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 second time. Let me first extend my thanks to the Justice and Electoral Committee for its work on this bill. The committee received seven submissions on the bill and has recommended that it proceed without amendment.

The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill makes three main changes to the Prisoners’ and Victims’ Claims Act 2005. First, it repeals the sunset clauses in the Act so that the Act will no longer effectively expire. Second, it makes a small change in the civil limitation periods for victim claims, for their benefit. Third, it clarifies that the Act applies to unlawful detention claims. The Prisoners’ and Victims’ Claims Act 2005 provides for awards of financial compensation to be made to prisoners only in extraordinary circumstances where no other remedy is deemed appropriate. Prisoners are also required to make use of the existing complaint mechanisms that are available to them, before they seek compensation through the courts. If financial compensation is awarded to a prisoner, or if a settlement agreement is entered into, the Act requires that deductions are made to pay any legal aid debt in relation to the claim, any outstanding reparation, and any earlier orders in favour of victims. The Act then allows victims of the prisoners to claim against the money through a simplified victims’ claims process.

Without this bill the Act would effectively expire. The statutory guidelines and restrictions on awarding compensation and deductions and the simplified victims’ claims process would no longer apply to prisoners’ claims lodged from 1 July 2013.

The bill will ensure that the judiciary has clear guidance on the circumstances in which Parliament intends that compensation should be available to prisoners. This will avoid any potential inconsistency. The bill will also ensure that victims continue to have first claim against any such compensation awards to prisoners.

The Act responded to community concerns that offenders should not receive financial compensation for wrongful treatment without first having to redress the harm that they themselves have caused to victims. The simplified victims’ claims process does not create any new rights for victims to bring claims. The victims always have the option of bringing a civil claim against their offenders. However, the victims’ claims process provides an easy and cost-effective way for them to do so in circumstances where the prisoner has the means to pay at least some of the damages due to the victim and while the Crown has control of that money. The bill also ensures that victims will not be disadvantaged by any administrative delays that stop the clock on the civil limitation period for victims’ claims while the Ministry of Justice assesses the level of deductions to be made, such as for legal aid payments, and, where necessary, resolves disputes about these amounts.

Finally, the bill 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. It always has been the intent and practice that unlawful detention claims, like other breaches of prisoners’ rights, be subject to the Act. The best way to prevent compensation payments is to ensure that abuse does not occur. Prison mistreatment will not and should not be tolerated.

I would like to reiterate that the Government has great confidence in the ongoing integrity and professionalism of corrections staff working in New Zealand prisons. However, if breaches do occur, it is important that we have a fair and appropriate regime that balances the rights of prisoners and their victims. This bill provides for the continuation of that regime. I commend the bill to the House.

I appreciate the opportunity to speak on the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. This legislation had its genesis in the previous Labour Government. It was a response to a very precise, very confined situation where a group of prisoners, because of the way they had been treated by the prison system, made a claim under the New Zealand Bill of Rights Act under the precedent case—the Baigent case—and, as a consequence of that, were awarded damages. These were criminals who had committed crimes of a very serious nature, and they were criminals whose victims would not at the time of the trial and conviction of those prisoners have ever thought that there was any value in pursuing a civil claim against those prisoners. They had no claim for personal injury, but they might have had a claim for exemplary damages for their conduct.

That has always been the nature of our criminal justice system and the victims of it. But that was a different situation, where prisoners had won significant damages as a consequence of what had happened to them while they were incarcerated. It was simply repugnant to the community’s notion of justice that people who had inflicted considerable harm and injury on other citizens should, because of the circumstances of their incarceration, achieve a windfall gain, whereas their victims got nothing apart from their entitlements from the accident compensation scheme and any other State-funded assistance they got. So it was absolutely correct for the Government of the day to pass legislation to correct that obvious injustice.

None of that is to say—as I think the Associate Minister of Justice said in his opening speech—that we do not strive to ensure that our corrections system, our system of incarceration, is one that does not lead to abuse of those who are being incarcerated, those who are in the Crown’s custody serving out a punishment. We must do that, but it would be wrong for those who are harmed by the Crown in the course of being penalised by the Crown to then gain a windfall, when citizens who are the victims of those who gained that windfall should have no claim at all. I have no personal difficulty with a regime that provides a greater sense of justice for victims and a signal to all other citizens that the person who has caused a victim harm, damage, or death should not be the beneficiary of some greater claim in the future.

So this law was very important, and it was very important that it should spell out that the courts require that in the event of a future claim by prisoners who are claiming abuse in the prison system, they should exhaust other sources of remedy. They should go to the Ombudsman or they should go to the system within the Department of Corrections and utilise those forums before they seek redress in the courts. It is also right that we should ensure that we have an effective mechanism to ensure that any abuse of power in prisons is properly redressed. If there are concerns about the existing regime that we have, then let us hear those concerns and let us consider what may need to be done. It is only part of our obligations as an international citizen that we ensure that those who are incarcerated by the State are not subject to abuse and torture.

