Prisoners’ and Victims’ Claims Bill

I was interested to see that the Minister, the Hon Rick Barker, was quite diligent in getting to his feet. I invite him to take another call to explain why he is wasting Parliament’s time in forcing through this legislation under urgency, while at the same time the Crown lawyer, Terence Arnold QC, is arguing in the court that a court declaration and not compensation is the proper response if a breach is held to have occurred. So I invite the Minister to take a call. How does he expect the court to rule in favour of the Crown when it realises that Parliament is taking urgency to award and confirm rights through this legislation, which is probably more appropriately, as my colleague Dr Wayne Mapp says, the “Prisoners’ Compensation Bill”?

I found it outrageous just now when the Minister who was on his feet actually made it sound as though the victims should be grateful that in Part 3 the Minister and the Labour Government allow them to take action when a prisoner gets compensation. Speaker after speaker has stood up and made it quite clear that the victims did not actually want to have a share in any compensation. They just want to get on with their lives. But once again this PC Labour-minority Government has been backed up by the Greens—the “party of principle”, which is how the Greens label themselves. The Greens say they will support this bad legislation for 2 years; they think it will be harmless to support it for 2 years. I tell the Green Party that I am looking forward to campaigning against them during the election—which will be announced to take place on 30 July—to tell the people that that party of principle went to Parliament to support bad legislation.

What has saddened the public today is that we are debating legislation that sets out the whole procedure of how prisoners can claim compensation. It is an endorsement. I want the Minister to stand and take a call and tell us how much is provided in the Budget for him to conduct workshops and education seminars in prisons for the prisoners to understand their rights, and to provide copies of this legislation to enable them to complain.

The Minister did not even take note of what its own defence counsel, who tried to appeal this prisoners’ compensation, said: “The inadequate daylight for prisoners on the slated behaviour management regime was more than many Wellington houses receive.” The Crown was arguing in court that the condition of the prison that was complained about by the prisoners was better than in the houses of some Wellingtonians.

I think the Labour Government has a lot to answer for. What happened to the Government’s so-called promises to provide State houses? We have the Government’s own lawyers saying that ordinary Wellingtonians are not receiving better treatment than prisoners. This Minister, and the Labour-minority Government, keep us here from more important business by debating a bill that would confirm prisoners’ rights to compensation.

Has the Government got its priorities right? It never gets its priorities right, as I pointed out in the Budget debate earlier. The nation is crying out for safety and protection, and for more police. The police got $41 million in the Budget. The Government provided $33 million for tax collectors and a mere $41 million for the police. It is outrageous.

In debating clause 1 and clause 2, the title and the commencement clauses, it actually causes one to reflect back on the content of this debate as to what one may appropriately title this bill, which is soon to become an Act. A couple of thoughts spring to mind. One of them, based on the evidence that has been produced by the Opposition parties, is that we could name this legislation the “Prisoners’ Rights Bill”. The reason is that this legislation gives prisoners, convicts and inmates, the right to access money—taxpayers’ money.

💬 Hon Rick Barker: They get that right now.

I tell the Minister that we could solve the problem by removing that right in its entirety, if we followed the recommendations of New Zealand First. The Minister interjected and said that prisoners have the right to taxpayers’ money now. I tell him that that is precisely the problem, and that this bill does not change that right.

It would have been very easy to resolve that issue. This Government, had it listened to New Zealand First, could have produced a bill that simply stated that inmates who are abused by prison officers—by the Department of Corrections—have the right to have charges laid and heard. Inmates should have the right to see the officer who abused them prosecuted, convicted, and jailed alongside them in the same cell, but that does not give them the right to receive compensatory payouts. The rationale is quite simple, from where New Zealand First sits. If the original victim of the crime that saw the inmate put in jail is not entitled to compensation, why the hell should the inmate be entitled to compensation when he or she is offended against? It is a simple case of basic logic, a logic that seems not to exist in the Government ranks. Yes, it is wrong to beat and bash an inmate. The report into the “goon squad”, a report that the Government fought so long not to have, highlights many examples of inmates being abused by the Government’s own Department of Corrections, and abused in the knowledge that that was going on. It is not appropriate for inmates to be so abused in a civilised society, but it is appropriate to charge the people who do that—and it is appropriate to convict those people and to imprison them. That is where the matter should end. We do not need to have a prisoners’ rights Act that guarantees prisoners will get their money.

Maybe the title of the bill could be the “Victims’ Wrongs Act”, because the greatest wrong here is that victims nationwide will not get all the money. Again, that is what New Zealand First said should occur. Well, if the Government is to still pay out the money and make some of it available to the victims of the original crime, why not go to the next step and put all the money in trust, give the inmate nothing—not one red cent—and make all that money available to all victims? But no, the Government does not want to listen; it knows better than us.

