Hon JUDITH COLLINS (Minister of Justice)
: I move,
That the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill be now read a second time. I want to thank the Justice and Electoral Committee for its consideration of the bill in the short amount of time available. The committee received five submissions on the bill and has recommended that it proceed without amendment. I am not surprised by this as the bill is very straightforward and merely maintains the status quo under the Prisoners’ and Victims’ Claims Act 2005 for a further 1 year.
That Act provides for awards of financial compensation to be made to prisoners only in extraordinary circumstances where no other remedy is deemed appropriate. Prisoners are also required to make use of the existing complaint mechanisms that are available to them before they seek compensation through the courts. If financial compensation must be awarded, the Act requires that deductions are first made to pay any legal aid debt in relation to the claim, any outstanding reparation, and any earlier orders in favour of victims. The Act then allows victims of the prisoner to claim against the money through a simplified victims’ claims process.
Since the Act came into force in 2005, 25 payments of compensation to prisoners have been subject to the victims’ claims process and finalised. Of the 25 finalised awards, five have resulted in successful victims’ claims, totalling $47,000. Outstanding reparations owed to victims were also paid from 11 of the awards, totalling a further $43,000 for victims. The Act contains two sunset clauses that are due to take effect on 1 July 2012. The sunset clauses are, effectively, expiry dates for the Act. This bill extends the application of the Act for 1 year. It amends the sunset clauses, so that it will now come into effect on 1 July 2013. Without the bill, from next month claims for compensation filed by prisoners would not be subject to the Act’s restrictions and any compensation awarded would not be subject to the deductions or simplified victims’ claims process.
The bill will bridge the gap between the expiry of the current Prisoners’ and Victims’ Claims Act and progressing the Government’s policy to redirect prisoners compensation to support victims of crime, rather than pay it to the prisoners. The Government has already introduced a bill to give effect to the redirection policy and to make the regime permanent. The Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill is currently before Parliament. However, there is insufficient time for that legislation to be passed before the imminent expiry of the current regime on 30 June. I believe it is important for that bill to be fully considered by a select committee before it is passed and for interested members of the public to be given the opportunity to have their say and be engaged. I also intend to engage with Opposition parties to seek their input into the final form of that bill.
In the meantime, passing the current bill now ensures that the Act does not expire before the redirection bill can be progressed and ensures that claims by prisoners will continue to be subject to the current regime’s restrictions, deductions, and victims’ claims process. The bill before us and the redirection policy to be implemented later will not prevent prisoners from seeking to uphold their rights through the courts. Agencies responsible for wrongdoing will still be held to account and will pay compensation when required. Prisoner mistreatment will not, and should not, be tolerated.
This bill merely maintains the status quo until we progress the redirection bill later this year, and will ensure that the victims of prisoners who are awarded compensation
will continue to have priority to claim against that compensation before it is paid to the prisoner. I commend this bill to the House.
CHARLES CHAUVEL (Labour)
: As we have just heard from the Minister of Justice, this bill, the Prisoners’ and Victims’ Claims (20120 Expiration and Application Dates) Amendment Bill, would extend for 1 year only from 1 July the application of the Prisoners’ and Victims’ Claims Act 2005. The thought is, as I understand it, that the temporary legislation that we are considering now is needed because the substantive Act expires according to an inbuilt sunset clause that takes effect in 10 days’ time. I think it is important to understand the context here and, in particular, to revisit the history of the enactment of the substantive legislation so that we are fully cognisant of what we are doing in respect of this transitional legislation.
Between 1998 and 2004 the Department of Corrections operated a punitive regime that was known as the behaviour modification regime and was later known as the behaviour management regime—or, for short, BMR. That regime was heavily criticised in a High Court case,
Taunoav Attorney-General, where Mr Taunoa complained about the operation of the behaviour management regime and gained a significant award of damages against the Crown because of the fact that the behaviour management regime was operated in such a way as to constitute an assault and a deprivation of the inmate’s human rights. As a result, significant damages were awarded in that case to the inmate.
There were concerns at the time, given the high level of the award, that there would be substantial damages flowing against the Crown to inmates and that the victims of the offending of those inmates—in order to try to get some sort of compensation for the wrong that they had suffered—would have to go through an expensive court process in order to make themselves whole, yet the inmates concerned, against whom sentences had been entered because of the suffering that these victims had been through, would effectively end up with windfall payments that would not be able to easily be touched by their victims. So that is the context of the substantive legislation. That is why the Minister of Justice at the time, the Hon Phil Goff, responded to those concerns by proposing the substantive Act. The intention, as can be seen from its wording, was that it would always be temporary and that there would be a sunset clause built into the legislation. It would apply until only 1 July this year.
The present Government—and the Minister was almost good enough to concede this—has not managed its Order Paper well. So, as a result of that mismanagement, and I do not know whether it is her responsibility or the responsibility of her predecessor, Mr Power, but for whatever reason the replacement legislation has not come to the House in time to be re-enacted to avoid the operation of the sunset clause. There is replacement legislation on the Order Paper, but I think the Government realised that it would not be able to get that legislation through all its stages, including the select committee hearing that would no doubt be appropriate, to renew the legislation in time to be able to get it through before the sunset clause was triggered. That is the only reason that we have the temporary bill now before the House.
