Compensation for Live Organ Donors Act 2016

1: Title
This Act is the Compensation for Live Organ Donors Act 2016.
2: Commencement
1: This Act comes into force on the earlier of—
a: a date appointed by the Governor-General by Order in Council; and
b: the first anniversary of the date on which this Act receives the Royal assent.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
3: Purpose
The purpose of this Act is to remove a financial deterrent to the donation of organs by live donors.
4: Interpretation
In this Act, unless the context otherwise requires,— application date
a: means the date on which an application under Part 3
b: for the purposes of Schedule 2 section 18(2) approved overseas organ exchange programme Schedule 5 collect Director-General donor surgery earnings section 5 employment
a: means work engaged in or carried out for the purposes of pecuniary gain or profit; and
b: in relation to an employee, includes a period of paid leave, other than paid leave on the termination of employment foreign-sourced amount section YA 1 health practitioner section 5(1) medical practitioner
a: is, or is deemed to be, registered with the Medical Council of New Zealand as a practitioner of the profession of medicine; and
b: holds a practising certificate number of weeks
a: the number of full weeks plus any part week (expressed as a portion of a week), if the period is 1 week or more; and
b: a part week (expressed as a portion of a week), if the period is less than 1 week payment period section 10 12 practising certificate section 5(1) qualifying donor section 9 qualifying organ
a: kidney:
b: liver:
c: any other type of human organ declared by regulations to be a qualifying organ reduced hours usual hours
a: the donor’s hours of employment per week as specified in the donor’s employment agreement; or
b: if paragraph (a) does not apply to the donor, or the donor is a shareholder employee or is self-employed, the most common number of hours that the donor works each week as assessed over the 12-week period immediately before the application date. Section 4 approved overseas organ exchange programme inserted 17 November 2019 section 4 Organ Donors and Related Matters Act 2019 Section 4 reduced hours inserted 17 November 2019 section 4 Organ Donors and Related Matters Act 2019 Section 4 usual hours inserted 17 November 2019 section 4 Organ Donors and Related Matters Act 2019
5: Meaning of earnings
In this Act, earnings section 6(1)
a: for the purpose of defining the term, sections 9 to 15
b: the term includes a foreign-sourced amount that the Director-General is satisfied would be earnings if it were treated as having a source in New Zealand under section YD 4
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Earnings compensation and protection of benefits during recuperation
8: Outline of Part
1: This Part is divided into 2 subparts.
2: Subpart 1
a: sets out the criteria that the prospective donor of a qualifying organ must meet in order to be a qualifying donor; and
b: gives qualifying donors an entitlement to compensation for earnings forgone while they recuperate from their donor surgery; and
c: gives the Director-General a discretion, in limited circumstances, to compensate qualifying donors for earnings forgone in the lead-up to their donor surgery.
3: Subpart 2 Social Security Act 2018
4: This section is intended only as a guide to the general scheme and effect of this Part. Section 8(3) amended 26 November 2018 section 459 Social Security Act 2018
1: Earnings compensation for qualifying donors: entitlement and discretionary earnings compensation
9: Who are qualifying donors
1: A person is a qualifying donor in relation to a donor surgery if, on application under Part 3
a: the person will forgo earnings as a result of taking unpaid leave or otherwise ceasing employment to allow for his or her recuperation from the surgery; and
b: both the donor surgery and the surgery to implant the organ will be carried out in New Zealand; and
c: the recipient of the organ is eligible to receive services funded under the Pae Ora (Healthy Futures) Act 2022
d: the organ will be collected, implanted, and dealt with lawfully.
2: For the purposes of subsection (1)﻿(d), the Director-General may assume the organ will be collected, implanted, and dealt with lawfully in the absence of information to the contrary.