Maybe we could call this bill the “Wake Up and Smell the Coffee, United Party, Bill”, because United Future has only just realised how it can be used and abused by this Government. I commend Marc Alexander, because it is his work that has got United Future, finally, to say no to this bill. But I say to Marc Alexander that in the absence of a solid coalition agreement, the Government can do to him exactly what it has just done. It is saying to him: “Thank you very much for voting for supply and confidence yesterday. Thank you for keeping us all in our Cabinet chairs, with our big, fat salaries, and thank you—

The CHAIRPERSON (Hon Clem Simich): Order!

I am saying to Marc Alexander that the Government is saying to him: “Thank you for that, but now we’re going to go to the Greens and do precisely what you, Marc Alexander, do not want us, the Government, to do.”

The bottom line is that United Future has been done over, like a dog’s dinner. If it survives and comes back to Parliament after the election, I would hope that it will not only have a new leader but, seriously, be very much wiser. Regrettably, Marc Alexander will not be here, yet he is the member who has done the most work for United Future. The “Wake Up and Smell the Coffee, United Party, Bill” would be an apt description right now. But, sadly, this bill will probably go down as the “Slap in the Face for the Taxpayer Bill”.

I thank the previous speaker for his contribution, and I ask him whether he thinks I should make my valedictory speech now, or wait for New Zealanders to vote in a common-sense way and return United Future in the much more powerful position of being kingmaker after the next election—a position that New Zealand First squandered when it had its opportunity, thereby putting National out of contention for two, or possibly three, elections. Nobody will reward New Zealand First for that.

Before I discuss the main part of the topic, which is what we should name this bill, I would like to point out something that is quite curious and interesting: we are talking about victims’ rights. The primary reason the bill is before us is so we can deal with the issues of victims and their sense of injustice. That is what this bill proposes to do. The problem that this bill attempts, woefully, to try to address is that of ensuring that victims are not left out of the loop—that they are not marginalised or put at the outer fringes of our criminal justice system. But this bill actually enshrines that. It actually makes matters more difficult for the victims of crime.

Interestingly enough, not long ago I had a conversation with a Labour member, whom I will not name, who basically accused me of being sanctimonious when I pointed out that she should spend a bit more time with victims, to find out how they feel about things. It is interesting that she thought spending time with victims and advocating on their behalf would qualify one to be regarded as sanctimonious. So I guess the reverse is true: someone who does not spend any time with victims will have a much better perspective of them. That is the perspective of the Government and of the Greens, and it is wrong—it is utterly wrong. If one wants to understand what victims are about, one should spend time with them, to understand why their victimhood chases them and casts a long shadow right throughout their lives. If people did that and understood where victims were coming from, they could never support a bill such as this, because this bill does one thing, if nothing else: it enshrine offenders’ rights above and beyond victims’ rights. It is an appalling bill because of that.

It is true that United Future supported the bill through its early stage and supported its referral to the Justice and Electoral Committee, the main point being that something had to be done. We thought—wrongly, as it turned out—that something could be done to make this bill place the interests of victims first. Unfortunately, the bill does not do that, and that is why we cannot support it. But we gave the Government an out: we offered it the opportunity to put a moratorium in place, so that no more prisoners’ claims could be put forward. The Government, for its own reasons, chose to walk away from that offer. It probably thought the bill would put the issue to rest. Well, it will not.

What can one say about the Greens’ complicity in being the only other party, apart from Labour, to support this bill? The Greens are supposed to belong to a party of principle, but they walked away from their principles regarding GE, and they walked away from Nandor Tanczos’ bill, thinking the marijuana issue may blight their chances at the election. The only Green member who is worth talking to, and worth having a comprehensible conversation with, is Ian Ewen-Street. But he has decided that enough is enough. He is going off into the sunset and leaving the Greens, and I do not blame him. I would too, if I were him. Ian Ewen-Street should be commended for voting with his feet. It is something that the people of this country should take into consideration when they go into the polling booth and see the word “Green”. That party name should be taken off the ballot, because the Greens have no pride of place in this Chamber when it comes to advocating for the right sort of human rights—that is, victims’ rights above the rights of prisoners. This bill is a disgrace.

Ordinarily, at this phase of a Committee stage consideration of a bill, I like to sum up the key tensions, the key policy issues, and try to avoid what can be interpreted as, or is, in fact, party point-scoring. But there is a lovely temptation in this case that I can do both at the same time.