I think it is important to say that there are some real concerns about the substantive legislation that is proposed to effectively make the Prisoners’ and Victims’ Claims Act permanent. This was pointed out to us by a number of submitters in the Justice and Electoral Committee. We heard from the Minister that of the five submitters, I think only one was vaguely supportive and every other submitter was against this legislation, and they were against it because of the provisions of the proposed replacement. There are at least two reasons why the replacement legislation is bad law on its face.
First of all, the
Taunoa decision, which I mentioned earlier, has been to the Supreme Court. The Supreme Court radically scaled back the award of damages that had been given in the High Court. So all that fear about inmates getting enormous amounts of
damages from the Crown was really groundless, because the Supreme Court, our highest legal authority, has said that, actually, the quantum that inmates can expect to receive from the Crown is quite low. I note that the Minister recited some figures about damages that have actually been recovered under the regime. I think in respect of the 25 claims processed to date, the actual level of monetary compensation that has been paid to victims is very low—I think she said it was $43,000. That is proof, I think, of the concern here. It is a special regime set in place because of concerns that are no longer live, resulting in actually quite low payments to victims of crime.
The second problem with the substantive regime is that the legislation, as I have said, was always intended to be temporary. It was always intended to address the fact that the Department of Corrections had wrongly put in place the behaviour management regime. The behaviour management regime was done away with and the Department of Corrections—as I know a number of members who have visited prisons or taken an interest in the issue will know—has taken a number of important steps to try to professionalise the operation of the prisons and to ensure that the sorts of practices that we saw put in place in the 1990s with the behaviour management regime cannot happen again on a systemic basis. So the original case has been overridden substantially; the behaviour modification regime is no longer in place. The question therefore arises why we need ongoing legislation.
There is another issue that relates to the point that I made earlier about the figures that the Minister saw fit to release in her speech. My colleague Lianne Dalziel at the select committee when we considered this legislation was very concerned about the scant nature of the regulatory impact statement that justified both this temporary law and the substantive replacement law. She wanted to know what the justification in monetary terms was for re-enacting the regime, and the Minister’s officials told us very clearly at select committee: “No, that information is not available. The Minister does not want you to have it. It is sensitive.”
Well, unfortunately, we do not have a terribly good example of joined-up Government at the moment, because all those figures were released by the Department of Corrections yesterday in the estimates process and they do make very interesting reading. There are currently only 19 claims against the department awaiting adjudication in respect of the prison service—although one is a class action—and three against the probation service. As far as officials can tell, there might be another 20 cases out there, but that is simply an attempt to quantify contingent liabilities.
So a real question has to arise as to whether a problem that has given rise to only 20 actual and 20 potential cases since 1995 merits a statutory regime. Judith Collins has given me a commitment to negotiate over the content of the replacement legislation during the year for which this Act will be extended, if the House passes this bill. Frankly, I and my colleagues need to be convinced of the ongoing need for it, or of any special legislation to apply in this area.
If there is to be special legislation, there are some major questions that have to be asked. Why should the legislation apply only to inmates? Why should it not apply to all those who are convicted of an offence—perhaps including a community-based sentence? Why could the judge not give an indication as to sentencing that would include any compensation that should be payable to victims in the event that the person subject to a sentence came into a windfall? And why should the windfall be limited to a payment from the Crown? Why should it not include a testamentary benefit, a Lotto win, or any other sort of recovery of funds that was unexpected?
I accept, and my colleagues accept, that it is proper to preserve the status quo for a year, and to allow those discussions about a replacement. For that reason and that reason only, Labour will support this temporary bill.
TIM MACINDOE (National—Hamilton West)
: The Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill is a bill of very limited application, but it is also an important one. The Prisoners’ and Victims’ Claims Act 2005 is due to expire in 9 days’ time, which is just 3 sitting days from this afternoon. As the Minister of Justice, and now Mr Chauvel, have noted, two sunset clauses in that Act are due to take effect on 1 July. I urge all members to support this bill to extend them by a further 12 months—and that is all we are talking about—to ensure that there is no gap between the expiry of the current regime and the implementation of new provisions that will come into effect when and if the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill is passed by this House. I submit that this interim measure is necessary and in the public interest.
Hon LIANNE DALZIEL (Labour—Christchurch East)
: Sorry, I was not expecting such a short call from the chair of the Justice and Electoral Committee, Tim Macindoe. The reason I am surprised that it was such a short call is because of the issue that was raised by my colleague Charles Chauvel, our spokesperson on justice, in relation to information that we understood would be made available to us in the select committee in secret. The regulatory impact statement made it so clear that it was such a difficult piece of information to have in the public area because of the implications that it could have, and then we find that the answers were given by the Minister of Corrections in another select committee in another context in terms of the financial review, and we were denied access to that information at the select committee. I would have thought that the chair would like to take an opportunity to respond to that. I am sure that when we get to the Committee stage the Minister will be asked that question, and it may be in the chairperson’s interest to make sure that the Minister is well briefed on the subject.