Having said all that—and we will support this legislation—I want to place on record our concerns, and the first is that the original legislation was time limited. It was assumed that there would be, and it was intended that there would be, a review of the sort of regime that would deal with victims’ rights and with what happens to prisoners—but, most important, with victims’ rights. Indeed, in one of the more recent renewals of the legislation, of the continuations of it, an undertaking was given by the Government of the day—this Government—that there would be a review and that other parties would be consulted on it. I have to say—and it may not be the fault of the Hon Chester Borrows, who moved the second reading motion—that the reality is that none of that happened. There has been no consultation with other parties and there has been no review. So we are now stuck with a piece of legislation that was designed to deal with a specific situation, a specific injustice perceived by the community, which raised issues about the broader justice system but, most important, raised issues about our system, our regime, of victims’ rights. That work still remains to be done to ensure that we have a system of victims’ rights that is robust and that respects the various positions and standings of the parties concerned.

There are some alternatives. There are some who argue that the provisions in this bill should be extended to any windfall gain that a prisoner gets, whether it is a bequest as a result of a family member’s death, a win in Lotto—although quite how a prisoner incarcerated at the time could buy Lotto tickets defies explanation to me—or any other windfall gain. I do not go that far, but what I do say is that a more progressive and comprehensive system of justice that is looking firmly at victims’ rights might say that there are different ways of approaching it, and that redress can be provided to victims once a penal sentence has been served.

In most cases, in the majority of cases, prisoners—those who are doing serious time—will get to a point where they have done their last penal servitude and they get released. Because of a progressively changing corrections system, we are now getting people back in the community without recidivism. They do not repeat their crimes. It is not too much to say of those who have caused significant harm and damage to others that they may have an ongoing responsibility through their future earnings to provide support and assistance to those to whom they have caused that harm. I do not think it is beyond the realms of a broader system of justice to look at something along those lines. There may be a trade-off in the length of sentences if, indeed, somebody, having served a sentence, goes into paid work and as part of their contribution to the community makes amends for the harm they have done and has a further surcharge on their earnings to make good the damage they have done to their victims. I do not think it is beyond us to do that. That would be fair. It could be considered at the time a judge is considering the sentence. It is a matter that could be followed up and could continue to be administered by either the corrections system or, indeed, the Inland Revenue Department—on which we are about to spend $1.5 billion on a computer system that should be able to handle at least that.

We support this legislation because it continues its confined approach to a confined problem, but it does not answer the real problem, which is a broader answer to the need for a comprehensive regime, a cohesive regime, of victims’ rights in order to compensate those victims who have suffered harm beyond personal injury, which is compensated for through our accident compensation scheme, and who have suffered other harm and damages as well that ought properly to be compensated for. Leaving in place this system makes that a lottery, because the victim can recover compensation only if the perpetrator of the crime or violence against them is somebody who suffers their own violence in prison at the hands of the prison system. That, as we know, does not happen to every prisoner. It happens to a very small percentage of them—in fact, a very small number, as was evidenced in the particular case that triggered this legislation, the Taunoa case.

We do not want a victims’ rights regime that is essentially a lottery system; we need one that is based on coherent and considered thought. Coherent and considered thought has not gone into this legislation. It is simply being rolled over, with some clarifying amendments. It does not address the fundamental problem. That was the undertaking given by this Government when it rolled this legislation over the last time. It has not fulfilled that undertaking. Even though this is an open-ended piece of legislation now, I prevail upon this Government and the Minister, who is in the House, to take seriously the wish from all sides of the House to get and have in place a sensible system of victims’ rights, in order to put to bed once and for all the repeated claims of injustice being suffered by victims. Notwithstanding all that, we will support the bill.

It is a pleasure to stand and take a brief call in support of this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill in its second reading. At the outset I would like to acknowledge the support from the previous speaker, Andrew Little, on behalf of the Labour Party, which is going to support this good piece of legislation. Of course, the purpose of this bill is to make the restrictions on awards of compensation and the victims’ claims process in the principal Prisoners’ and Victims’ Claims Act 2005 permanent. As Andrew Little said, it is—and I am sure he did not mean to make a pun—a confined solution to a confined problem, and it is a good solution.

Mr Little talked a little about the—I did not mean that. I did not mean that, actually; it is early in the morning. Mr Little did say in his presentation that a review should have taken place. Well, of course, there is not much need for a review when a system and a piece of legislation are working very well. The Government, I am very pleased to say, is satisfied that this scheme is working well. The scheme represents our commitment to victims and the focus upon victims, who are, of course, participants in our criminal justice system completely as a result of other people’s actions and not their own.

This is a Government that I am part of, and we are committed to ensuring that victims are supported and the scheme that we are supporting today achieves that endeavour. We make no apology at all for focusing our justice system on the rights of victims. It is right and appropriate that we should do that. As chairman of the Justice and Electoral Committee I was very pleased with the way the committee worked through our deliberations on this bill. The committee received seven submissions and recommended that the bill proceed without amendment. I speak in support of the bill. It is a good bill. I commend it to the House.

I rise to take a call on the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. There was an unfortunate complacency, I think, in Mr Simpson’s speech when he said that the scheme was working well and is looking after victims. I beg to differ. I beg to differ from the perspective of one who introduced this legislation in the first place and had it legislated through Parliament.