3: The criteria in subsection (1)﻿(b) and (c) do not apply if the person—
a: has donor surgery as part of an approved overseas organ exchange programme; and
b: complies with any conditions specified in Schedule 5 Section 9(1)﻿(c) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 9(3) inserted 17 November 2019 section 5 Organ Donors and Related Matters Act 2019 Entitlement to earnings compensation while recuperating
10: Qualifying donors entitled to earnings compensation for up to 12 weeks while recuperating
1: The Director-General must pay a qualifying donor earnings compensation for a period that starts on the date of the donor surgery and ends immediately before the earlier of—
a: the end date set by the Director-General; and
b: the date that the donor returns to employment, or, if the donor returns to employment on reduced hours, the date that the donor resumes employment on usual hours
2: The Director-General—
a: must set as the end date the date on which the Director-General considers the donor will have recuperated sufficiently to safely return to his or her employment; and
b: may, on request or on his or her own initiative, extend the end date if the Director-General considers the donor needs more time to recuperate.
3: However, an end date set or extended under subsection (2) must be no later than 12 weeks after the date of the donor surgery.
4: The Director-General may—
a: set or extend an end date at any time before the end of 12 weeks after the date of the donor surgery (but see section 20(2)﻿(b)﻿(i)
b: rely on the certificate of a medical practitioner when setting or extending an end date.
5: Subsection (6) applies if, within the 12 weeks after the date of the donor surgery, the donor—
a: returns to employment on usual hours; and
b: is subsequently unable to continue working those hours because of the effects of the surgery; and
c: continues to work, but on reduced hours.
6: If this subsection applies, the Director-General must pay a qualifying donor earnings compensation for the period that the donor worked reduced hours within the 12 weeks after the date of the donor surgery. Section 10(1)﻿(b) amended 17 November 2019 section 6(1) Organ Donors and Related Matters Act 2019 Section 10(5) inserted 17 November 2019 section 6(2) Organ Donors and Related Matters Act 2019 Section 10(6) inserted 17 November 2019 section 6(2) Organ Donors and Related Matters Act 2019
11: Rate and payment of entitlement
For earnings compensation payable under section 10
a: set the rate of compensation in accordance with Schedule 2
b: make the payments in arrears on a weekly, fortnightly, monthly, or other regular basis determined by the Director-General. Discretionary earnings compensation for periods before donation
12: Qualifying donors may receive discretionary earnings compensation in limited circumstances
1: The Director-General may, on application under Part 3
a: the donor will forgo earnings during that period in order to undertake 1 or more activities in preparation for the surgery; and
b: the donor would not reasonably be able to undertake the activities without taking leave from employment for that period; and
c: the donor would not undertake the activities unless earnings compensation were paid; and
d: the activities are medically necessary if the surgery is to be carried out.
2: The Director-General may rely on the certificate of a medical practitioner when deciding whether an activity is medically necessary for the purposes of subsection (1)﻿(d).
13: Rate and payment of discretionary earnings compensation
For earnings compensation payable under section 12
a: set the rate of compensation in accordance with Schedule 2
b: make the payment no later than 30 days after the end of the payment period.
2: Exemptions under
Social Security Act 2018 Subpart 2 heading amended 26 November 2018 section 459 Social Security Act 2018
14: Donors of qualifying organs exempt from certain obligations under
Social Security Act 2018
1: This section applies to a person (whether or not a qualifying donor) who—
a: has donor surgery; and
b: is a beneficiary who is subject to work-preparation obligations, work-test obligations, or obligations under section 162 164 166 167
2: The person must be treated as having an exemption from the obligations under section 158 MSD
3: MSD MSD
4: Sections 158(2), (3), and (4) 160
5: In this section, beneficiary MSD work-preparation obligations work-test obligations Schedule 2 Section 14 heading amended 26 November 2018 section 459 Social Security Act 2018 Section 14(1)﻿(b) amended 26 November 2018 section 459 Social Security Act 2018 Section 14(2) amended 26 November 2018 section 459 Social Security Act 2018 Section 14(3) amended 26 November 2018 section 459 Social Security Act 2018 Section 14(4) amended 26 November 2018 section 459 Social Security Act 2018 Section 14(5) replaced 26 November 2018 section 459 Social Security Act 2018
15: Appeal to medical board
A person to whom section 14 section 411 Section 15 amended 26 November 2018 section 459 Social Security Act 2018
3: Administration and other matters
Applications
16: Applications to be qualifying donor or for discretionary earnings compensation
1: A person must apply to the Director-General in writing if the person wishes to—
a: be a qualifying donor; or
b: receive discretionary earnings compensation.