I just want to quote from the
Hansard of my own contribution to the first reading of the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill, because this was a matter that I raised at the select committee meeting itself. I said: “I … would like to receive an assurance from the Government that that information will be made available in secret to members of the committee, because I think it would be useful for us to understand the context in which we are debating this. I note that the Minister of Justice is nodding her head. I think it is a matter she would be prepared to take on board and consider. And the reason that I raise this is due to the statement in the regulatory impact analysis about the issue around potential behaviour management regime claimants.” It actually had not occurred to me when we were dealing with the first reading of this bill that there were behaviour management regime claimants who had not actually lodged their claims at that point and were sitting back waiting for the sunset clause, basically, to take effect and to see what happened afterwards—to basically chance their arm.
I just thought that it was fascinating that Charles Chauvel managed to get the information that we were denied at the select committee in written questions to the Minister of Corrections in relation to her appearance at the Law and Order Committee, which, of course, is not the committee that was dealing with this particular bill. I think we have to be a little bit cautious about decisions that are being made without the relevant information being taken into account.
When we look at the regulatory impact analysis, and I dealt with this in the first reading of the bill, it actually was prepared only at very short notice. I think the date of it was 28 March 2012. Given that the knowledge around the implementation of the sunset provision was well known ahead of that time, it seems extraordinary to me that the regulatory impact statement was left so late. It actually smacks of having been forgotten—overlooked that there was a requirement to do this level of analysis before
introducing even this bill—and I know, having listened to both the Minister and the chair at the select committee, that they think it is just so straightforward there is no reason to debate any of these matters. But, actually, if we are to do our jobs as parliamentarians, I think we have to take notice of these kinds of sequencing issues.
When we look at this particular one, we see that it says this: “The Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill was introduced in Parliament on 13 October 2011 to give effect to the redirection policy, but did not receive a first reading.” Well, that it did not receive a first reading does not really explain to us why it did not receive its first reading. Then it goes on to say—and this is the non sequitur, I would call it, of this particular regulatory impact analysis—that “There is now insufficient time to progress it through its Parliamentary stages before the sunset clauses take effect on 1 July 2012.” Well, you know, of course that is the case, but do we not need a little bit of a better explanation as to why the bill took so long to introduce? The knowledge around the general election actually occurring in the interim period—
Charles Chauvel: He was too busy with Westpac.
Hon LIANNE DALZIEL: I know that he was busy with his interview with Westpac, as the member says, but that is not the point.
It is a serious matter, because what has happened is this. I just think I should put this on the record of the House again, because obviously it has not attracted much attention on that side of the House. The regulatory impact statement goes on to say: “This RIS was prepared within a very short timeframe and accordingly no consultation was undertaken. However, the Ministry informed the Department of Corrections, the Crown Law Office, the Ministry of Foreign Affairs, the Treasury, and the Department of the Prime Minister and Cabinet. The public is likely to have an opportunity to comment when a new Bill is referred to select committee after introduction.” Well, actually, the new bill had been introduced, so the whole concept of a proper discussion with the public and proper consultation prior to the introduction of this legislation has just simply gone out the window. The Government does not seem to think that that is important.
Let me go to the actual provisions in the regulatory impact analysis, where it talks about the need to keep certain information secret. So here it goes: “Exact numbers of existing and potential claims by prisoners for compensation are not stated in this RIS because that information”—so it is not the amounts; it is the numbers—“is legally sensitive. The numbers were available and were taken into account when the impacts of each option were assessed.” They did say that they did notify the Department of Corrections and the Crown Law Office, so it is surprising that the Department of Corrections had no trouble supplying this information to the members of the select committee.
So here is this information. This document asks how many individual claims for compensation by inmates are expected to be paid out or settled in the coming year, specified by the amount sought and reason for the claim, and how this compares with previous years. It says that settlements are comparable with previous years, that there are 19 cases involving compensation claims filed by prisoners or former prisoners, and that one of these is the class claim by 71 prisoners or former prisoners. So that one is already on the record. Another 20 similar cases have been identified.
So this bill is about 20 cases. That is what this bill is about—20 cases. The document continues: “The department is likely to seek to settle four cases with compensation payments. A settlement offer has already been made in one other case. Another three claims involving offenders being managed in the community will also be considered for settlement by way of a compensation payment. If settlement occurs, any compensation
is paid to the Ministry of Justice in accordance with the Prisoners’ And Victims’ Claims Act 2005, which has to be extended.” It has to be extended or replaced because of the situation that we are in now with the sunset clause taking effect on 1 July this year.
So I actually think that the Government has done a disservice to this House in terms of its response to these issues in the first reading, although the Minister did indicate by nodding her head—she was not nodding off; she is not one of those Ministers who do that from time to time. She was actually nodding her head, and she was indicating that that information would be made available. I actually went to the point that I had accepted what the regulatory impact statement had said at face value and that it could be provided in secret. But, no, we were not given that information. I raised it at the select committee, and members of the Ministry of Justice were not aware of the issue, and they were going back to check. We never got that information provided to us, but now we find it has been provided to the Law and Order Committee. I actually think it is not a good process, but we are supporting the passage of the bill for the reasons that my colleague enunciated.