The reason I put a sunset clause in the legislation back in 2005 was that I wanted to review the scheme to see that it was doing much more than just being a stopgap measure against windfall profits arising out of the Taunoa case. I wanted to be sure that victims were properly compensated by those who offended against them horrendously when the criminal offender was in a position to provide that compensation. As it works out, the legislation probably had a prohibitive effect in terms of some gold-mining lawyers on behalf of some really hard-core criminals, but it has not raised a lot of money for victims. I think it was about $45,000, from memory.

There seemed to me to be a lot of people—not just the vicious blue-collar criminals who were never compensating their victims, but another whole category of criminals. These, Mr Simpson, are the people the National Party knows better—the rich and the powerful, the reckless and the greedy. [Interruption] They are the white-collar criminals—Tau Henare knows exactly whom I am talking about—who rip off people’s life-savings. The member will have, as I have in my electorate, people who have lost their entire life-savings because of the greed and the recklessness and the criminality of people who might have gone to King’s College, who have big houses on Paritai Drive, and who have all the privileges in life but are criminals nevertheless.

I say that when those rich and powerful and privileged criminals rip off people of their life-savings, you cannot just put them in jail for 2 years, allow them to protect their savings in family trusts, and then let them come out of jail and get on with their high lifestyles while their victims go to their graves penniless because they ripped them off.

I say that absolutely nothing in this legislation addresses that class of criminal—absolutely nothing. And yet we have seen, in the last 5 years, time and again, people like Petricevic, or whatever his name is—he ripped off people in the 1980s, and ripped them off again in the 21st century—who get out of jail after a while and are living the high lifestyle. They stole not bits and pieces out of houses like burglars do; they stole hundreds of millions of dollars. They did not steal because they were underprivileged; they stole because they were greedy—

💬 Hon Anne Tolley: What did your Government do while it was happening? Sat there and twiddled their thumbs.

—and yet they get away with a situation where they never pay their dues, Minister. They never pay their dues to society. The reason that I put a sunset clause in the legislation was not simply to stop windfall gains for people who are rotten criminals who never gave any compensation to their victims. That is why I did it in the first instance, but I put the review clause in to ensure—

💬 Hon Anne Tolley: That Labour Government did nothing—watched it happen.

Look, I hope the Minister will take a call to explain herself and justify herself, because the sunset clause was there so there would be a review, so that you, Minister—

The ASSISTANT SPEAKER (H V Ross Robertson): Order! I am sorry to interrupt the honourable member. There are interjections taking place between members who do not have the call, and that is out of order. I know Mr Goff is making a strong, robust speech, but that does not mean that members from this side and that side can interject on each other. If you want to interject on Mr Goff, that is fine, but not on each other.

It is really sad that over these debates, time and again, members on the Government side fail to take a call and do not show the “intestitudinal” fortitude—I think that is a word for guts—to get up and debate the bill, but they will sit in their seats and interject continually. What I am saying to the Minister who was interjecting is that the sunset clause was for a review so that we could see how we could get this legislation working better for victims.

The legislation has expired a number of times. Did the Government ever use the opportunity to be imaginative, to show its commitment and its determination to support the rights of victims by getting a piece of legislation that dealt not with a tiny minority of cases in prison—cases where the corrections department got it wrong and was forced to pay compensation—but with the wider spectrum of criminal offenders who never set things right for their victims? I am a strong believer in restorative justice. What restorative justice means is that the offender sets things right for the victims. My colleague next to me, Mr Sio, knows the system of ifoga in Samoa, which is based on a person showing remorse and trying to put things right for the victim.

💬 Peseta Sam Lotu-Iiga: Say sorry for breaking the law.

Mr Lotu-Iiga will know that system. He should know about it. In terms of restorative justice, it is really important that the offender shows remorse—genuine remorse—but that is not very concrete. What is concrete is whether the offender is able to make a reparation payment. It is too often the case with our offenders that they come from dysfunctional backgrounds, they have no savings, and they have no income. When they are locked up in prison, they have no ability to pay, and in most cases victims get nothing back from their offenders. That is a fact of life. You cannot get blood out of a stone.

What you can do if there is a windfall profit by an offender, such as through the compensation cases that followed Taunoa, and if they have got money, is you can get it and you can give to the victim. Or if somebody wins Lotto in prison—you know, they are sitting on a million dollars and they have done grievous damage to their victims—then they should be required to make a payment when they are able to. That is common sense. That is justice in the real meaning of the word.

The reason why I focused before on the white-collar offender was that after the global financial crisis, which revealed the recklessness and the greed of those white-collar offenders, a number of them have ended up in prison, and they are the very people who could be required to make compensation, maybe not at the time they are in prison but thereafter.

