Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill

I move, That the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. At the appropriate time I intend to move that the select committee reports back to the House on Monday, 15 April 2013. The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill makes three major changes to the Prisoners’ and Victims’ Claims Act 2005. It repeals the sunset clause in that Act to make it permanent, it suspends the civil limitation period for victims’ claims while money is being held by the Ministry of Justice, and it clarifies for the avoidance of doubt the application of the Act to unlawful detention claims.

The Prisoners’ and Victims’ Claims Act 2005 was passed by the previous Labour Government, and has two main objectives: to ensure that financial compensation is treated as a remedy of last resort for prisoners whose human rights have been breached, and to recognise that victims should have the first claim against any such compensation awarded to prisoners. The Act provides clear statutory guidelines for the rare circumstances in which courts can award compensation for a breach of a prisoner’s rights. For example, prisoners must make use of the existing complaints mechanisms available to them, and if other remedies can provide effective redress, they must be used instead of financial compensation. This ensures that compensation is reserved for exceptional cases where it is the only appropriate remedy.

It is important to note, to avoid confusion on this point, that when I say “prisoners”, I am using that term to refer to all persons under the control or supervision of the State. The Act applies to claims made by prisoners, whether sentenced or remanded; people on community-based sentences or home detention; people subject to conditions under the Parole Act 2002; persons arrested and detained under the Armed Forces Discipline Act 1971 who are awaiting release or trial; or members of the armed forces who are service detainees or service prisoners.

If compensation is awarded to a prisoner or if a settlement agreement is entered into, the Act requires that the agency responsible for the breach must pay the money to the Secretary for Justice. Deductions are made first by the Ministry of Justice to pay any legal aid debt related to the compensation claim and any outstanding reparation owed to victims in any earlier orders under the Act in favour of victims. The Act then allows victims of a prisoner to claim against the money through a simplified victims’ claims process.

This process provides an easy and cost-effective way for victims to take a civil claim in circumstances where the offender has the means to pay at least some of the damages, and also, importantly, when the Crown has control of the money. The ministry works with agencies, courts, and victims’ advisers to identify possible victims and contact them. Notices of payments to prisoners are also published in the Gazette, on the ministry’s website, and in newspapers. A victims’ special claims tribunal then determines any claims received.

The Act will effectively expire on 1 July 2013, due to the sunset clauses contained in it. If the Act expired, the restrictions on the awards, compensations, and simplified victims’ claims process would no longer apply to prisoners’ claims lodged from that date. The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill will, therefore, repeal the sunset clauses in the Act and make the current regime permanent. It is important that we keep the clear statutory guidelines on awarding compensation and that victims continue to have an easy way to make a civil claim if prisoners receive compensation payments. In addition, the bill replaces the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill, which was introduced last year. That bill has now been discharged.

The new bill reflects the change of direction I signalled in October. I indicated that I would rethink the redirection bill and seek the views of other parties. The bill will make sure victims will continue to benefit from the current regime, while also recognising that we need to strike a balance between victims’ rights and the legitimate claims of prisoners whose human rights have been breached. The bill ensures this system is fair and balanced, and avoids any unintended injustices.

Additionally, the bill ensures that victims’ ability to bring claims within the civil limitation period is not affected by any administrative delays. It stops the clock on the civil limitation period on victims’ claims while the Ministry of Justice makes the necessary deductions from the compensation to pay legal aid and existing debts to victims. This means that victims of the prisoner will not be locked out of the simplified claims process due to administrative delays. The bill also includes a clarification for the avoidance of doubt that the Act applies to prisoners’ claims of unlawful detention. These claims arise from time to time, generally when a prisoner is held beyond their statutory release date due to an administrative error.

The underlying purpose of the Act is to require offenders to address the harm that they have caused to their victims before receiving the benefit of any compensation for breaches of their rights by the Crown. Abuse by people in power is not acceptable in relation to prisoners, and it is something that we take very seriously. The Government has great confidence in the ongoing integrity and professionalism of Department of Corrections staff working in New Zealand prisons. However, if breaches do occur, we should respond fairly, in a way that appropriately balances the rights of prisoners and their victims. I commend this bill to the House.

I want to begin by recognising the professionalism of the Department of Corrections and the enormous efforts that the management of that department has gone to over the last decade, in particular, to really lift the game of the performance of its staff, particularly its custodial staff. It has been a privilege over the last year to have visited I think all but four or five of the Department of Corrections’ facilities and prisons around the country, and to be able to see for myself this improvement.

The history of the legislation of which this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill is the latest chapter is that when the Hon Phil Goff was the Minister of Justice in the previous Labour-led Government, there were abuses of prisoners by prison officers. There was litigation on the subject of those abuses, and the court held that those abuses were systemic in nature. The Department of Corrections needed to take action to address that systemic abuse, and I believe there is evidence that it has done so. In the course of the litigation, the court eventually, when the matter was taken on appeal, restricted the levels of compensation that would be properly payable to inmates whose rights had been abused by the Department of Corrections. But before that happened, Parliament had moved in the way that the Minister of Justice outlined in her introductory speech on this bill to create a regime that would provide for the payment of compensation to those in custody, and also a regime where those payments could be accessed by the victims—

The ASSISTANT SPEAKER (Lindsay Tisch): Sorry to interrupt the honourable member. The time has come for me to leave the Chair for the dinner break. This debate is interrupted. I shall resume the Chair at 7.30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

Before the dinner break I had gone through the history of the series of bills and Acts to which this bill is the successor, and I was about to make the point that the original legislation, the Prisoners’ and Victims’ Claims Act, because it was experimental in nature and because it was responding to a particular problem at a particular time, unusually for our parliamentary practice contained a sunset clause. I think that is an indication that this House was very much enacting the original Act on a wait-and-see basis. Is this novel approach going to be one that we want to persist with? Is it going to work? Is it going to be practical? Is it going to be effective? I think the history of the legislation is instructive. There has been a low level and a low number of claims that have been made under it. So when the Minister came to me last year and asked me whether, given the approaching date of the sunset clause’s effectiveness, it would be in order to extend the Act for another year in order to negotiate between the parties in the House what the form of the new legislation—if any—on this basis ought to be, I said that I thought that would be fine.