DAVID CLENDON (Green)
: I am pleased to take a call on the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill, and pick up from the final comments of the previous speaker. I would like to begin by talking about the process. It has been pointed out that we have a 9-day deadline before us. That is an extraordinary thing when one considers that we are talking about an amendment to substantive legislation that was enacted in 2005, some 7 years ago. This Government has had complete control of the legislative programme, of the House programme, for 3½ years, and we hear today from the Leader of the House that next week the House will be in extended hours, and will potentially sit under urgency. One of the bills that we must use these longer hours for is this bill, the Prisoners’ and Victims’ Claims (2012 Expiry and Application Date) Amendment Bill. It is an extraordinary failure of political management and of legislative management after 7-odd years to have to rely on extended hours or, potentially, urgency to deal with a deadline that was flagged so long ago. It is a remarkable failure.
Tim Macindoe: The member’s confused.
DAVID CLENDON: Well, I am told I am a confused member. In fact, I invite the member to do the sums—12 minus 5 does equal 7, and always has. The fact is that we are running up against a deadline, and it is a failure of legislative and of political management. That is undeniable.
Further, the process has been truncated. This bill was introduced a couple of months ago at the beginning of a parliamentary adjournment. Very few members of civil society, few of the interested NGOs, and few of the organisations who would take an interest in this sort of bill had any idea that it was coming forward. The Government used its numbers to force a truncated select committee process. Barely 6 weeks were allowed for the select committee process, and it is only through a change in the Standing Orders that we had any opportunity to even debate that. I am pleased that the Labour Party and the Mana Party supported the Greens in opposing that motion to have such an extraordinarily short select committee process. It is a very undemocratic and a very sloppy way to progress legislation. The Government should be ashamed of that failure to manage this better.
The principal Act, the Prisoners’ and Victims’ Claims Act 2005, which we are changing, was very well described by Mr Chauvel who, in his first reading speech, described it as an experimental piece of legislation. As he did explain that earlier, I will not repeat that in any detail. That legislation did come from the behaviour management regime and the systematic abuse and torture of inmates in one of our largest prisons. The climate of the day saw significant objection to, and some disquiet about, prisoners’
receiving monetary compensation, despite their having proven a case of abuse and torture. This legislation that we are amending was the result of that. The reality is that at the time the principal Act was supported by the Greens, and I suspect in part by other parties, because it was clearly flagged there would be a substantive review, and for that reason there was a deadline, a sunset clause, in the legislation. One of the things promised at the time was an independent prison inspectorate, which in fact we never did get. It is true that the Office of the Ombudsmen does have dedicated officers who do a very good job of monitoring prisons and dealing with prisoner complaints. That is an issue that we can return to. The reality is there has been ample time to review the situation.
The continuance of this legislation—and it has been clearly flagged by the Government that it is its intention to embed this legislation—indicates that the Government is expecting that there will be ongoing examples of abuse of prisoners in our prisons while they are in custody, and that we need to ensure that they cannot receive any sort of monetary compensation in the event of such abuse occurring. That is an extraordinary assumption to make, given that the Department of Corrections has changed. We have seen reform of the corrections system. There is a great deal yet to do, it must be said, but I do not think that the situation that arose in the early 2000s would be tolerated today or would be possible. If there is abuse of inmates, then those responsible should be taken to task, and we would argue that inmates should continue to be eligible for some compensation for that.
We were told by the Minister of Justice in her first reading speech that the need for this temporary legislation was pressing, because otherwise “There would be a clear incentive for potential claimants to file their claims during this window [of opportunity]”, which, she said, would “defeat the purpose of the current regime”. She went on to say: “The new bill will prevent the unfair window of opportunity from occurring that would disadvantage victims of crime.” That is an extraordinarily narrow interpretation of the notion of fairness. What about fairness for the people who were indeed originally denied their human rights, who were abused in custody, and who were deemed to have suffered torture? What about their rights? They too were victims of crime, and their right to be compensated was taken away from them. The continuance of this experimental legislation—well described—embedding the regime of zero compensation, because that is what it will do, is an admission that this Government does expect further abuse and misbehaviour within the corrections system, and I think that the Minister of Corrections should be quite concerned about that.
The point has been very well made by the previous speaker that the regulatory impact statement was clearly done in considerable haste, and indeed the submission from the New Zealand Law Society highlighted that there are probably fairly substantial errors of fact in it. I mean no disrespect to the officials involved. It is simply that they were not given adequate time to do a good job, which is what we normally expect and see from them. The Law Society has also pointed out that the original legislation was never subject to a New Zealand Bill of Rights Act, section 7 report, and nor has this continuance legislation been subject to that. It is simply an extension of a regime that was always intended to expire. It should be allowed to expire. It has served whatever useful purpose it may have had. There is clearly a contingent liability on the Government of the day if new claims were to emerge from the period of the early 2000s. That is a reality, and the Government should, basically, front up and wear that cost rather than continue with what is a very unfortunate piece of legislation. This bill perpetuates two very perverse incentives. It could, in a very perverse way, actively encourage or almost give licence for the abuse of inmates, given that it is most unlikely that those inmates would see particular value in making claims against the State for any
abuse that they suffered in prison. The second is that it seems perverse that anybody should benefit from the abuse, torture, or mistreatment of prisoners while they are inmates of the State.