2: An application to be a qualifying donor must be made at least 60 days before the date scheduled for the donor surgery.
3: However, the Director-General may accept an application made after that deadline if the Director-General considers there is sufficient time to decide the application before the scheduled date.
17: Decisions on applications
1: As soon as practicable after receiving an application and any information provided under section 19
a: approve the application and set the rate of earnings compensation payable; or
b: decline the application if,—
i: for an application to be a qualifying donor, the Director-General is not satisfied that all of the applicable criteria in section 9
ii: for an application for discretionary earnings compensation, the Director-General is not satisfied that all of the conditions set out in section 12(1)
iii: for either kind of application,—
A: the Director-General is not satisfied that the information provided for use in setting the rate of earnings compensation is accurate; or
B: section 19(2)﻿(a)
2: If the related donor surgery has not occurred, a decision to approve an application to be a qualifying donor expires—
a: 3 months after the date on which the applicant receives notice of the decision; or
b: on a later date notified in writing to the applicant by the Director-General. Section 17(1)﻿(b)﻿(i) amended 17 November 2019 section 7 Organ Donors and Related Matters Act 2019
18: When Director-General may revoke or revise decisions
1: Before the start of a payment period, the Director-General may do 1 or more of the following:
a: revoke a decision to approve an application if,—
i: for an application to be a qualifying donor, the Director-General considers that 1 or more of the applicable criteria in section 9
ii: for an application for discretionary earnings compensation, the Director-General considers that 1 or more of the conditions set out in section 12(1)
b: revise a decision on the rate of an applicant’s earnings compensation by substituting a new rate, if the Director-General considers that—
i: the rate originally set is significantly different from the rate at which the applicant will actually forgo earnings during the payment period; and
ii: the difference is due to a change in the applicant’s circumstances since the application date:
c: revise any decision regarding an application by substituting a new decision, if the Director-General considers the decision was made in error.
2: For a revision under subsection (1)﻿(b), the Director-General must set the new rate of earnings compensation using, where the application date is referred to in Schedule 2
a: that is more recent than the application date; and
b: that the Director-General considers is appropriate.
3: Before revoking or revising a decision, the Director-General must notify the applicant in writing of the proposed revocation or revision.
4: A revocation or a revision is a fresh decision. Section 18(1)﻿(a)﻿(i) amended 17 November 2019 section 8 Organ Donors and Related Matters Act 2019
19: Applicants must provide information requested by Director-General
1: An applicant must provide the Director-General with any information that the Director-General requests in writing for the purpose of assisting him or her to—
a: decide the application; or
b: decide whether to revoke or revise a decision under section 18
2: If the applicant does not provide the information within a reasonable time notified in writing by the Director-General, the Director-General may—
a: decline the application, if the information was requested under subsection (1)﻿(a); or
b: revoke or revise the decision on the basis of the information available to the Director-General, if the information was requested under subsection (1)﻿(b) and the Director-General considers that he or she has sufficient information to revoke or revise the decision.
20: Notice of decisions
1: The Director-General must give an applicant written notice of—
a: a decision on an application; and
b: the reasons for the decision if it is a decision to—
i: decline an application; or
ii: revoke or revise a decision.
2: If the Director-General approves an application, he or she must also give the applicant written notice of—
a: each decision relating to the setting of the donor’s rate of earnings compensation; and
b: as applicable,—
i: the end date of the payment period determined under section 10
ii: the payment period determined under section 12 Dispute resolution
21: Who may apply for review
An applicant under section 16
a: any decision made by the Director-General in relation to the application, including decisions relating to—
i: how the rate of earnings compensation is set; or
ii: the payment period; or
b: any delay in processing the application that the applicant believes is an unreasonable delay.