I think the issue now is that we need to look at the adequacy of what is being proffered to the House. I have two problems with it. They are problems that both the Hon Phil Goff and I foreshadowed extensively in the debates around the legislation that extended the sunset clause.

The first problem is this. This is supposed to be victim-centric legislation. This is supposed to be legislation that says from this Parliament to those who suffer the horrendous consequences of crime that we want to do something to show that we understand that that is an awful situation to be in, and that they have a right, where possible, to be made whole. This legislation does that by saying that if a person in custody or under supervision in custodial terms receives a payment from the Crown, then a procedure exists by which that offender’s victims can recover some money from, effectively, the offender in token of the suffering that they have gone through. That, on its face, sounds really good, and it is something we have supported. But the question has to be asked: why stop there? What happens if an offender receives some other form of windfall that is not from the Crown? What if the offender receives a bequest or a legacy while in custody or detention, or otherwise under supervision? What if they receive a lottery win? These questions are not addressed, and yet they ought to be. This is supposed to be legislation about those who suffer the adverse consequences of crime. If we are serious about putting in place a regime that looks after people in that situation and does seek to make them whole, we as a Parliament should not be concerned about the source of the windfall payment that comes into the hands of the offender. We should simply look at whether or not there is such a payment, and then subject it to the process in the bill. This legislation does not do that. It is, for all its masquerading as victim-centric, actually punitive in respect of the offender.

I think that brings me to the second objection that I would raise in this debate, and it is this. We have always had a tradition in this country and in the common law traditions that we have inherited against double jeopardy. The law and the constitution say that there should be only one punishment for a crime. Well, if that is right, then it is wrong in principle to say to an offender that not only will we take away your liberty but if during the course of your time in custody or supervision you come into a payment, we also will take money away from you and pay it to someone else. So the second problem I have with this legislation is that there is no recognition—and this is something that the Minister told the New Zealand Herald last month that she would take pains to address and has not—that there is a real danger here of punishing people twice. I think there should be a provision that says that if somebody is in custody and they come into funds that are then to be paid to the victims of their offences, that should weigh as to their penalty. The Parole Board, for example, should have to take that into account in deciding whether or not they ought to serve their full period of a custodial or other sentence. And yet there is no recognition of that principle in this legislation. So I think we need to take real care as to how we proceed in this case.

This legislation, as I said earlier, was always experimental. It was always a response to a particular series of circumstances at a particular time. That is why the original Act had a sunset clause. We then saw the High Court, the Court of Appeal, and the Supreme Court address the cases that led to the particular concern. At the same time, we saw the Department of Corrections smarten up its act considerably. Those two matters beg the question of whether the legislation remains necessary. And then we have these two other flaws: the fact that although it appears to be dressed in victim-centric clothing, this legislation is actually very much about doling out extra punishment, and it does, therefore, offend an important principle. Finally, on top of that we had the assurance from the Minister that there would be consultation about the form of this legislation. There has been none. For all those reasons, the Labour Opposition will not be supporting this legislation.

It seems to be my permanent lot in the current Parliament to follow Mr Chauvel every time I speak in a debate. He is a very thoughtful member. In fact, I have to say that my mother—who is probably watching at this moment, as she is a bit of a parliamentary addict—seems to think that Mr Chauvel gets every speaking call that the Opposition is allocated. Be that as it may, I think that this bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, needs to be seen in the wider context of the Government’s commitment to putting victims at the heart of our justice system. That is not just a slogan; that is a very real commitment, and I think it is something that the New Zealand public are very anxious to ensure that we can achieve. National is firmly committed to building a safer New Zealand. It is one of our core commitments that we campaigned on last time. It is a core focus of our Better Public Services strategy. We have embarked on a very comprehensive programme of reform in order to protect communities, to prevent crime, and, as I say, to put victims first. So, as we look at this particular bill, which I acknowledge is actually quite a long time in evolving, we need to remember that that is very much a core focus of it. I just remind Mr Chauvel of that, in light of some of his previous comments.

It is aimed at striking the right balance between retaining support for victims, while at the same time maintaining fairness to prisoners. The latter part of the equation is often not a very popular point with the wider public, but, nevertheless, in a civilised and decent society it is something that we should pay due respect to. I think it is important for those who may not have been listening to this debate before the dinner adjournment just to explain that the bill makes the existing regime, which is due to expire on 1 July next year, a permanent one. As I have said, this issue is one that requires balance, sensitivity, and a clear explanation, given the strong public interest in matters of compensation. It is always something that strikes a lot of public comment, whenever compensation, particularly for prisoners, is in the news.

The Prisoners’ and Victims’ Claims Act 2005—of course, that was a measure of the previous Government—responded to the concern that offenders should not receive compensation for wrongful treatment without first repaying the debt that they owe for the harm that they caused their victims. I would imagine that there would be widespread support for that particular sentiment. It is important that victims continue to have an easy way to make a civil claim if prisoners do receive compensation payments. The whole point of this new bill is to ensure that the system is fair and balanced, and will not lead to unintended injustices. After all, victims of crime are in the system entirely without any fault and entirely without any choice in the matter. They have to deal often with the considerable financial, emotional, and physical effects of crime long after it has been committed. In fact, we know that there are many who are permanently traumatised by that experience, so provisions for better compensation of victims have been an absolute priority for this Government. I have to say that fairness is not possible, because the only thing that could possibly be fair is for them not to have become the victims of crime in the first place.

But I am pleased and proud that National established a victims’ compensation scheme in our previous term in office. A few people mocked the establishment of the $50 offender levy on all offenders, regardless of the crime that they commit, but I am delighted to say it has been an unqualified success. It has worked incredibly well. In the first year, considerably more was taken in than had been expected. It is a levy that is in addition to any sentence or court order that is imposed. We have used that new levy to expand services and support for victims of crime, particularly of serious crimes, and their families. More than 4,000 victims or their families have received extra support in the first year of the levy, and the levy has funded 13 different services for victims of serious crime. There is quite a lot that it has gone towards. We have also taken numerous steps to protect victims: 6,000 families have been protected through police safety orders. Victims now have more say in impact statements, and that is something that they warmly welcome in the court system. We are improving the victim notification system, and we are setting up a victims’ centre to improve the information and services that victims receive.