Our international obligations have always been compromised by this legislation. It is true that Article 8 of the Universal Declaration of Human Rights guarantees “the right to an effective remedy”, and article 2 of the International Covenant on Civil and Political Rights does something similar. It demands that people whose human rights have been compromised ought to be entitled to an effective remedy from the State, which is responsible for that. It cannot be accepted at any level that absolute denial of any compensation or possibility of any monetary compensation coming to a person whose human rights were compromised could be seen as meeting the international obligations that New Zealand has accepted as signatory to those international agreements, documents, and conventions.
When first passed this was a very marginal piece of legislation. The Greens supported it originally only on the understanding that there would be a rigorous and timely review, and the installation of an independent prison inspectorate. None of those has occurred. This is very poor process for a very poor piece of legislation that we will continue to oppose.
Dr CAM CALDER (National)
: On this on side of the House we make no apologies for focusing the justice system on the rights of victims. The Prisoners’ and Victims’ Claims (2012 Expiration and Application Dates) Amendment Bill has a simple purpose. It bridges the gap between the expiry of the current regime, as we have heard, on 30 June 2012, and the progressing of the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill. There are two major effects on the awarding of compensation. The bill defers the expiry of the provisions relating to restrictions on the awarding of compensation until 1 July 2013, and it also affects the victims’ claims process. The bill extends the application of the provisions of the 2005 Act to 1 July 2013. The Government intends to progress the aforementioned Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill so that it is enacted before 30 June 2013. I commend this bill to the House.
DENIS O’ROURKE (NZ First)
: This bill, the Prisoners’ and Victims’ Claims (2012 Expiration and Application Dates) Amendment Bill, is a sunset extension bill. Today being 21 June, the shortest day of the year, it is a shame that it cannot also extend sunset today. That would be very welcome, with the weather we have had. But the bill simply extends the regime for a further year while new legislation is developed. I want to emphasise the term “new legislation”, because what New Zealand First does not expect is that the current regime will simply carry on after the delay for another year. What we expect is a rigorous examination of the current regime under the current legislation to see whether it does work, whether it is, in fact, necessary, and whether it achieves its stated objectives. We do not know yet whether that is the case or not.
For the time being, New Zealand First will accept the bill as it is, to extend the date for a further year, and will support the bill. But it is better to get the legislation right, take that time, do that exercise, and develop legislation that is worthwhile. I am not saying, necessarily, that the current legislation is a failure. I do not yet know that to be the case. But I do know that the principles we consider in the new bill include these. First of all, being a prisoner means being penalised only by the temporary removal of personal liberty and incarceration. It does not mean anything more than that. Prisoners should still do daily work, and they should live in a highly disciplined routine, but they should also have the opportunity for rehabilitation, education, and reorientation in their direction of life. Secondly, it does not result in the loss of other rights. It does not result, for example, in the loss of rights to obtain rehabilitation, education, and reorientation. It
should not involve the loss of the right to vote. It does not mean the loss of the right to protection from personal or mental abuse, and it does not mean the loss of rights to services like decent medical care. It does not mean the loss of right to fair treatment. It does not mean the loss of right to adequate accommodation and meals. It does not mean the loss of right to accident compensation for genuine injury or disability from genuine accidents, and it does not mean the loss of right to compensation for substantial and genuine mistreatment. It does not mean the loss of the right to practise religion and many, many other such rights that we all enjoy. It means, as I have said, just the loss of liberty for the period of the sentence.
On the other hand, the rights protected in this way must be balanced against the fact that there is concern in the community that prisoners abuse some of those rights, especially the right to compensation for mistreatment, and especially accident compensation. Those are genuinely held beliefs, and we must give some attention to them, but we certainly should not mollycoddle prisoners, and we should make sure that there are no rorts of the like that we have seen in recent times by some prisoners.
The final bill, when it eventually comes through for the substantial legislation, must still preserve those properly held rights, especially those I have already mentioned. But it must also ensure that there is no abuse of those rights by prisoners. I think that does mean that there need to be some special rules in order to avoid inappropriate claims for compensation for mistreatment or for accident compensation. New Zealand First does adopt that position, and is prepared, therefore, to consult with the Minister of Justice on those issues. I certainly welcome the undertaking given by the Minister to consult other parties on those matters, because these are very difficult issues to sort out. We must be fair, on the one hand—and I agree with the Green Party spokesman on this—that, in fact, prisoners can also be victims, and on the other hand we must balance that with some sensible rules to make sure that the abuse of rights by prisoners is not possible, because that is what the community expects of us.
New Zealand First will want to make sure that the substantive legislation, when it comes through, is appropriate in restricting claims by prisoners, because there is a case for that. On the other hand, prisoners can also be victims, and their rights must also be protected. As I have said already, there is a balance to be held there. I think that it should be possible to get a consensus of all parties in the House if we look at it in that way—achieving an appropriate balance that protects rights on the one hand, and on the other hand meets community expectations that prisoners will not be able to abuse those rights, especially those giving rights to compensation, whether it be for alleged mistreatment or whether it be for accident compensation.