There are people who were in prison in the 1980s and who are now very wealthy businessmen again. Have they ever done anything to set things right for their victims? The answer is no. They are back sipping their cocktails, living in their mansions, driving their flash cars, when they have driven other people into poverty at the end of their lives. I resent that. I deeply resent that. I resent it because I have represented constituents who have been placed in that situation—worked hard all their lives to get their savings, and maybe somewhat naively put their money in particular institutions that were not sufficiently blue-chip. But they did it in good faith. They believed the promises that were made. They had their savings ripped off, and the people who did it to them never paid their dues. Although we will support this legislation reluctantly because those who get windfall profits in one way—

💬 Scott Simpson: After all that?

No, Mr Simpson, you should have listened. That is one of your problems as a new member. You have not learnt to listen yet. The Government could have done more than simply raise $45,000 for victims. It could have raised tens of millions of dollars to be paid back to victims if it had been imaginative in the sort of legislation it put through. It could have got those white-collar criminals who ripped off their fellow citizens to pay their dues. It could have got them to indulge in restorative justice and set things right for those who have suffered.

So my objection to this legislation is that it does not go anywhere near far enough. It is faint-hearted. It lacks imagination. Members on that side of the House do not live up to the rhetoric they use on the campaign trail when they say that they stand up for victims. This legislation does nothing for most victims.

💬 Hon Trevor Mallard: It’s weak.

It is weak. It does not do what the Government could have done if there had been a proper review, if it had worked through the options, and if it had got its officials working hard in the 4 years that it has had in Government to actually put something in place that would see a far wider extension of looking after the victims, ensuring restorative justice, and ensuring that people who rip off others are required to put things right when they are in the position to do so. On all of those measures, this legislation fails, and that is why every member of the Government has got their head down at the moment, because they know the truth of what I am saying. This is weak legislation. It could have been much better.

It is a little bit like Groundhog Day. There is a very strong sense of déjà vu in yet again standing to speak to prisoner and victim matters and the latest iteration of this legislation, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. We have had a—

💬 Hon Trevor Mallard: And it’s got yesterday’s date on the wall.

Indeed it has, yes. That will be part of the problem, I am sure. The principal piece of legislation was first put into place in 2005 as a stopgap measure, as a response to the political necessities of the time, perhaps, in order to endeavour to placate, perhaps, a very rowdy minority in the public who were objecting to some of the actions that were being taken. Mr Goff just spoke, and I must say I am somewhat puzzled to hear such powerful objections to this legislation from the Labour side. I look forward to those members switching their vote and actually opposing this legislation in line with the speeches they are making. This legislation has not worked. It has not been effective in returning value to victims, and, fundamentally, it denies human rights. It is an abrogation of human rights. It is not acceptable in a country that, as we have heard this morning, rates very highly in terms of our commitment to the rule of law, and where we rate ourselves as being a country where corruption is not seen and where we respect and honour everybody’s human rights. This legislation is an offence to that, and we will continue to oppose it.

The fundamental intention of this legislation is to deny restitution to people whose human rights, whose basic rights, may be abused while they are in the custody of the State. We have seen instances of that where, indeed, prisoners and inmates were actually tortured over extended periods under the behaviour management regime that led to the Taunoa proceedings. The court found very clearly and made very strong rulings that the treatment of those men was absolutely unacceptable in a country that calls itself civilised and a country that commits to human rights. It is unacceptable, and this legislation is equally unacceptable.

I think that the notion that the public was demanding that prisoners, inmates, and people who have offended ought not to receive any restitution is not based on particularly strong evidence. It is clear that there was a very punitive approach in the air in the mid-2000s, and to some extent that still prevails, but you have to scratch only an inch below the surface in talking to members of the public, in talking to NGOs, and reading the public pulse. People are more intelligent than that. They understand that people do not lose their human rights simply because they have offended and because they have been imprisoned. If we are truly committed to that, then everybody should be entitled to restitution if their rights are abused while they are probably the most vulnerable people in our society, those who are in the custody and the care—I use the word loosely—of the State.

Mr Borrows, the Associate Minister of Justice, in introducing this second reading pointed out that we have a solution available to us. If we do not want to see inmates receiving compensation for abuse, let us create an environment where those abuses will not occur. It really is as simple as that. We do not need this particularly vicious piece of legislation; we simply need to ensure that our prison system is run in a humane manner, that it is run in a just manner, that human rights are respected and maintained, and that even minor transgressions of human rights are not accepted, so that this sort of legislation need never be triggered. It is not beyond our wit to create a corrections system where prisoners’ rights are protected and maintained.

I have to acknowledge that there is some good work being done in the corrections system and the corrections area. The new Chief Executive Officer of the Department of Corrections, Ray Smith—not so new now—is working very hard to change the culture, and he is having some success in that. But he is trying to steer a very cumbersome, very complex, very slow-moving vessel, trying to take it to a better place, and we are nowhere near there yet, I would have to say.

I think we need only look at some recent examples. A senior corrections officer is quoted today in one of the papers—I think the Dominion Post—as saying that the management of maximum-security prisoners is constantly evolving to better assist prisoners towards a crime-free future. I am afraid that that is rather an idealistic and simply an unsustainable proposition, given, for example, what is currently happening in D Block, the maximum-security block at Pāremoremo, at Auckland prison, where for a period of some 3 months, over this very hot summer we have had, prisoners in the maximum-security block were denied outdoor exercise. For 3 months those men did not get in the fresh air, did not get sunshine on them. Imagine what that does to people’s mental and physical health—being denied for over 3 months that minimum requirement of simply 1 hour in the fresh air. That is completely unacceptable. What is that going to do to their attitude, to their level of tension, the level of stress within that already fairly volatile environment that is a maximum-security wing?