As I say, this is a measure that needs to be taken in the wider context. It is about trying to get the balance right. I dare say—and particularly having listened to the comments Mr Chauvel has made—that there will be some submissions, and we will take careful note of them when it comes before the Justice and Electoral Committee. But I believe that this is a measure that will enjoy widespread support, and I welcome its introduction this evening.

It is with some regret that I rise to oppose this bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. It is not because I do not believe that we should have victim-centred legislation—I believe that we should—but because I believe that this legislation is a thoroughly inadequate way of ensuring that offenders genuinely address the wrongs that they have done to their victims.

I say that from the perspective of the Minister of Justice who put in place the original piece of legislation, the Prisoners’ and Victims’ Claims Act 2005. I did that at a time when we were dealing with the residue of a Department of Corrections that had gone beyond the law and had breached the responsibilities that it had for the proper care of prisoners. Prisoners are there. They are locked up. They are locked up because they have committed terrible crimes. They are there because they deserve to be there, but in our society we operate a system whereby the agencies of State are not exempt from the law; they have to operate under it. When they breach the law they should be called to heel on that. But I was faced with a situation arising out of what the Department of Corrections put in place called the behaviour modification regime. That regime was found—it was started under National and continued under Labour—to be in breach of international requirements on us. The fear that I had was that there were some lawyers who were keen on goldmining this case to make a lot of money for themselves and to give a bit of it to the inmates.

💬 Charles Chauvel: Outrageous.

It is outrageous, Mr Chauvel. I am sure you recognise that most lawyers would not sink to such depths, but unfortunately it happens.

What worried me was when I looked at the individual cases of the inmates who were covered by the Taunoa case. They had done horrendous things to their victims and not one of them had paid a penny in reparation or restitution to the victims. The reasons for that were pretty straightforward: they came from dysfunctional backgrounds, they had no savings, and they had no income, because they were going to be locked up for a long time. The victims got nothing, and suddenly the offenders, because of the Department of Corrections breaching its responsibilities, were going to get a large handout. I thought that that was fundamentally wrong. I just thought it does not make sense. Yes, the State has been wrong in its actions, but why should these guys get the money and their own victims not get a cent in compensation? It seemed wrong to me, and I brought this legislation in.

I have got to say to the members opposite that the National Party in Opposition opposed it and made some outrageous statements that we should ignore all United Nations conventions about the treatment of prisoners. It is singing a different song in Government, and that is probably a good thing.

What I wanted to see was what I have always believed in: a system of restorative justice. Restorative justice is probably the best form of justice because it requires when somebody harms another person that there is a responsibility on the offender to put things to right for the victim to the extent that they are able to. There are a lot of different ways in which you can put things right. Sometimes it is by showing genuine remorse and apologising and asking for forgiveness. That can be shallow and it can mean nothing or it can be genuine. When it is genuine it has a real impact on the victim. The Samoan culture, for example, has a practice called ifoga, where the offender has to go and cover himself with a fine mat and sit in front of the victim’s house until the victim is prepared to forgive him. We might be disparaging about those things, but that produces a real form of natural justice.

The other way you can do it is by restitution and reparation. Money does not solve everything, but if a victim is suffering financial consequences from what the offender has done to them, getting restitution actually does make a difference. It is a concrete form of payment from the offender to the victim, and that should happen. Of course, it does not happen, for the reasons that I talked about before.

I was not sure how this new regime was going to work. I therefore put some sunset clauses into it. I wanted to see how the thing would work. If it was effective then you might continue it. If it needed improving because it did not come up to the standards that we wanted, we could make those changes, or we might decide simply that after the Taunoa case this was not a frequent enough event to actually have special legislation to cover it. The idea was that there would be a proper review of the legislation. Well, sadly, National, after 2008, in Government did not do that review. We were caught in the situation last year where the legislation was going to expire and there was nothing in place that would improve the situation for the victim. So the Labour Party in Opposition did the responsible thing and said to the Minister: “We will work with you. We will extend this legislation for a year until we do that review. We will work together for the good of the victims in this country, and we will try to find a better way of doing it.” Maybe Charles Chauvel and I were naive, but we actually accepted the Minister at her word.

I have got to say to this House that the Minister breached her undertaking and her promise. There was no consultation. There was no review that I can actually see—any meaningful review that even took place. So we wasted the time last year in extending the legislation. There is still no review, no consultation, and no attempt to reach across the House and say: “Let’s work together and get something that really does work properly for victims.” I think that that is a disgrace, and I think on that basis it is impossible to support this piece of legislation.

But I want to still do my best to be constructive for the Minister and say that this is still an opportunity to do the right thing for victims across the board. I am not interested only in helping that tiny number of victims who are in a situation where their offender gets a payment from the State because the State has breached its obligations. That covers a tiny number of people. Every day I read about and I talk to people about a situation where the victims are left penniless and the offender does nothing for them.

One of the worst examples of that is in the case of white-collar offenders. White-collar offenders come from the top levels of society often. They are the accountants and the lawyers and the financiers. They live pretty well. But they get greedy and they get reckless, or both, and they rip people off. I have got people in my electorate who have lost their life-savings to white-collar offenders. You know, to give credit to the courts, there have been some reasonably tough sentences brought down, but in the end those offenders will do a couple of years in prison and they will come out. We have seen it happen in the past. They will come out, and because they have got the education and the contacts and the backing, they will make a lot of money again. Everything will be sweet for them, but my victims are living out the last days of their lives with their savings destroyed by these crooks who ripped them off. Those crooks go back into society and they never have to pay the money back.