I think that is where the debate should be centred, and that is the way New Zealand First will be looking at it. New Zealand First will welcome the consultation process that has been promised, and welcome, in the end, the debate on genuine new legislation, when it comes through, based upon the facts when they are presented to us, so that we know whether, in fact, this legislation is needed, and what, in fact, is needed to rectify anything that is not happening as it should in the current situation. But, for the time being, New Zealand First will support the bill, because it is simply a sunset extension bill, and we look forward to the policy development work to be had in the coming year.
Dr JACKIE BLUE (National)
: I am pleased to take a very short call on the second reading of the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill. It is a very straightforward bill. It bridges the gap between the current regime that expires at the end of this month, while waiting for the passage of the 2011 bill. This Government is serious about putting victims at the heart of the justice system, and focusing on the rights of victims. I support this bill and commend it to the House.
KRIS FAAFOI (Labour—Mana)
: Thank you very much for the opportunity to speak to the Prisoners’ and Victims’ (2012 Expiry and Application Dates) Amendment Bill. The substantive legislation will expire in 9 days’ time, and that is why we are here, extending for 1 more year the sunset clause that is in the Prisoners’ and Victims’ Claims Act 2005.
It is interesting to see that the members on the opposite side of the House this afternoon are taking very short calls, because earlier, in the first reading of this bill, the member for Hamilton West, someone who I have a lot of personal respect for—
Hon Trevor Mallard: What?
KRIS FAAFOI: —well, a fair degree of personal respect—
Tim Macindoe: Stick with the original line, Kris.
KRIS FAAFOI: —ha, ha—was beaming about this bill. He actually said it was part of the Government’s “arsenal of initiatives”. An “arsenal of initiatives”, Tim Macindoe said this bill was, but today, the praise around this bill is a tad shorter.
We will be supporting this legislation, because, as I said, it is a pure extension of the bill that Mr Goff introduced, back in 2005. When we introduced and passed that bill in this House there was a perceived need, following the court ruling that Charles Chauvel mentioned earlier on, and a concern around compensation being given to prisoners, and then the lack of that compensation being passed on to their victims.
At the time of its introduction the Hon Phil Goff, who is sitting to the right of me, said—[Interruption] Oh, sorry; to the right of me! At the time of the substantive legislation being passed, Mr Goff said that most people believe it is wrong that offenders should be compensated for wrongful treatment and, in turn, are not required to pay restitution to the victims they have harmed. That statement was made in the context at the time, given the court case that I mentioned earlier and also a feeling amongst the community that there was a sense of unease around what was happening. But as Mr Chauvel also pointed out earlier, and also in his first reading speech, it was a response to a perceived need at the time.
For those who might be watching or listening at home on their crystal sets, I say for the benefit of those people, this bill essentially extends the sunset clause—
Hon Trevor Mallard: The member’s a pale imitation of John Banks.
KRIS FAAFOI: A pale imitation of John Banks—that is some praise. This bill essentially extends for 1 year the sunset clause of the substantive legislation, which, as I said earlier, expires on 1 July, in order for this Government to address this area of law—to address this area of law, I repeat.
The Act has two main functions. The first one is that it restricts the circumstances where the courts can award prisoners compensation for any breach of their rights while they are locked up. A court must consider other remedies before it looks at awarding monetary compensation for those inmates, and also investigate whether a prisoner has extinguished all other complaints procedures before it goes to award the monetary compensation that might be available to them. In essence, there needs to be an exceptional case before a prisoner can be awarded any monetary compensation for any abuse of their human rights.
Secondly, the Act also sets out a process where, if a prisoner were to receive any compensation in one of those rare cases for a rights breach, their victim can claim against it if they are owed any money. That is why it is called the victims’ claims process in the Act. That compensation money is paid into a trust account, after lawyers are paid, of course, and victims have 6 months in which to lay a claim against the moneys that are in that trust account. So that is the function of this legislation, and for that reason we will be supporting the bill that is before the House.
But that is not what this story is about, because the functions of this bill are 7 years old. I would just like to echo the comments of the Green Party member David Clendon as to why we actually are in this House again extending the sunset clause within this bill. It is because, although the Government has talked tough on law and order, and this bill is part of its arsenal of initiatives, or an initiative of an arsenal—well, I do not think it is an initiatives arsenal, basically—the Government has failed to address this issue, which it said it was going to tackle back in 2008. So for the second time within this Government’s term we are back here extending the sunset clause within this bill.
If you can give me the chance just to have a look at this, it is almost the same date that we are back in this House extending this sunset clause. The Government has been rushing the process this time, and 2 years ago, when we extended it previously, it was rushing the process, as well. That bill, on 22 June 2010, received its third reading. On 22 June 2010 that bill was in the Committee of the whole House, and on 22 June 2010 the predecessor to this bill received its second reading. Again, this Government has been caught out rushing through a temporary measure to extend this legislation, which was passed under the previous Labour Government, because this Government could not get its act together and come up with a decent alternative, which it had promised to the people of New Zealand.