I will quote from the minority report of United Future. United Future has been rescued by Marc Alexander in this case. United Future has been rescued by a man who, as he says, has had contact with victims. It is very interesting that, when we sit in this Chamber, the depth to which the committee members were moved when we saw the victims in front of us—how hard it was for us to fight back tears as they pleaded for this bill not to proceed in a way that would leave them facing the prospect of watching the people who have hurt them get money for trifling, ludicrous claims, while they themselves cannot claim—falls away. The bill changes nothing in that respect. The chance that this bill will reduce the amounts received by prisoners is the same as the chance of one of the victims winning a lottery, because the number of cases where people are entitled to exemplary damages, then find that their particular villain has not managed to go through the human rights route and jump or sidestep all the constraints on suing—the coincidence of that happening—will be the equivalent of a Lotto win, of getting the bonus.

The Government knows that. It was told that by the Law Society. It was told that by nearly every victim who came along. It was told that the victims did not want to have to go through their wounds again. They did not want the system that the Government forces them into, whereby the only role they have in the justice system is as losers—complaining and emphasising the damage. They want a role of seeing that justice is done, and that will suffice.

The whole problem about the bill is that it does not acknowledge that prison is about punishment. The whole idea of punishment is utterly undermined when windfall gains are handed out, not because of anything that the prisoners have done to deserve them but because that is the only way the judges can find to punish the Department of Corrections. Instead of being able to force the department to operate a disciplinary structure that tells prison officers not to breach prisoners’ rights, the courts say they will punish it by handing windfalls to the prisoners. This bill does not change that.

The Chairperson ruled out my amendment to the Corrections Act. Here we have a bill that is said to be about—and there are all sorts of pious words at the beginning—fixing up and removing the causes of these claims, yet it does not even touch the Corrections Act, so my amendment was ruled out because it was outside the scope of the bill. What an emphasis of the travesty that this bill is! It is a piece of classic Phil Goff cosmetics. And the Government is to spend $534,000 this year on setting up a tribunal that might get one or two cases; a tribunal that is going to administer, if history is any guide, no more than a couple of hundred thousand dollars a year, at most. And the Government has put in the Budget that $379,000 a year will be spent running this tribunal, when it might get to consider dispensing a third of that amount. The bill is a very expensive travesty.

I am glad that Marc Alexander brought United Future to its senses. That party was part of the majority that recommended this bill proceed. He has turned that round. I say “Good on him!”, but it is a great shame that we have had the agony that these people went through, the furore in September and October last year when people realised just what was happening. The Prime Minister 4 years ago said to the Hon Margaret Wilson that she did not agree with giving prisoners payouts; that they should be forced to go through the court. The Prime Minister said publicly that she did not agree with it. The Government has had all this time to fix it, but it is too scared of what might happen when its members next go to New York and suck up to the representatives of Mugabe, the representatives of the Sudan—countries that truly torture their people. They are not prepared to say to them that we will not pay our prisoners.

New Zealand First opposes the Prisoners’ and Victims’ Claims Bill, which ultimately puts money in the hands of the scum of our society. The Labour Party is pushing this bill, and United Future wanted to have nothing to do with it, finally. But who came along to help the Labour Party? The Greens did. The Greens cannot wait to jump into bed with the Labour Party.

Sitting suspended from 1 p.m. to 2 p.m.

As you have said, Madam Chair, we have before us the Prisoners’ and Victims’ Claims Bill. This bill has come about because a group of hardened criminals who are in prison for some of the most vicious crimes against society have been able to exercise their common-law rights, and other rights, and to sue prison guards and the corrections service, in particular. That was because the prison guards and the corrections service responded to the disgraceful behaviour of the prisoners while in prison, and because a judge decided that the poor darling prisoners who had murdered, beaten, and raped, and who had destroyed people’s lives, were entitled to some recompense for having the lights on for too long, for being locked up for too long, and for being restrained when shouting out, screaming, and making everyone’s life a misery. The judicial system has decided that prisoners like those were entitled to up to $140,000 by way of damages.

New Zealand First says that the first people, and the only people, who should share in those damages are the victims of those disgraceful criminals, who are really the scum of New Zealand society. New Zealand First says that any funds received by criminals as a result of a successful claim should be paid, first, to the victims of the criminals receiving the compensation, and, second, the balance should be paid into a victims’ claims rehabilitation account. The difference between our view and that of the Government and the Greens—who have only recently decided to help the Government on this issue—is that the Government wants any balance to go to the criminals. New Zealand First does not want any balance to go to the criminals. New Zealand First wants that balance to go into a victims’ claims rehabilitation account and to be shared by victims generally, to help them with the money outstanding to them. We were told in the Justice and Electoral Committee that victims are currently owed about $51 million in reparation by the criminals in New Zealand society.