What makes it even worse—what makes it even worse—is that they are protected by trust laws. They go into prison, they make no payment in reparation, or too little payment, but they have their money protected and/or hidden in family trusts. So they come out of prison and they have got the money there, because it has been protected, and they have got the skills, the education, and the contacts to make a lot more money, and the victim is locked out on the outside. I say to this Government that that is what it should be looking at. It should be looking at a much wider scheme that ensures that those who have committed offences against society and against their victims are required to set things right for their victims.

This bill does nothing of that sort. This bill is a cop-out. It is second rate. It is a broken promise by the Minister, who did not honour her undertaking to consult with the Opposition on this. She has sat on her hands and done nothing. She brought this legislation, which does practically nothing, back into the House. We hear the fine-sounding speeches from members of the Government talking about victims’ rights, but with a piece of legislation that hardly touches on victims’ rights or setting things right for the victims of our society when the offenders should be made to do that.

I say to the Government that this legislation is not good enough. We are opposing it because it does not do what it should be doing for the victims. I ask the Government finally to honour the promise that it made across the House, and bring in proper legislation that would do the right thing for victims.

Kia ora. Overall, it is disappointing that here we are, on the second to last sitting day of the year, in the middle of December, allegedly moving into the season of goodwill and good cheer, and we are once again debating the latest iteration of this dismal legislation, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, which seeks to somehow serve victims by punishing victims. We have heard a lot about victims’ rights, but the people at the heart of this legislation—people in the State’s custody whose human rights are abused, people who are mistreated while incredibly vulnerable in the custody of this State—are also victims. We are not hearing too much about those. This legislation and the preceding legislation seem to establish a hierarchy of victimhood. Frankly, I do not accept that around something as fundamental as human rights.

It is true that the Greens actually supported the initial 2005 legislation. We opposed it at its first reading. We were persuaded to support it at its third and final reading, on the basis that it would be short term—that it would have an expiry date; a sunset clause was built into it—and also that there would be a comprehensive overhaul and an inquiry into how we can deal better with victims and make our criminal justice system genuinely victim-centric, with a genuinely restorative approach in which we can heal wounds, make some restitution to people, and, hopefully, reduce the likelihood of reoffending.

I think the Government ought to take pause to think. We have just heard from the gentleman who was the Minister of Justice at the time this bill was put in place, the Hon Phil Goff—

💬 Hon Phil Goff: It’s a long time since I’ve been accused of being a gentleman, David.

Yes. The party that initiated this legislation, the Minister who led it, and a party that supported it have now turned against it. It was an experiment. It may have had value for a short time in a very specific situation. Mr Goff is quite right: those offenders who were tortured at Mt Eden prison—and they were tortured; that was the finding of the court—were not pleasant people. They were very, very tough people. They were quite unwell, about as unpleasant as can be. It was a unique, one-off situation that this bill was responding to. The Government is using as a justification for the embedding of this dreadful legislation as a permanent feature of our legislative canon that the public wants it so. It is suggesting that the public demands that victims must be given compensation and that prisoners ought never to receive any. I simply do not accept that. What limited research there is available tells us that the public is actually much less punitive than one would imagine, if you look at the corrections and other forms of legislation that have passed through this House in the last 10 years or so. Anecdotally, we all know—and I talk to people a lot about this stuff, about prisons and corrections and the like—and, yes, if you open a conversation about that, immediately the knee-jerk reaction from people involves locking doors and throwing away keys.

If you scratch one inch below that surface, New Zealanders are actually much more reasonable than that. New Zealanders will listen to a well-constructed argument. Very few offenders go away for ever—only the worst of the worst. We know that most of the people in our prisons ultimately will come out. If the message we are giving those people while they are in jail is that they have no human rights and they have no right to receive compensation if their human rights are compromised by the State, what is that message telling them? It is that they are less than human, that they do not have the normal rights of a citizen. It is brutalising and it is dehumanising, and we will all suffer the consequences of that when these people are finally released back into society. The likelihood of those people being genuinely reintegrated back into the mainstream and becoming good citizens is much diminished if they are subject to this sort of legislation and the expectations that are built into it.

The regulatory impact statement is a very interesting read, and I recommend it to anyone who has not read it. It has a series of options. Option one is to allow the status quo—allow the existing legislation simply to expire. The regulatory impact statement tells us that in the short term that would expose the Government—the State—to some financial risk. Inevitably, there would be some further claims against the original legislation. But why do we not simply accept that risk, take that cost up front, and then move on and develop some genuinely victim-based legislation? Our integrity and our reputation as a country that acknowledges and respects human rights are worth a great deal more than any short-term cost that might be imposed if this legislation is allowed to expire. There have, after all, been something like only 25 awards that have been subject to victim claims since 2005. There are another 15 or so in the offing. We are talking about, in total figures, some few hundreds of thousands of dollars. In the scheme of things it is rats and mice. It is not significant numbers; it is pennies. It is too cheap a price to sell ourselves out for—to sell our reputation and our integrity.

Clause 48 of the regulatory impact statement, as I have said, suggests that letting the Act expire is the best way to ensure that we comply with domestic and international human rights obligations, because this legislation has always been on incredibly shaky ground in terms of our human rights commitments internationally. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the most obvious one, but not the only one. There have been some very tortured semantics brought to bear to say that, well, yes, prisoners can get compensation, which is what the international agreement demands, but, of course, we know that in reality this legislation endeavours to make it virtually impossible for any prisoner who is offended against to receive genuine restitution.

The regulatory impact statement goes on to say that this new option ensures that offenders do not receive financial compensation for wrongful treatment without first having to redress the harm they have caused. I have no particular problem with that. We are not opposed in principle to any money coming to prisoners being disbursed to their victims. But in the way this is done—and Mr Chauvel has outlined the exclusivity of this legislation—other forms of income for prisoners would not be subject to this. Why is it that we want to diminish the constraints on the Crown? There is no doubt that if this legislation is embedded, the likelihood of inmates bringing complaints or bringing cases against the Crown will be diminished. It will be reduced. Why would offenders put themselves through a claim against the Crown knowing full well that they will not get any significant financial redress if and when the Crown is found to have acted against their human rights?