22: Contents of applications for review
An application for review must—
a: be written; and
b: identify each decision or delay in respect of which it is made; and
c: state the grounds on which it is made; and
d: state the relief sought (if known by the applicant).
23: Applicants have 30 days to apply for review against decision
1: An application for review under section 21(a)
2: However, the Director-General must accept an application made after the deadline if the Director-General failed to notify the applicant of the deadline.
24: Review process and right of appeal
An application for review must be resolved in accordance with Schedule 3
25: Effect of review or appeal on decisions
A decision that is the subject of an application for review or to another proceeding continues to be of full effect until—
a: the review or proceeding is resolved and all rights of appeal are exhausted; or
b: the applicant and the Director-General agree to vary the decision for the benefit of the applicant. Miscellaneous
26: Deemed receipt of notices
1: A person is to be treated as having received a notice sent by the Director-General—
a: on the date of transmission, if it is sent by email; or
b: at the time at which the notice would have been delivered in the ordinary course of post, if it is sent by post.
2: However, subsection (1) applies only if the notice is sent to the address for the person last known by the Director-General.
27: Recovery of overpayments
1: A sum paid under this Act is a debt due to the Director-General if the sum was—
a: paid to a person in excess of the amount to which the person is entitled under this Act; or
b: paid to a person who has no entitlement to the sum under this Act.
2: The Director-General may—
a: recover the debt by way of proceedings; or
b: deduct all or part of the debt from any amount payable to the person under this Act.
3: However, the Director-General may not recover the debt if the sum was paid as a result of an error not intentionally contributed to by the person, and the person—
a: received the payment in good faith; and
b: has altered his or her position in reliance on the validity of the payment in a way that would make it inequitable to require repayment.
28: ACC claims not affected
Except as provided by the Accident Compensation Act 2001
29: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister of Health, make regulations declaring a type of human organ to be a qualifying organ for the purposes of this Act.
2: Before making a recommendation under subsection (1)
a: must have regard to—
i: the efficacy and safety of the procedures related to the collection and implantation of the organ; and
ii: the anticipated benefit to recipients of the organ; and
iii: the anticipated cost of providing earnings compensation to qualifying donors who donate the organ; and
b: may have regard to any other matter that the Minister considers relevant.
3: The Governor-General may, by Order in Council made on the recommendation of the Minister of Health,—
a: approve an overseas organ exchange programme by including it in Schedule 5
b: specify in Schedule 5
c: remove an approved overseas organ exchange programme from Schedule 5
d: amend or remove any conditions specified in Schedule 5
e: make minor amendments to Schedule 5
4: Before recommending that an overseas organ exchange programme be approved under subsection (3)﻿(a), the Minister must be satisfied, for each overseas country participating in the programme, that—
a: the programme has been agreed between a central government agency of the overseas country and the New Zealand Ministry of Health; and
b: the overseas country has ratified—
i: the United Nations Convention against Transnational Organized Crime; and
ii: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
5: Before recommending an amendment under subsection (3)﻿(a), (b), or (c), the Minister must consult any person or organisation that the Minister considers has an interest in, or will be representative of the interests of people likely to be substantially affected by, the proposed amendment.
6: The following are secondary legislation ( see Part 3
a: regulations under subsection (1); and
b: an order under subsection (3). The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 29(2) amended 17 November 2019 section 9(1) Organ Donors and Related Matters Act 2019 Section 29(3) inserted 17 November 2019 section 9(2) Organ Donors and Related Matters Act 2019 Section 29(4) inserted 17 November 2019 section 9(2) Organ Donors and Related Matters Act 2019 Section 29(5) inserted 17 November 2019 section 9(2) Organ Donors and Related Matters Act 2019 Section 29(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Amendments
30: Amendments to other Acts
Amend the enactments specified in Schedule 4 2017-12-05 Accident Compensation Act 2001 Income Tax Act 2007 KiwiSaver Act 2006 May be brought into force earlier by OIC. See s 2.