As we speak, for the last 6 or 8 weeks, prisoners in D Block have been washing their clothes in buckets because the laundry facilities have been removed and have not yet been replaced with new laundry facilities. If they send their laundry to other wings, only half of it comes back. That has been confirmed by the acting manager of the prison. They do not have that fundamental, very basic, and simple assurance that their personal property will actually be secure and returned to them. As a result, we had an entirely unsatisfactory situation where prisoners were endeavouring to clean their clothes and their bedding in buckets of water without so much as soap or soap powder being issued to them. That is an unacceptable situation in the 21st century.

Are we trying to stir up more stress in our prisons? Are we trying to increase the frustration levels of these already volatile men by depriving them of those basic human dignities of clean laundry and a breath of fresh air for 1 hour out of every 24 hours? Are we deliberately trying to create situations where we will get outbursts of violence in our prisons? Mr Kim Workman, who made submissions to the Justice and Electoral Committee in February this year—a man with an extraordinary depth and range of knowledge about our prison systems—made the point that prisons will be made safe when prisoners observe that they are being treated fairly and decently.

Anybody who believes that our prisons are holiday camps clearly has never been inside one. Prisoners do not expect to be coddled. They know they are not there to enjoy themselves. They accept that. But prisoners also know what is reasonable, what is fair, what the minimum legal requirements are, and what the minimum requirements are in terms of human rights. And we are not meeting those requirements. A safe prison is one where prisoners feel that at least their basic humanity is recognised, that they are being treated fairly. That environment becomes safe.

Mr Workman went on—and I am paraphrasing him here; I am not quoting him directly—to make the point that we have a very poor culture and a very poor environment historically in our prisons, and one day if we do not do something to do better, our prisons will blow up and we will not know what struck us. We are seeing already expressions of that. Over the last 12 to 18 months there have been five or six quite serious incidents in our prisons, at Rangipō prison, at Hawke’s Bay Regional Prison, at Pāremoremo prison. These are becoming quite commonplace. The Department of Corrections’ response to the latest at Rangipō prison, for example, was to actually deny that it was a riot, despite the fact that 11 men were involved and 11 men were relocated. We are seeing these constant incidents, quite serious incidents, occurring in large part because we are failing to create a safe and humane environment in our prisons.

The legislation that is being advanced today embeds this extraordinary proposition that prisoners should not be eligible for restitution if the State violates their human rights, even to the extent of physical abuse and torture—nevertheless, prisoners ought not to receive compensation for that. This legislation that we are making permanent today does nothing to make our prisons safer. It will do virtually nothing to protect or enhance the rights of victims. We need to have a comprehensive review of how we can assure that victims of crime in New Zealand are treated as well as we can treat them, that the offence against them is made good, and that the emotional, the physical, and the mental trauma they suffer is remedied to the extent that we can do that. This legislation does nothing. It is silent on that. There is no means in this legislation to protect victims beyond the most superficial, perhaps, way that could be possibly imagined.

We need, as was promised and intended in 2005, to look at the rights of victims, remembering also that many of our offenders, many of the people in our prisons, are themselves offended against. That cycle of being the victim and being the offender is one we need to break. We need to address that, and we can do that by intervening intelligently, humanely, and thoughtfully. Kia ora.

I stand a little concerned at that last speech by the member from the Green Party because what it is telling ordinary New Zealanders is that all we have heard over the last 5 minutes or so is about the rights of the prisoners and not about the rights of the victims. We all know that incarceration on its own is not enough to deal with the issues of recidivist offending. But what we do know in this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill is that there needs to be a balance.

If the previous speaker knew the intent of restorative justice, it is about balancing the rights and the responsibilities of both the victims and the offenders, and that is exactly what this bill is intending to do. It is taking responsibility for the things that have been offended. The previous speaker, Mr Clendon, talked about how many of us may not have been in prison. Well, I have been in prison. I know that many of my colleagues have been there to see—

💬 Hon Phil Goff: What did you do?

In prison to visit, may I qualify that statement, to visit—to visit. I actually was taking some pastoral care there. In helping to support, I understand the issues of those who are in that situation.

💬 Hon Member: Go back.

What this bill is trying to do—yes, I will go back to the point that I want to make. I want also to commend Mr Little, who said a lot about the balance in this bill. That is what this bill is intending to do. I commend this bill. It is taking a balance between the rights of the victims but also the responsibility of the offenders. That is what this bill is intending to do. I commend this bill. It is a good bill. I commend the chair of the Justice and Electoral Committee. It is a small bill, but it is powerful. It is a little, but it is a lot. Thank you. I commend this bill to the House.

The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill 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. The restrictions upon the award of compensation to prisoners by the court and the process by which a prisoner’s victims can claim from an award are now to be made permanent.