Of course there should be redress for prisoners, and the Government should take appropriate action against prison officers and any other persons employed by the Department of Corrections who have created a situation in which prisoners are entitled to make a claim. Remedies such as dismissal from the Department of Corrections and prosecution should be utilised by the Government to ensure that any situations that would give rise to claims by criminals are not repeated. Even as we speak, a case is taking place in the Court of Appeal of New Zealand, just down the road, about this matter. That judgment was given by a judge a short time ago, so there is a judgment in effect that states that those criminals are entitled to that money. New Zealand First has therefore put forward an amendment, stating that this Act of Parliament should come into effect from 1 January 2005. We say it should be retrospective, and our amendment states: “and applies to all actions currently before the courts, including any actions commenced before the 1 January 2005 which have not yet been concluded, and further applies to any such actions which are currently the subject of an appeal before any court.” We want to make sure that any possible claim that is still current before the courts, even by way of an appeal to the Court of Appeal, is caught by legislation that makes sure that criminals do not get the money.

But the Government disagrees with us. Labour and the Greens say that those vicious murderers, those people who have beaten children to such an extent that their mothers cannot recognise them, should be entitled to money. We say that this law will encourage criminals to misbehave in prison and make the lives of prison officers an absolute misery, and will encourage more and more of those crimes and that misbehaviour in prisons. We are not dealing with people who, having embezzled some money, go to prison, do their time, and come out. This legislation is concerned with really vicious criminals and thugs, and we in New Zealand First say that they should not get a brass razoo.

The Minister has made much play of the fact, indeed it is part of the Government’s rationale for this bill, that the Government believes that the Baigent case—Simpson v Attorney-General [1994] 3 NZLR 667—requires monetary compensation for prisoners. That is the essence of the Government’s argument. It even stated it in the commentary on the bill: “New Zealand jurisprudence supports the view that the availability of compensation for breaches of domestic human rights law is part of compliance with the covenant.”

Let us look at the facts of the Baigent case, because it is radically different from the circumstances we are faced with in this bill. The only commonality is that the case refers to the New Zealand Bill of Rights Act and proceedings therein. In Baigent’s case, what actually happened was that police officers obtained a warrant for search. There was some confusion as to the appropriate street address on that warrant, and they went to a person’s place to search for drugs, as the warrant authorised. They found out at the premises they had gone to the wrong premises. That is the bizarre thing, but the officer in charge said to the occupant of the house, Mrs Baigent: “We often get it wrong, but whilst we’re here we’ll have a look around anyway.” Bear in mind that she was a completely innocent citizen, living at home, minding her own business when the police arrived and said they had a warrant. The police more or less said: “We’ve got a warrant, it doesn’t actually talk about you but, nevertheless, we’re here, so we may as well search anyway.” It is hardly surprising, in that particular set of circumstances, that the court would find that a perfectly innocent citizen had had her rights violated, and, given the only conceivable remedy in that case was damages, that damages would be awarded.

The Minister in the chair, the Hon Rick Barker, has made much play that National did not pass special legislation to reverse that decision. Why would we? Why would anyone take a right away from a perfectly innocent citizen, sitting at home, minding her own business, being subject to a search that had no legal authorisation? In fact, one would expect there to be a remedy in such a circumstance. What I would like to know from the Government is how it draws from that case the right for a prisoner, a person convicted of an offence, in a prison and subject to the behaviour management regime, to receive compensation. One might ask what is meant by “subject to the behaviour management regime”. It means a regime for the worst prisoners in our jail system. It is the category of prisoners who taunt the guards, get into fights, cause trouble, attack guards, burn materials in their cells. It is the really difficult prisoners. In fact, one of the people involved in the case before the courts at the moment is noted to be literally the worst prisoner in the country.

Hon Georgina te Heuheu: The worst?

He is the worst in terms of his behaviour in the cells. That is why he was subject to the behaviour management regime. It largely keeps such a person in solitary confinement for the protection of other prisoners, the protection of prison guards, and to try to change the person’s behaviour. As has been said today in the Court of Appeal, the regime is quite reasonable. Those prisoners have proper meals, proper exercise, a decent-sized cell. As the Solicitor-General said, it may not be the Hilton but it is, after all, a prison.

Now, finally, the Crown is defending the behaviour management regime but it is passing a statutory code for that kind of person. I say to the Minister, let us be honest and call it a prisoner compensation code; a code that will allow such a person to continue to sue for damages.

I move, That the question be now put.