This is a Government that said it took victims’ rights seriously, but it has twice had to extend the sunset clause within this legislation, which Mr Goff passed back in 2005. The legislation was experimental, as Charles Chauvel said, and that is why the sunset clause was built into it. But for a Government that says it is taking law and order seriously and is right behind victims, it is finding itself, for the second time—almost 2 years to the day—in a rush to try to make sure that it can get this sunset clause extended so that it does not look embarrassed, because there is no mechanism for victims to try to get any compensation from prisoners. I think that speaks volumes as to what kind of commitment this Government has to victims’ rights, when it has talked tough but has not walked the walk in this Parliament. As I have said, nearly 2 years ago we were doing exactly the same thing.
The story that this Government wants out in the paper tomorrow is that this bill passed and the Government is getting tough on crime, as part of its arsenal of initiatives. But the true story is that it has had 3½, nearly 4, years, to sort this out, and it has not done a single thing.
There is, I understand, an alternative piece of legislation on the Order Paper, but where has it progressed? Where has it progressed? This Government, again, is buying itself another year in this House today—another year to sort itself out. It cannot get itself organised enough to get legislation through this House to make sure it can walk the walk on its talk on the election campaign. Two years ago we were doing exactly the same thing.
Another part of our argument as to why this Government has not walked the walk is that there needed to be a review of this legislation to see whether it was being effective, and 3 years ago when it came into office that was one of the options that it looked at, but there was no review. There was no review, and we have also got no legislation before us. In terms of a rolling maul on its arsenal of initiatives—
Andrew Little: 120-point plan.
KRIS FAAFOI: —and its 120-point plan, as Mr Little says, to crack down on crime and its war on P, and whatever other mottos that this Government has around crime and law and order, this Government is not necessarily walking the walk when it talks the talk.
Lianne Dalziel spoke earlier about what the regulatory impact statement said. I think it speaks volumes as to just how rushed this process has been. Let me quote from it.
Where are we exactly—there is a lot to consider in this. The regulatory impact statement says: “The Prisoners’ and Victims’ Claims
(Redirecting Prisoner Compensation)
Amendment Bill was introduced … to give effect to the redirection policy, but did not receive a first reading. There is now insufficient time to progress it through its Parliamentary stages before the sunset clauses take effect on 1 July 2012.”, which is in 9 days’ time. That is the first piece of information to show you how slack this Government has been. The regulatory impact statement continues: “Due to this, the Ministry of Justice was asked to urgently consider alternative options to maintain the existing provisions of the PVC Act until the redirection policy can be given effect ... The RIS was prepared within a very short timeframe and accordingly”—
The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. His time has expired.
KATRINA SHANKS (National)
: It is my pleasure to take a brief call on this bill, the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill, tonight. This bill has already been well debated in the Chamber. The Minister of Justice, Judith Collins, and Charles Chauvel debated the points very well, I thought, and raised issues that were considered in the Justice and Electoral Committee and through that stage.
Obviously, it is a very simple bill. The Prisoners’ and Victims’ Claims Act 2005 has got two sunset clauses, which come up on 1 July, so this is a transitional bill until the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill is passed in Parliament later on in the year.
So it is my pleasure to take a brief call on this bill, and I look forward to talking about it in the next readings.
The ASSISTANT SPEAKER (Lindsay Tisch): I understand the next call is a split call. I will ring the bell at 4 minutes.
Hon PHIL GOFF (Labour—Mt Roskill)
: I am very conscious of the circumstances under which the legislation that we are looking at now, the Prisoners’ and Victims’ Claims Act, was passed in 2005. I was the Minister in charge of that bill. The circumstances at that point were basically that in 1998, under the then National Government, a behaviour modification or management regime was put in place. It was kept in that form through to 2004, when it was found that this regime was not operating as the Governments that initiated it and continued it had intended, but was, in fact, operating in breach of basic rights that New Zealand as a nation had signed up to internationally. I would hope nobody in this House would suggest that a State, when it has control over an inmate, however heinous the crime that that inmate might have committed, should not work under its own rules and the rule of law.
What worried me at the time, when a very large case was brought—a class action that might have involved considerable sums of money—was that these people who had committed particularly terrible crimes would get compensation for the abuse of their rights, but their victims, in turn, who had suffered and still carried the scars of the offending against them by this particular group of people would still be outside, with no compensation at all for the crimes that were committed against them by the offenders. That seemed to me fundamentally wrong.
As Minister of Justice, and since that time, I have always felt that the principles of restorative justice are really important, and that, to the extent possible, an offender should try to right the wrongs committed against the victim. That actually achieves justice. In our current justice system we do not often do that. We have the State against the offender, and the victim is to one side; the victim almost does not matter. To me, it seems that the victim needs to be at the heart of the process.
We were not sure that this legislation was, long term, going to be the most appropriate form of the legislation that we needed, and that is why we put the sunset clause into it. I have to comment that it is unfortunate that we are sitting here, less than 10 days before the legislation expires, in order to put in place replacement legislation to carry on the provisions for another year because the Government did not get its act together, despite having 3½ years’ notice of this.