I am pleased to be able to say that the Justice and Electoral Committee has conducted a rigorous examination of the bill as introduced, and New Zealand First is pleased to see that a number of needed changes have been made.

The principles that New Zealand First considered in relation to this legislation—and many submitters have covered these too—included, firstly, that being a prisoner means being penalised only by the temporary removal of personal liberty and by incarceration. It does not mean anything more than that. Prisoners must have the opportunity for rehabilitation, education, and reorientation in the direction of their life if that is at all achievable. Secondly, it does not result in the loss of other rights. That means that it does not result in the loss of the right to compensation for genuine injury or disability from genuine accidents, because they can happen in prison just as easily as they can happen anywhere else. It does not mean the loss of the right to compensation for significant mistreatment should that occur. I agree with my friend Mr Clendon, who pointed out some of those sorts of circumstances.

I also took Kim Workman’s submission very seriously because he did make a very important submission to the committee. He said that we should take into account the need for a good prison culture and that good process encourages good behaviour inside and outside prison, and will lead to fewer assaults within the prison, fewer suicides, and so on—generally better behaviour by prisoners. He also said that vexatious claims were few in number—and I agree—and that other prisoners dislike troublemakers and have their own effect in suppressing vexatious claims. So those things also need to be taken into account.

On the other hand, the rights protected in this way must be balanced against the fact that there is concern in the community that some prisoners abuse some of those rights, especially the right to compensation for mistreatment and especially in regard to accident compensation. Those are genuinely held concerns, as we heard in the submission process. We must give proper attention to them even if cases of abuse of rights by prisoners are rare. We certainly should not mollycoddle prisoners and we should make sure that there are no rorts like those we have seen in recent times by a few prisoners.

New Zealand First accepts that there is a need also for an accessible process for the victims of a prisoner to be provided for claims against any award made to a prisoner. That is the fundamental purpose of this legislation. We think that victims’ rights have been seen almost as second-class rights for far too long. This bill pays proper attention to that, and creates a clear right and an easily accessible process for a victim to claim against an award made to a prisoner. That achieves an appropriate balance that protects the rights of prisoners on the one hand and also meets community expectations that prisoners’ compensation be accessible to their victims to meet the properly awarded claims made by those victims.

The Government, I understand, originally wanted a fund to hold the proceeds of all compensation awarded for victims, who would then have the right to claim against it. But that was clearly impracticable and has been replaced by the better provisions now in the bill for a victim to claim against an award made to the prisoner who committed a crime against that victim.

Some submitters have also said that the courts had pre-empted this bill in the Taunoa v Attorney-General case and that therefore the bill is not needed at all. They thought that codification of restrictions on claims made by prisoners may mean that the law would not be developed or refined further. However, against that, codification provides certainty and consistency in the law. Parliament does need to set out what the scope for claims made by prisoners should be, and it does not mean that the courts may not develop the law within the scope of the Act. Again, the Kim Workman submission was very relevant. He pointed out that codification helps both prisoners and victims to understand their rights. So, on balance, I believe that it is right that this process and these rights should now be codified.

Section 13(1) of the principal Act sets out the essence of these issues. It says: “No court or tribunal may, … award any compensation … unless satisfied that—(a) the plaintiff has made reasonable use of all of the specified internal and external complaints mechanisms reasonably available to him or her to complain about the act or omission on which the claim is based, but has not obtained in relation to that act or omission redress that the court or Tribunal considers effective; and (b) another remedy, … cannot provide, … redress that the court or Tribunal considers effective.”

I think that is the essence of the issue, but, of course, there needs to be some guidance as to how that is assessed, and section 14 provides for that. Amongst other things, it says that the considerations are “the extent … to which the plaintiff, … took, within a reasonable time, all reasonably practicable steps to mitigate loss or damage” and also “whether the defendant’s breach of, or interference with, the right concerned was deliberate or in bad faith; … the relevant conduct of the plaintiff;”—the prisoner, in other words—“… the consequences for the plaintiff of the breach, … the freedoms, interests, liberties, principles, or values recognised and protected by the right concerned; and”—importantly, I think—“… any need to emphasise the importance of, or deter other breaches of or other interferences with, the right concerned;”. That is where I thought the Kim Workman submission was very appropriate. It goes on to give other considerations, which include “the extent … to which effective redress in relation to that act or omission has been, or could be, provided otherwise than by compensation;”—again, an important issue.

So, taking all that into account, New Zealand First considers that the bill now achieves the correct balance that I have spoken of and that prisoners’ rights will be preserved but will be appropriately restricted in the claims that they bring. More important, and finally, the victims of crime will have a clear right and process to make claims against any award that the committer of the crime against them has received, and that is as it should be. The victim should have the first claim against that money. The prisoner who committed a crime can only expect that he or she must first compensate the victim before benefiting from any compensation themselves. So for all those reasons New Zealand First will vote for the bill.