Money is not the sum total of restitution, and, again, the model of restorative justice is highly sophisticated. It is complex. It is hard. It takes time. But it is ultimately where we need to go. We need to go to a genuinely restorative place. Extending the life of this legislation, making it permanent, takes us further away from that place. It is a short-term fix now treated as if it is a long-term solution, which it patently is not.

One remarkable new feature of this bill is that it talks about illegal or wrongful detention, false imprisonment of people, and not only that it will be under the ambit of this bill from here on but that it has been made retrospective. Retrospective legislation is seldom good legislation. It has a place, a very limited place, and this is not one of them. It is extraordinary to suggest that a person who has been kept in prison longer than the court decreed they ought to and who has successfully claimed against the Crown will find that any financial redress will also be subject to this new law. It goes on to say that “if the courts found unlawful detention claims should not have been subject to the PVC Act”—that is, retrospectively—“the Crown may be liable for some payments made in accordance with the Act.” This sort of reflects the consultation, if one can call it that. The Department of Corrections, understandably, the Ministry of Foreign Affairs and Trade—I am puzzled as to why they were one of the very privileged few who had opportunity to submit. Treasury is another. This bill reeks of risk aversion in terms of saving that last dollar. It is willing to sell out our integrity, sell out our reputation as a country that respects human rights for everyone. I think the price is far too high. We will continue to oppose this bill.

It is a pleasure to take a short call on the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. The purpose of this bill is to make restrictions on awards of compensation and the victims’ claims process in the Prisoners’ and Victims’ Claims Act 2005 permanent.

We make no apologies that we are aiming as a Government to build a safer New Zealand. We have embarked upon a comprehensive programme of reform to protect communities—we all know about the police safety teams and the neighbourhood policing teams—prevent crime, and put victims first. We are staying tough on criminals and keeping record numbers of police on the beat, and we are focusing the justice system on the rights of victims.

It is important to note that the new bill addresses some of the concerns raised by a couple of the previous speakers in that it replaces a previous bill introduced in 2011. The previous bill put any money left over from payments to offenders direct to funding general victims’ services rather than to the prisoner. Consideration by Cabinet led to the decision that the redirection of all the balance of prisoner compensation to the victim support fund would be unfair—Cabinet thought that would be unfair. The bill retains support for victims while at the same time maintains fairness to prisoners.

So what are some of the fundamental things in the Prisoners’ and Victims’ Claims Act 2005? The Act underlines the rare circumstances in which courts can award financial compensation to prisoners for breaches of their human rights. It allows certain amounts that prisoners owe, such as reparations and legal aid related to their human rights - breach claim, to be deducted from any compensation, and it provides a simplified process for victims to make civil claims against compensation payments before anything is paid to prisoners. Victims can make civil claims seeking redress for the harm they suffered, such as emotional harm, or property damage, or loss caused by an offender.

The Prisoners’ and Victims’ Claims Act 2005 responded to the concern that offenders should not receive compensation for wrongful treatment without first repaying the debt they owe for the harm they caused their victims. It is important that victims continue to have an easy way to make a civil claim if prisoners do receive compensation payments, and we believe that this new bill will ensure the system is fair, balanced, and will not lead to any unintended injustice. I commend the bill to the House.

This bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, effectively re-enacts the Prisoners’ and Victims’ Claims Act 2005 so that it will continue in force beyond the extended sunset date of 1 July 2013 so the restrictions in the current law and the process by which prisoners’ victims can claim for an award made to a prisoner are simply carried over indefinitely. New Zealand First members expected a new, updated piece of legislation rather than a simple re-enactment of the 2005 law, so this bill in this form is something of a surprise to us.

I would have to say, having just listened to the last speaker, Cam Calder, that his is a view looked at through rose-coloured glasses, and that is not something that New Zealand First will do. It expects a rigorous examination of the current regime in the current legislation to see, firstly, whether it does, in fact, work, and, secondly, whether it achieves its stated objectives. New Zealand First will vote for the bill, but only as far as to the Justice and Electoral Committee, which it wishes to carry out a thorough examination of it. We expect changes, and we expect a genuine review as part of the select committee process. As far as we are concerned, that will mean a full examination of the original 2005 legislation, not just an examination of the provisions of this particular amendment bill.

I am not saying necessarily, and New Zealand First is not saying, that the current legislation is a failure. I do not know—we do not know—yet whether that is the case. But we do know that the principles must include these things: first of all, being a prisoner means being penalised only by the temporary removal of personal liberty and by incarceration. It does not mean any additional punishment in any way concerning prisoners’ claims. Prisoners should have the opportunity for rehabilitation, education, and reorientation in their direction of their future life. Secondly, it does not mean that there should be any loss of other rights for prisoners. It does not mean the loss of the right to accident compensation for genuine injury or disability from genuine accidents. It does not mean the loss of the right to compensation for significant mistreatment, should that occur.

On the other hand, the rights protected in this way must be balanced against the fact that there is considerable concern in the community that prisoners abuse some of those rights, and we all know that there are cases where that has happened. Those are genuinely held concerns in the community, and we must give full attention to them. We certainly should not mollycoddle prisoners, and we should make sure that there are no rorts of the kind that we have seen by some prisoners in the past.

New Zealand First will want to make sure that the re-enacted legislation 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 appropriately protected. So that is where the balance must be struck: protecting the rights of prisoners on the one hand and, on the other, meeting community expectations that prisoners’ compensation be accessible by their victims to meet the claims properly awarded made to those victims. The select committee will be the place for all that to be looked at.

One of the matters that I think needs consideration is section 13(1) of the 2005 Act, which says that “No court or tribunal may, in [these sorts of] proceedings … award any compensation … unless satisfied that—(a) the plaintiff has made reasonable use of all the specified internal and external complaints mechanisms reasonably available … but has not obtained in relation to that … redress that the court or Tribunal considers effective; and (b) another remedy, or a combination of other remedies, cannot provide ... redress that the court or Tribunal considers effective.” The possible problem with that legislation is in the words “redress that the court or Tribunal considers effective”. I think that needs further consideration, and it certainly needs advice from officials as to how that sort of assessment has actually worked in practice.

