feedback from others in the personal injury system about how its operational decisions were impacting the wider system. One panel was a “Scheme Advisory Panel” administered by ACC and the Ministry for Business, Innovation and Employment, stretching across a range of different system-level issues, as distinct from a legal advisors panel and a range of other panels.
The panel’s scope included horizon-scanning, identifying systemic issues, scheme “health checks”, and testing specific policy and scheme changes. Given my role in advocating for enhanced system learning and my interest in policy development beyond government, I felt obliged to join the panel, and did. Other panel members included:
- The Chief Executive of the New Zealand Medical Association
- People with lived experience of disability, or with family members with disability covered by ACC
- A senior representative of the New Zealand Nurses’ Organisation
- People with experience and insight into cultural groups, including Māori and Pasifika communities
- Other legal representatives
- A specialist rehabilitation academic
As a panel member, I also participated in related work programmes, including an extended programme related to funding the costs of treatment provided by general practitioners that involved close work with a range of health professionals. With another panel member, I also presented directly to the Board of Directors of ACC on an array of issues related to scheme administration, system design, and dispute resolution.
Other topics covered by the panel at various times included:
- Treatment injury
- Artificial intelligence
- The Treaty of Waitangi / te Tiriti o Waitangi
- Approaches to litigation and dispute resolution
- Birth injury
- Cost of treatment regulations
- Scheme boundaries and scope of cover
- Professional scope of practice matters for health professionals
Transition to tech policy
In 2018, I had spent just under a decade working on medico-legal systems and health policy, including through my undergraduate studies. I had begun to investigate the role of artificial intelligence in public policy, including by ACC itself, and was becoming more deeply involved through discussions with Brainbox Institute co-founder, Curtis Barnes, during the course of his LLM studies on the ethical status of embodied AI systems.
Following the Brexit referendum, the Cambridge Analytica revelations, and the election of President Donald Trump in 2016, my attention turned to technology policy, artificial intelligence, disinformation, and the regulation of social media, eventually leading to the award of a grant from the New Zealand Law Foundation to investigate New Zealand’s preparedness for deepfake and synthetic media technology, and the establishment of the Brainbox Institute.