Thank you for the opportunity to take a very short and succinct call to support the second reading of the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. Actually, following on from Denis O’Rourke, the New Zealand First speaker, it was refreshing to see that he used the word “victim” far more than the Green speaker, who did not, I believe, use the word “victim” at all, but seemed to concentrate mainly on the rights of prisoners.

This is actually about having a fair and balanced system. It is just making the current regime permanent. It is putting victims at the heart of the justice system. It has stronger emphasis on victims, not prisoners, but it is a balance between the rights of offenders and the rights of victims. It is not removing the rights of offenders, but it is putting victims at the heart of our justice system. They are the ones who have been harmed by the actions of the offenders, and it is only right that we should have a justice system focusing on the rights of victims. This is a good bill. It is the right balance, and I commend the bill to the House.

I rise to speak in relation to the Prisoners’ and Victim’s Claims (Continuation and Reform) Amendment Bill. I am afraid I cannot repeat the enthusiasm of the previous National Party speaker, Kate Wilkinson, on this particular piece of legislation. The reason that I do not feel enthusiastic about our position, which is to support the passage of the bill, is that in so doing, in actual fact, we are allowing a piece of legislation to go through when the real issue has not been addressed, and the real issue is the rights of victims. During a select committee hearing there was a very powerful presentation from the Sensible Sentencing Trust. It was very interesting. I have, on occasions, clashed with members of the Sensible Sentencing Trust on some issues where I am regarded as being somewhat soft on crime, perhaps, but I think that its submission was compelling. Why it was compelling was that it actually raised a whole lot of questions around where the Ministry of Justice was up to as far as victims’ rights went.

Part of the sunset provisions that went with the original legislation, which has had to be reinstated once—and, in fact, there was a reinstatement bill for a further sunsetted provision when it was replaced with this bill that we are now dealing with. There were two reasons for that. One was to make sure that there was put in place a good process for ensuring that prisoners’ rights were upheld. We are signatories to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, after all, and the Ombudsman did come to the select committee and tell us that there are issues around cruel and inhumane treatment of prisoners. The submitters talked about unlawful detention, they talked about unlawful strip-searching, and they talked about inappropriate placement on segregation, resulting in isolation and the removal of minimum entitlements. Nobody wants to see prisoners treated in that way when they are in prison. No matter what they have gone to prison for, their punishment is their imprisonment; it is not the way that they are treated while they are in prison, and they are entitled to be treated with dignity and respect.

However, the victims of crime are also entitled to be treated with dignity and respect, and here are the “Guiding principles for providing effective service and support to victims of crime” that they brought to our attention: “Respectful and confidential treatment: … Individualised response / flexible services: … Services are accessible: … Provision of ‘right information at the right time in the right format’: … Delivered by experienced, knowledgable, well-trained, empathetic staff: … Consistent high quality services and support: … Integrated service provision: … End-to-end individualised support: … Accountable services:”. Where do you think they got that from? Do you think that that was a charter that they wrote themselves? Because it certainly looks like a victims’ charter to me. Where they got that from was the Ministry of Justice website. It was a report commissioned by the Ministry of Justice, Victims of crime in the adult criminal justice system: A stocktake of the literature. In fact, after an extensive range of research relevant to crime victimisation, the expert who provided this report to the ministry identified a number of guiding principles that emerged as important in delivering effective support and services to victims.

This bill does nothing to advance any of those. That is why it is with some disappointment that we see it being enacted, but we are supporting it because the balance has to be there, and, on this occasion, the balance requires us to vote for the bill.

I am pleased to be speaking to the second reading of the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. The purpose of this bill is to make the restriction on awards of compensation in the victims’ claim process in the principal 2005 Act permanent. The 2005 Act was due to expire at the end of June last year, and an interim bill was introduced to cover a further year from 1 July 2012 to 30 June this year. This bill will now make the 2005 Act regime permanent. It is a balanced bill, as we have heard before. It balances the rights of victims with the responsibilities of offenders. It is a good bill and I commend it to the House.

I understand the next call is a split call.

It is. Thank you very much, Mr Assistant Speaker, for the chance to speak to the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. As my colleague the Hon Lianne Dalziel stated at the end of her speech, this is a bill that we will support, but it is with some considerable amount of reservation. We are supporting it because in essence it is a continuation of a piece of legislation that the Hon Phil Goff saw through this House in 2005. My colleague Andrew Little said it was a measure taken because of community unease at what had happened in a particular case where a prisoner had got some compensation and that should have been passed on to the victim of his crime. At the time the then Minister of Justice, Phil Goff, said that most people believe it is wrong that offenders should be compensated for wrongful treatment but in turn are not required to pay restitution to the victims they harmed. Good words—from a very good member of Parliament, I should add. But I think this goes to the very heart of the Kiwi sense of a fair go, in that if you get ripped off and someone has the ability to compensate you, then you should get that compensation.