In section 13(2) there is a need for similar reconsideration and advice, because that refers to how “In this section, reasonable use of a complaints mechanism means the use that the court or Tribunal considers it reasonable for the plaintiff to have made in the circumstances.” So “reasonable” means reasonable, and that is a brilliant thing to say in a piece of legislation. So what does it mean? We are going to have to get some advice on that and to see what effect that has had in practice. It is a subjective test, and we all know that that is often the cause of considerable trouble in other legislation.

In section 14 there are other matters to be reconsidered too. That says that a court or tribunal must take into account certain matters that are specified in section 14(2). Those include in section 14(1)(b) “the quantum of an award … to provide effective redress.” What is “effective redress”? Effective compared with what? I would like to hear about that from the officials. We also see, for example, in section 14(2)(b): “whether the defendant’s breach of, or interference with, the right concerned was deliberate or in bad faith;”. That is something to be taken into account. I do not understand, really, why that is relevant, given that it is the breach itself that is the issue, not whether it was deliberate or in bad faith, but I am willing to listen to explanations about that too.

In section 14(2)(c) the words “relevant conduct of the plaintiff” are used. Relevant to what? What does that mean? There is just not enough guidance, and I would like to hear advice about that as well. In section 14(2)(g) we see the provision: “the extent (if any) to which effective redress in relation to that act or omission has been, or could be, provided otherwise than by compensation;”. I would like to know whether that actually occurs in practice, and, if so, how well it has worked. Finally, in section 14(2)(h): “any other matters the court or Tribunal considers relevant.” That is a pretty open-ended invitation, and I would like to hear more advice on that too.

However, I want to make it clear in closing that, firstly, New Zealand First does want to see an effective and practical way of facilitating victims’ claims against prisoners. We in New Zealand First do believe in promoting victims’ rights, and this is one valid way of doing it, provided prisoners’ rights are also appropriately protected. But it must be workable and it must be fair. As I have already said, important prisoners’ rights must not be unduly compromised. I think there is a lot in the 2005 piece of legislation that needs review, needs clarification, and needs improvement. So, as I have said, it is a surprise that this is simply being put up for re-enactment without that review and without that improvement. That is something that we will simply have to try to do through the select committee process. Nevertheless, I look forward to the select committee stage to discuss all of that, and, for that purpose, New Zealand First will support the bill going to the select committee stage, but it may well not consider it further, unless the Government is willing to consider improvements and amendments to the bill.

I am very pleased to speak to the first reading of the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. This bill is to make permanent the restriction of awards of compensation and the victims’ claims process in the Prisoners’ and Victims’ Claims Act 2005. It was a Labour bill, so I actually find it quite surprising that Labour is opposing this tonight.

The regime in the 2005 Act expired on 30 June this year, which necessitated an interim bill earlier this year to extend that date to June 2013, allowing time for this bill to be passed. And I believe that the Minister of Justice wants it reported back by April next year.

The 2005 Act outlines the rare circumstances where courts can award financial compensation to prisoners for breaches of their human rights, and it is concerning that this has actually happened in New Zealand. The 2005 Act allows any money owed by prisoners, such as reparation or legal aid, to be deducted from any compensation.

In addition, the Act provides a simplified process for victims to make civil claims against compensation payments before the prisoners are paid out. Importantly, this new bill softens the interim bill, which puts that any money left over from payments to offenders be directed to victims. After consideration, Cabinet felt that this was unfair—that the payment of the balance of the prisoners’ compensation to victims would be unfair—and therefore that decision was reversed.

This bill does retain support for victims while maintaining fairness for prisoners, and I commend this bill to the House.

That member, Jackie Blue, obviously does not have a very good recollection of the matter coming before our select committee, the Justice and Electoral Committee, just a short while ago. The Prisoners’ and Victims’ Claims Act when it was originally introduced was introduced as a short-term measure, and that was the reason for putting a sunset provision into it. I think it has had about three sunset provisions—2007, 2010, and 2012—and now the 2013 deadline is starting to loom, which is why we are dealing with it again.

What is kind of frustrating to this side of the House is that we agreed to extend the expiration of the Act earlier this year in order to provide a temporary measure in lieu of the alternative Government bill, which would have made these restrictions permanent. Of course, that bill has disappeared from the Order Paper. The member who has just resumed her seat did not even mention the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill, known in the regulatory impact statement as the redirection bill, because it has come off the Order Paper. It has been ditched. We agreed to have the temporary measure last enacted—and the member is on the select committee, so she must remember it—we agreed to do that, on the basis that that particular piece of legislation was going to have its first reading and be referred to the select committee. Well, it never came. It never had its first reading and it was never referred to the select committee. So, as a result, we agreed on the basis that the Minister of Justice had offered to negotiate with the Opposition spokesperson on justice—my colleague Charles Chauvel—and other members in this House over the content of the measure. Of course, she has failed to do so in good faith.

That is actually why we are opposing this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. It is about process, and I think the process is really important. I think that if people actually want to get legislative changes through this House, when there are areas upon which we can work together to achieve agreement, that is what we should seek to achieve, and that is what we sought to achieve. The Minister did not consult with us about the new bill that she had introduced, and then she did not consult about removing it from the Order Paper, and she did not consult about this amendment, either. I think that to turn this, the temporary measure, into the permanent fix actually does not solve the problem.

We have heard members opposite talk about victims of crime. If somebody is in prison and they are left a bequest and inherit a lot of money, it is not caught by this bill. If they win Lotto because somebody gives them a Lotto ticket for their birthday, it is not caught by this. The only thing caught by this is if their human rights are abused and they receive compensation from the Crown.

💬 Charles Chauvel: So perverse.

It is absolutely perverse, and I cannot believe that members of a National Government are happily standing up and saying that this legislation is good enough. It is not good enough. That is why we were prepared to work with the Government to find a real fix, which was about prisoners’ deriving income during the time that they are incarcerated, or deriving some benefit while they are incarcerated—not dependent on their having their human rights abused and having compensation paid to them by the Crown, but actually looking at the whole issue as to whether they should be able to be deprived of some element of what they gain while they are serving their sentence, so that the benefit of it can pass on to a victim, if the victim wants that compensation. I have spoken to victims of crime who do not want any money from anyone who has done to them what was done.