We will support the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill because we want a new regime in place that really will work on behalf of the victims. That should be the focus of the review and it should be the focus of replacement legislation. I think what we need to do is to think more laterally than was the case in this legislation and in the proposed legislation from the Government. If any offender receives a windfall payment—they might win Lotto, they might come into a big inheritance—but at the time that they were convicted of the offence against the victim they had no money and the victim got no restitution or reparation, then subsequently, the offender is able to make good for the victim the wrong that they committed. Why do we not think about broadening legislation so that in any case where an offender has badly damaged a victim and made no compensation, reparation, or restitution, they should be required to make good the wrong that they have done to the victim?
Let us not restrict this just to the inmate who is in prison. That is taking one small category of those who have offended, and leaves the vast majority of the victims uncompensated by offenders. If we truly believe in a form of restorative justice, why do we not think more widely, and why do we not come up with a compensation scheme that allows—even some considerable time after the offence was committed—an offender now placed in a position to do so to put things right for the victim.
I am conscious that under the existing legislation there are only five cases where the victims got compensation, totalling about $45,000. That is a drop in the bucket. Let us use this period of time of 1 year to think more laterally and come up with something that truly does put the victim at the heart of the justice system.
JULIE ANNE GENTER (Green)
: Tēnā koe, Mr Speaker. My colleague David Clendon has already spoken on this bill, and I would like to add my voice to his in emphasising that the Green Party will not be supporting the thrillingly titled Prisoners’ and Victims’ (2012 Expiry and Application Dates) Amendment Bill. Although the Justice and Electoral Committee has reported the bill back without amendment by majority decision, we do not feel that either the full context or the full consequences of the bill have been appreciated. Extending two sunset clauses in the principal Act may sound innocuous—and certainly other members who have spoken in the House have emphasised that it is very simple and straightforward—but we retain our concerns for two important reasons. First of all, it is not immediately clear that extending the sunset clause is a necessary step. Notwithstanding that, the Green Party supported the principal Act at its third reading only on the basis that the legislation would expire.
As part of a plan to reduce the amount of abuse in prisons, the Law Society, in its submission, made the valid point that case law precedent in
Taunoa v Attorney-General from 2007 cast doubt on whether subpart 1 of Part 2 of the 2005 Act is now needed at all, so why the Government is taking up precious time debating this bill is somewhat beyond me. More important, we reject the assertion that because this bill merely extends the sunset clauses it has no human rights implications, because it clearly does. The Government’s own Attorney-General has released a section 7 New Zealand Bill of Rights Act report on the proposed Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill, condemning it as a denial of an effective remedy, and also including a chastisement of the previous Attorney-General for not making a similar
ruling in regards to the principal Act. So how does extending the restriction to the right of an effective remedy before making that change permanent not contradict the New Zealand Bill of Rights Act? Prolonging that denial is a denial in itself, and should be considered as such in principled lawmaking.
In response to Mr Goff’s assertion that he is interested in putting victims at the heart of our criminal justice system, the Green Party absolutely agrees with this, but, let us be honest, the principal Act that this bill extends never sought for victims to receive compensation and money. It was all about limiting the Crown’s financial liability for the human rights abuses of prisoners.
Hon Phil Goff: No. No, it wasn’t actually.
JULIE ANNE GENTER: That is what it is about. That is why it is limited to this, and clearly—
Hon Phil Goff: No. Take it from me; I was there—and the Greens supported it at the time. The Greens supported it.
JULIE ANNE GENTER: Yes, because it had a sunset clause; that is why we supported it. Lawmaking should avoid perverse incentives, and in perpetuating the status quo this bill fails in that regard. That is probably why there have been so few cases taken and so little money awarded to victims as a result of it.
Compounding the problem is the fact that where abuses happen, prisoners are less likely to make a claim, and that is exactly why there have been so few claims made or awarded. Making prisoners less likely to claim compensation reinforces the incentive to commit human rights abuses by lessening the chances of punishment against perpetrators.
These are broadly the reasons why we will not be supporting this bill and why we do not commend it to the House. We realise that it will pass. We look forward to engaging in what will be, hopefully but unlikely, a more substantive debate on the Government’s future plans in regard to the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill. Thank you.
ALFRED NGARO (National)
: I am proud to take the final call on this Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill in its second reading. It is a transitional bill. I too want to echo and support the sentiments expressed by the Hon Phil Goff that, despite the, I suppose, sense of delay and the disappointment about its process, what is absolutely important is that the focus of this bill is around the awarding of compensation and the victims’ claims process. I sense, too, that the comments around the lack of consultation and on the regulatory impact statement make it quite clear that the public is likely to have an opportunity to comment when a new bill is referred to the select committee after its introduction.
This bill is in line with the Government’s focus on the justice system and the rights of victims. It is disappointing, if not unsurprising, that the Greens are not supporting this. All we have ever heard from them is about the rights of the prisoners, not the rights of the victims, and that is very clear. We are directing the prisoner compensation to victims at the heart of our justice system. Extending the
sunset clauses in the Prisoners’ and Victims’ Claims Act means that the Government’s objective of maintaining the redirection policy is progressed. It is therefore the preferred option. Thank you.
A party vote was called for on the question,
That the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill be now read a second time.
||New Zealand National 59; New Zealand Labour 34; New Zealand First 8; ACT New Zealand 1; United Future 1.
||Green Party 13; Māori Party 2; Mana 1.
|Bill read a second time.