But our reservation with this bill comes around a commitment made by the Government to consult the rest of Parliament and to have a review around the functionality of this legislation. This bill that is before us now basically makes permanent the sunset clause that has been rolled over, I think, three times since the 2005 legislation was enacted. The purpose of that sunset clause, as Mr Goff has mentioned, was to ensure that there was a review to make sure that this system has been working. The member from the Government side of the House Alfred Ngaro said that there was a balance to this piece of legislation, and in a very narrow sense that might be true. But in a broader sense, as Mr Goff has said, to see whether this sense of fairness across the board is working we believe that a review should be taken of cases where not just victims of mistreatment in prisons were getting some meaningful gain but also other prisoners who were being incarcerated had the ability to compensate. As I said before, if someone rips you off and you have the ability to be compensated by them, then you should get that compensation.

So we believe that there should have been a review. We understood that the Government was going to undertake a review. I believe that the last time the sunset clause was pushed out by another year or so we were told that there was going to be a period of consultation, when we could talk about what would be captured in that review. As Mr Goff said, in that review we would have liked to look at the issue where some people who have dallied in white-collar crime have been able to sit on rather large amounts of money while their victims are looking at their bank accounts and their life-savings and seeing very little there, and whether or not that should be captured by this bill in terms of being able to get them compensation. It is absolutely unfair and a break of a commitment from the Government to say that a review should not be held for the benefit of those people who are looking at this and saying: “If they can get compensation, why can’t we get compensation when someone has ripped us off and is sitting on a huge nest egg? We can’t get our hands on it.”

Why cannot the Government, in this piece of legislation, be true to its promise about caring about victims of crime—whatever crime it may be, whether it be an act against the person or an act against their bank accounts—hold a review, and broaden the scope around the victims’ rights and their ability for compensation? We have seen that that has not happened. It should happen, it is a break of a commitment, and, although we support this legislation, we do it with reservation because the Government says it is on the side of victims but in this case it has not been.

I rise to add another voice in opposition to this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill on behalf of the Green Party. We are not supporting this bill, because we have a sense of justice and a belief in human rights, and we believe that victims’ rights are absolutely critical regardless of whether they are in or out of prison.

I would also like to just remind this House, as have many others before me, of the intended review that has never happened. If this Government was truly interested in victims’ rights, then that review would have happened and we would have had legislation that evolved out of a review that was evidence-based and considered the actual needs of victims and what would make a difference to them. This legislation does nothing towards actually addressing the needs of victims.

We have heard about the gaps in terms of white-collar crime and recompense to victims. That point has been made very eloquently, I think, by my Labour colleagues, but I would also like to draw to the attention of this House the work that was shelved by this Government on the inadequacy of our system in addressing the needs of victims of sexual abuse in this country. There was a huge review done by the Law Commission on looking at alternative pre-trial and trial processes to improve the ability of sexual abuse victims to get justice in our courts. We have a system that denies justice to about 99 percent of sexual abuse victims in this country, and this Government after months—and decades, in fact—of work on that issue just decided to shelve it, because it was not a priority and because some of the ideas in that review were contentious. Not many of them were—a huge number of them, in fact, had agreement—but some of them were contentious so this Government shelved it.

Where in that is any concern for the victim? It is a joke to put this forward in front of this House and pretend that this Government cares about victims, when the most major piece of work that would have helped improve justice for victims in this country was shelved with no adequate reason being given for it.

Another reason that we are opposing this bill is actually the point I made earlier: that we see prisoners being able to be victims. It is a very basic principle. This bill will have the perverse result of making prisoners less likely to report torture and will take away incentives for our corrections systems to create the safe environments that would mean that this legislation was completely unnecessary.

Although New Zealanders may have a gut reaction and think that it is unfair that these people who may have done terrible things are now getting a payout from the Government, that train of thinking is focused on what happened to somebody outside of prison that was done by this person, and it misses the situation of that prisoner having been victimised by our State. The case that led to this was a case of extreme torture that was perpetuated by the State and I am very pleased to see the Government now taking action in terms of helping to protect, hopefully, transgender prisoners in New Zealand who, we know, are being sexually abused in our prisons at the moment.

The State has a duty to protect prisoners. That is a basic, basic part of human rights and we know that we are not going to have safer communities if we have prisoners who feel that they are, in turn, being victimised by the State. That is not going to lead to them feeling as if they have something to contribute to our society and something to give back to the community, if they are alienated through the rehabilitative process. So there are many reasons that the Greens are opposing this bill and at heart it is because we care about victims.

Just a very quick call—[Interruption] Sorry?

💬 Hon Ruth Dyson: Do a proper speech.

Well, let us talk, first of all, about Phil Goff, shall we? He talks about criminals and victims, but he is the one who broke the law just the other week by releasing a coroner’s report that was suppressed. He gets up in this House and talks about all these horrible criminals, but the fact of the matter is that he should get up in the House and apologise to the coroner for releasing a protected report. That is the issue here, so he has got a cheek to get up in this House and talk about that.

I think the best speech in this House was Andrew Little’s. Andrew Little put it succinctly—that is, that this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill is a good bill, and he supports the bill, not like Phil Goff, who gets up and does this raving speech about the rich and the poor, and the criminal and the victim, and the “I’ve done this.” and “I’ve done that.” He rails against the bill, but then he says: “But we’re going to support it.” What a speech for the ages! I support this bill. All it does is to make sure that the victims are looked after.