I want to also remind the House that regarding victims of crime, we talk about what it is that they want, and we are talking about whether the legislation is victim-centric or not. We had a meeting recently with the Sensible Sentencing Trust, and one of its members highlighted to us that there was a real concern about the lack of engagement with the Ministry of Justice and the Minister over some of the issues that are truly of concern to the victims of crime.

What the trust had discovered was that on the Ministry of Justice website is this incredible document that is essentially a literature review of all of the issues relating to adult victims of crime. Right at the end—and this is what the trust drew to our attention—it says: “Guiding principles for providing effective service and support to the victims of crime—A key aim of this report was to provide information on how best to support victims of crime. In reviewing the extensive range of research relevant to crime victimisation, a number of guiding principles emerge as important in delivering effective support and services to victims. These principles are applicable to all agencies, government and non-government, that work with victims of crime.” That is the advantage of actually looking at the international literature. Even our own literature supports this. This is what best practice actually informs Parliament about in terms of decision making, and this is actually what a victim-centric service provision looks like.

It says: “Respectful and confidential treatment: available research shows while outcomes are important to victims (eg, reparations, convictions), consistent with the concept of procedural justice, the manner in which victims are treated is more important.” That is what all of the evidence shows. “Individualised response/flexible services: there is strong evidence that people are affected differently by crime. Services allocated purely by crime type or victim type are likely to miss other victims with significant needs. Assessment must ensure individual needs are identified, and services need to be sufficiently flexible to provide individualised response. A range of service options should be offered so that individual preferences can be catered for.”

Then it talks about services being accessible: “Services can only assist victims if they are known to victims, victims are comfortable using them, and are available at the time and location when needed. Participation in the justice system can be important to victims and so must be accessible to them.” Therefore, it talks about services needing to be well advertised, and using publicity campaigns to ensure that victims are aware of their existence. “Certain services need to be available 24-hours (eg, crisis response)”. Well, we have just had to have an urgent intervention in Auckland because the crisis centre for sexual violence was about to close its doors at Christmas. That had to be addressed extremely urgently. “Services and access to justice need also to be available in rural and provincial areas …”. How often do we forget that these services are not just city-based in terms of that support? “Services and justice responses need to be culturally appropriate and accessible to those from different ethnic backgrounds … services and justice responses need to be sensitive to the needs of vulnerable populations and accessible to those with disabilities, younger victims, those living in socially and economically deprived areas.”

Then it talks about provision of the right information at the right time in the right format. How many times could you say that about a whole range of different areas that we should be addressing? “Delivered by experienced, knowledgable, well-trained, empathetic staff”, “Consistent high quality services and support”, “Integrated service provision”, “End-to-end individualised support”, and “Accountable services”.

Those are the things that the victims of crime are actually saying to Parliament that they would like to have delivered for them. I do not think that anyone can stand up in this House and say that the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill that we have before us in any way begins to address those particular needs. Labour members will be looking at the bill very carefully when it comes to the select committee. The reason we are not supporting it is that it is a bill that fails to actually address the core needs of victims that have been expressed to us and have been identified by the Ministry of Justice as being based on international best practice. The literature says so, and, as I say, the Sensible Sentencing Trust is asking us to look much more compassionately at these issues.

So I think it is a very disappointing piece of legislation. The Minister of Justice can do a lot better than this. I have to say, quite frankly, I am disappointed that effort has not been placed in this particular quarter where it should be.

I rise to take a call on this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill in its first reading. I would like to acknowledge and thank the Hon Lianne Dalziel. I do not have the history of the debate and the discussion over its previous course, but I do agree with the issues around support, having previously been part of support groups to help victims, especially victims of crime, especially our vulnerable, and especially our women and our children. The list she read out is definitely a list of the areas where concern and care are needed in support of them.

The Hon Phil Goff spoke about restorative justice, and I do have some experience in that. I would agree that this is an approach to justice that focuses on the needs of the victims and also the offenders, as well as the involved community, and I think we do not often talk about that when we talk about restorative justice. It is not just the victim and the offender; it is the whole of the community working collectively together. It ensures that the victims take an active role but also that the offenders are encouraged to take responsibility for their actions. That is absolutely important, and I think that is what is important.

What I am looking forward to is having the debate. As, again, I have not been part of this history previously, I would like to hear about these issues and I think there is some merit in some of the conversations we had as a select committee. I think that is important. I think the things we will be debating will be around, for instance, the Prisoners’ and Victims’ Claims Act 2005, which did respond to some of the concern that offenders should not receive compensation. I was fortunate to be on the Justice and Electoral Committee when we heard submissions on the Victims of Crime Reform Bill, and, yes, there was the Sensible Sentencing Trust—Garth McVicar and others—and what we heard really clearly there was that there is a need for balance in the system that does take into account the needs of the victim.

So I rise in support of the discussion in the first reading and also at the select committee for this bill. Thank you.

A split call?

💬 Dr Megan Woods: Yes, it is.

I call Dr Megan Woods.

Thank you, Mr Speaker—

💬 David Clendon: I raise a point of order, Mr Speaker. I am sorry to interrupt the member but our second speaker this evening is actually unwell and will not be here, so we are quite happy for Labour to take the whole call.

💬 Mr DEPUTY SPEAKER: OK, it is not a split call. The member may take a little more time.

Thank you, Mr Speaker. I am happy to take what was going to be a short call on this bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. My colleagues have traversed the reasons why Labour will not be supporting this bill, and the history of this bill, at some length. Indeed, many of my colleagues have been very involved in the history of this piece of legislation through the passage of this House and have a great deal of background to it.

The previous Labour speaker before me, the Hon Lianne Dalziel, pointed out very succinctly the reasons why it is that Labour is not supporting this piece of legislation. This is a piece of legislation that does not do what it set out to do. It is a disappointing piece of legislation and it does not achieve what it promised to do. It does not address those core needs of the victims that we as members of Parliament hear day after day from people and that we know exist. We are disappointed that this is a piece of legislation that does not address those. Put simply for us, this legislation is simply not good enough.

