The Government found $12 billion just ahead of this year’s Budget by making changes to the law governing equal pay claims. David Fisher offers an analysis of another pot of gold that could prove useful in an upcoming election year.
ANALYSIS: There is an election year treasure chest of $3.2b that could tempt the Government.
If they crack open that chest, it will come with a cheaper political cost than the $12b Equal Pay Amendment Act decision made prior to this year’s Budget.
It affects far fewer people.
But it is a very specific pool of cash - a treasure chest created as the legacy of lifelong soldier and public servant Sir Wira Gardiner before his death.
It was, he said before he died, a koha left for other military veterans.
And it’s a pool of cash that also shows the incredible power that can sometimes be found in the small cogs in the Government machine.
Gardiner was killed by a brain tumour, as were a number of his generation who fought in the jungles of Vietnam.
Those jungles served as effective hiding places for their adversary. The Americans used a compound known as Agent Orange to kill the foliage and remove that cover.
Agent Orange sprayed on the jungle also covered those moving through that jungle, like Gardiner.
There has for some time been a link between Agent Orange and brain tumours of the sort that killed Gardiner.
It’s a link accepted in some jurisdictions but not - until recently - in New Zealand. It’s an odd quirk, given components for Agent Orange were manufactured in a factory in Taranaki.
As Gardiner lay dying, his old friend and comrade at arms Ross Himona came to visit. The two spoke and Himona - long a campaigner for veterans rights - urged him to lay a claim with Veterans’ Affairs that the condition was service-related.
As Himona explained to his old friend, the outcome was likely to be the test case he had been searching for. It would test the current law and how it is applied.
Himona could see Gardiner’s claim eventually winding up in court, succeeding and smashing away barriers that were stopping the claims of other veterans.
So Gardiner did make that claim. He knew when he did that he would not live to see its outcome. It was, Himona later said and Gardiner’s widow Hekia Parata endorsed, a claim that was a koha to other veterans.
It was a koha that the Government now estimates will cost $3.2b in additional taxpayer money.
Himona’s uncanny foresight came to pass when Gardiner’s claim was rejected by Veterans’ Affairs, reviewed and rejected again then upheld by the Veterans’ Entitlements Appeal Board.
The Appeal Board is not a busy body. Not many appeals get made. It can’t make new regulation or rules. It’s job is to interpret what is already there.
And so its three members did for the Gardiner decision.
The decision did not sit well with Veterans’ Affairs and, through its parent body NZ Defence Force, it went to the High Court to get the decision reviewed. In 2023, the High Court clarified the law and sent it back to the Appeal Board for a second go.
In October 2024, the Appeal Board found Gardiner’s brain tumour was likely service-related. It found the evidence provided to support Gardiner’s claim created a “reasonable hypothesis” that it was “more than a possibility” that the tumour was caused by Agent Orange - it was “consistent with the known facts” and “not inconsistent with proved or known scientific facts”.
That finding is what created the $3.2b treasure chest because the decision shouldered open a wider doorway through which veterans must pass to successfully claim for service-related conditions.
Now, the new decision set out rules that were much more flexible.
This is what critics of the system had long argued should have been the case all along. They would have it that Veterans’ Affairs had, for the decade since the new law came in, been too restrictive and rejected many claims that should have been accepted.
That was November 2024. Then in March 2025, NZDF appealed again. It has gone to the High Court, arguing the Appeal Board wrongly interpreted the previous High Court decision.
Briefings to Defence Minister Judith Collins and Veterans’ Affairs Minister Chris Penk show NZDF has independent costings that the decision would more than double the cost to taxpayers in meeting the country’s obligation to those who served - up from $2.9b to $6.1b n lifetime costs.
That’s a leap of $3.2b of potential liability wasn’t accounted for in Government accounts.
The advice to the ministers said this: “The decision of the VEAB, which is now in force, impacts how veterans’ support entitlements claims are assessed, making it difficult, if not impossible, to disprove a hypothesis supporting a veteran’s claim.”
It also says the outcome of its appeal is “uncertain”. The High Court judge who heard the case has yet to deliver a finding.
This line, and the size of the potential bill, has caused concern in some parts of the veterans’ community, particularly after the carpet was abruptly pulled from under the fair pay settlement process with the result of a $12b windfall.
If the High Court decision finds the Appeal Board did follow the law and upholds its decision, veterans will get the support they have long-believed they should receive. It will fulfil that unexpected lurch in costs - unless the Government decides to change the law.
Penk won’t talk about this before there’s a ruling. He might not have to - if the High Court rules in favour of NZDF then that money will also be available anyway.
But if the court upholds the Appeal Board decision, and Gardiner’s claim, then that koha might look very attractive in tough economic times. Tax cuts brought in by this Government cost around that much each year.
The military veterans’ lobby is one that - outside of Anzac Day - struggles to be heard. Should Gardiner’s final “koha” to veterans be hijacked, it would have to strive for a level of volume it has never before achieved to outweigh the appeal of an election year cash boost.
Royal NZ RSA chairman, retired Lieutenant General Rhys Jones, said the latest Appeal Board finding in the Gardiner case showed the proper support that veterans’ were due.
“We would strongly oppose any changes to the Act that resulted in less support being available to veterans.”
He said the statement about it being almost “impossible” to disprove a hypothesis supporting a veteran’s claim was concerning.
“Any hypothesis must always be supported by evidence that a veteran had been exposed to something that is linked to the medical condition being claimed for.”
Sceptics view NZDF framing the decision as an almost-free pass as setting the scene for a law change. Gardiner’s life was one of service. The question to answer here is who is serving veterans?
David Fisher is based in Northland and has worked as a journalist for more than 30 years, winning multiple journalism awards including being twice named Reporter of the Year and being selected as one of a small number of Wolfson Press Fellows to Wolfson College, Cambridge. He joined the Herald in 2004.
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