We have heard a great deal about how the original Act was a piece of legislation that was never intended to have the longevity that members opposite are attempting to give it, that it had, indeed, sunset clauses in it, which are being rolled over and over, and that this is just not adequate. What is more, we agreed to the last rollover to that legislation on the proviso that the Government was going to come and consult with Opposition members and that we could actually genuinely work together to try to get a piece of legislation that would address these very real needs, and these very important needs, in our society and in our communities. Again, we are disappointed—there is that word again—that Government members did not come and consult with Opposition members—

💬 Maggie Barry: You’re always disappointed.

Yes, Maggie Barry, we are often disappointed by the Government members opposite. We are very disappointed that they fail to deliver on what they are going to do, and that it is a Government of broken promises. Yes, we are very, very disappointed in that, Maggie Barry, and we are disappointed that this bill is not sufficiently victim-centric. We have an opportunity here, and we are not taking it. We do have an opportunity to actually do something that addresses these rights, and we have the Government members opposite standing there, and they are talking a great deal about victims’ rights. They are talking about the slogans that go around this. They have got a great deal of empty rhetoric around this.

If this was a Government that really cared about victims’ rights, would it be a Government that was prepared to let the burglary clearance rate languish at 25 percent with no movement in that figure? Seventy-five percent of burglaries remain unsolved. If we actually think about the constituents we talk about, the everyday people we talk with, and their experience of crime in this country, often for me in my electorate office in Wigram it is people coming in and talking about the devastation that a burglary has had on their life. They are talking about the way in which they do not feel safe in their homes, and they are talking about the way that they do not feel safe in their communities any more. If the Government really cared about the rights of victims and was going to back up its rhetoric that we are hearing opposite and was going to not be a disappointment, then we might actually see some movement in that figure. The 25 percent is just not good enough. Three-quarters of the people getting away with this most devastating of crimes is not good enough.

If this was a Government that really cared about the rights of victims and really fundamentally addressing these, let us have a look at some of the other things that it could do. There is a backlog of 900 jury trials in the Auckland and Manukau courts. The backlog is 900. That is in an area where you live and that you represent, Darien Fenton—900 people. That is 900 victims, that is 900 offenders, that is 900 witnesses, and that is 900 communities waiting for over 2 years to get justice. This is not a way to deliver fair outcomes to anyone involved in crime, let alone the victims.

This is again an example of a Government that is not committed to a victim-centric justice system. What it is doing is putting up legislation that does not adequately meet the mark on what it needs to do. The Government is putting up legislation that is not adequate for what it needs to achieve.

Labour believes that the best solution to stop compensation payments to inmates is to ensure that breaches do not occur in the first place. There are many very unfair aspects of this legislation that my colleagues have traversed at length—for example, the fact that if you get your money while you are in jail and you have got a victim waiting, or if you get your money through Lotto, or you get an inheritance from a family member, or if anyone leaves you some money in a will, then that money is not there. We have not heard in any of this debate in the House a Government member rise and tell us what is fair, what is just, and how this bill is doing adequate justice for victims and looking after their rights—the very thing that Government members are purporting that this bill has done.

Let us actually have a look at the reality of the situation. Since the enactment of the precursor to this legislation, there have actually been a low number of claims such as the one that triggered that original piece of legislation, if we actually look at the reality of the situation and what has been happening. We have not heard Government members actually address what the scale of the problem is here, what it is that they are seeking to address, and what it is that they are seeing to solve with this inadequate piece of legislation. The Labour Party minority view in the legislation that extended the sunset clause made it clear that we supported the extension of the sunset clause only to ensure that replacement legislation would be required and could be developed. We have not seen that through the passage of time.

The Justice and Electoral Committee when it heard the original piece of legislation for the extension of the Act received five submissions, and only one of those was in support. Submitters opposing the bill were primarily concerned about the human rights implications of the provisions in the original Act and bill. These are concerns that have not been adequately addressed. We do not have a Government that seems to be adequately concerned about prisoners’ and victims’ rights. We do not have a piece of legislation that is going to address a real need. We have a piece of legislation before us that does not do what it promised to do, and we have a piece of legislation that is a disappointment. For this reason Labour will not be supporting this bill.

On this subject I would like to start by reading out a quote in relation to this issue. It goes along like this: “Most people, including myself, have a deep sense that it is wrong that serious offenders can be awarded compensation for wrongful treatment without those offenders themselves being required to pay compensation to their victims for the serious wrongs inflicted upon them.” That quote is from the Hon Phil Goff from 14 December 2004. I want to ask the House and ask the Opposition what has changed in the view of the Opposition. I absolutely agree with what Phil Goff had to say back in 2004 when he first introduced the Prisoners’ and Victims’ Claims Bill, which ended up becoming the Act. The problem we have with the Opposition’s argument is that if we were to go along with what it is suggesting, and simply vote this piece of legislation, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, down, then on 1 July next year we would actually see that compensation scheme for victims being done away with. That would be an unacceptable position for this House to leave victims in.

The original Act responded to the concern that offenders should not receive compensation for wrongful treatment without first repaying the debt they owed to the people whom they harmed—the victims. This bill is about continuing that scheme because it is going to expire next year if nothing is done. Opposition members are arguing that they do not support this legislation, but they would see the very scheme that they themselves put in place in 2005 being done away with. That is unacceptable.

This Government has done a lot for victims. This Government campaigned in 2008 on supporting victims. The biggest change that has been made for victims has been the $50 offender levy. We have used that new levy to expand services to, and support of, victims of serious crimes and their families. More than 4,000 victims and their families have received extra support in the first year of that because we implemented a victims’ offender levy. This piece of legislation continues something that the Opposition started and put in place for a very good reason. It is important that it stays. The petulant attitude that says “We don’t like that the Government hasn’t worked with us. Therefore, we should vote this piece of legislation down.” is wrong and should not be an argument that is supported. I commend the bill to the House.