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

I do not want to disappoint Tau Henare, but our support for this bill is highly contingent. We have considerable reservations, if, indeed, not anxieties, about this bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill.

We understand the origins of this legislation. The origins of the Prisoners’ and Victims’ Claims Act go back to the previous Labour Government. It dealt with a very confined, very specific set of circumstances, but it was to foreshadow a more comprehensive review of our victims’ rights regime.

This legislation is not actually victims’ rights legislation. This places victims’ rights on the level of a lottery. If you happen to have been violently abused, mugged, harmed, or injured by a prisoner or by a perpetrator who then, on serving a penal sentence, is himself or herself beaten up, abused, tortured, or whatever and is successful in a claim against the Crown for that abuse, then you might have a claim as a victim. Well, that is not a victims’ rights piece of legislation, at all.

We understand the confined nature of this legislation. It originated under a Labour Government and we continue to support it for that reason. But we have also done so because we were given an assurance and an undertaking that there would be a proper review of our victims’ rights regime. This Government made that undertaking. It said it would consult with other parties, including us, and it has not done so. It has not fulfilled that undertaking. So that work still remains to be done.

My colleague Phil Goff talked about the impact of this legislation since it was originally enacted. It has led to a total of $47,000 worth of compensation being paid to victims out of a total of nearly $250,000 awarded to prisoners for the abuses they have suffered at the hands of the State. That is hardly a great rallying cry for a successful piece of victims’ rights legislation. It simply is not, because it is so chance-based and really requires some considerable degree of misfortune on the prisoner’s side and, you might say, luck on the side of some victims. That is not taking victims’ needs seriously. That demand, that need, remains, and it remains unaddressed in this piece of legislation.

So if by passing this legislation we can give the Government room to continue to consider the issue of a proper regime of victims’ rights, it will have our cooperation in doing that. I lay down that challenge and that invitation to the Government. We know that that work still needs to be done, the Government knows that work still needs to be done, and we should be concentrating our efforts and the efforts of this House on that.

None of that means that we do not also ensure that the way we treat prisoners—those who are serving prison sentences, those who have been incarcerated by the State as a punishment for the conduct they have visited on other citizens—fulfils our international human rights obligations. We treat those who are in the custody of the State properly and with humanity, knowing that merely by being incarcerated they are serving their punishment. Their simply being sentenced to prison does not justify other abuses behind prison walls, out of the public gaze. We understand all that, and that is a crucial part of our total criminal justice and corrections system.

But when it comes to victims’ rights, let us not deny that there is something repugnant about the idea that somebody who has been the victim of the serious violence of a criminal—or, indeed, as Phil Goff has pointed out, somebody who has been ripped off by a white-collar criminal to the tune of tens of thousands, hundreds of thousands, or millions of dollars—has to stand by while that criminal is able to recover considerable compensation from the Crown for wrongful treatment, because a misguided prison manager or a misguided corrections officer has mistreated the criminal, leading to a recovery for the prisoner while the victim gets nothing. That is unjust, and that issue still needs to be addressed. This bill is a start towards addressing that injustice, but it does not go anywhere near dealing with it and addressing it fully. So, as I say, that work remains—that work remains.

The impact of this legislation since its inception, and the impact it will continue to have, means that those who do recover from the State in the rare instance when that happens—we have the Taunoa case and one or two others that have followed it, but not many others—when the prisoner does recover compensation, it then gets paid to the State. The various claims that can be made upon it are paid out, including the recovery of some of the costs that the Crown incurs in bringing a prisoner to justice, and then money goes to the prisoner. It is important, if we are serious about victims’ rights, that victims have a claim, regardless of whether or not the prisoner is able to get some sort of windfall payment as a result of an abuse by the Crown.

A proper victims’ rights regime—and, indeed, a proper system of criminal justice—would say not only that those who have suffered at the hands of a criminal are able to recover once the criminal has served a term of penal servitude, if that is what the justice system demands, but also that the victim can claim and seek, and reliably expect to receive, some sort of reparation or compensation for the material harm done to them. That is what a real victims’ rights regime would provide for. That is what this legislation, when it was enacted under the Labour Government, ought to have led to—a proper, deliberate consideration of the needs of victims and reparation for victims, as opposed to this stop-start lurching from one remedy for a confined set of circumstances to simply rolling over the same remedy for the same confined set of circumstances. That work needs to be done.

So let the passage of this bill through this House at this time be a clarion call to this Government and any future Government to say: “Let’s get on with that work.” If we are serious about victims’ rights and we understand the impact of serious crime on victims, whether it is violent crime or whether it is white-collar crime in the nature of fraud and generally ripping people off, let us have a proper and serious considered look and conversation about what might be done to more reliably give an assurance to a victim that they can get justice beyond simply seeing the perpetrator of the crime against them banged up in jail for a period of time and deprived of their liberty. That to the victim is of limited use when they have been deprived of their ability to go about their ordinary business in their life, or deprived of their future if their funds have been ripped off them. That is the real challenge laid down by this bill.

We are up for that challenge. We are up for that conversation with a Government that is interested in doing that, and I know that other parties will be, as well. Let the passage of this bill at least lead to that process. Let us hear from the Minister in the chair that he is prepared to give that assurance, so that we can at some point in the near future look back and say: “We have a world-class system, not only of criminal justice but of victims’ justice and victims’ rights, as well.”

I would like to make a few comments on some of the detail of this bill, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, and to talk initially about the clause that reads as follows: that this bill makes “it clear that certain persons unlawfully detained by or on behalf of the Crown are, and have always been, for the principal Act’s purposes and the period of their unlawful detention, persons under control of supervision… ”. Roughly translated, that means that this prisoners’ and victims’ claims legislation—that is, the denial of any restitution to prisoners for any wrong done to them while they are in prison—will be extended to include the situation where prisoners are kept in jail longer than they ought to be.

This happens surprisingly frequently. The flip side, to the advantage of some individuals, of course, is that occasionally prisoners are released sooner than they ought to be. These are administrative errors. They ought not to happen—I am sure people in corrections work hard to see that they do not—but they do occur. Sometimes people are kept in beyond the expiry of their sentence for some significant periods of time.

It is interesting that we are told in the regulatory impact statement that the intention of the original legislation was that people unlawfully detained beyond the expiry date of their sentence would nevertheless be subject to this prisoners’ and victims’ claims legislation. The insertion of this clause, as they say, is for the avoidance of doubt, whether it was because of case law or simply an observation that it could perhaps be read differently. For the avoidance of doubt, we are told that prisoners kept beyond the expiry date of their sentence will nevertheless for that period be subject to claims by any victims. Any restitution paid to them for that unlawful detention will be subject to claims by any victims.

The argument has been made this morning—and I do not think it is a compelling argument nor defensible—running roughly like this: people who offend and are imprisoned therefore lose their rights, or lose some of their rights beyond simply their right to their liberty. We are told that people bring that on themselves, essentially. They offend against people’s property or against people physically, violently, or whatever, therefore for the period of their incarceration they should not be entitled to any restitution. I fail to see how you can extend that argument to say that people should not get restitution if the Crown fails in its duty to release them on the appropriate date. You can argue that the period of the sentence has been brought on the prisoner by their own actions, and quite reasonably. I fail to see how an unlawful detention beyond the term of the sentence is the fault of the prisoner.

By this reassurance, by confirming that unlawful detention is subject to the prisoners’ and victims’ claims provisions, that somehow implies it is the prisoner’s fault; that it is by their action that they have been unlawfully detained and therefore they should suffer the penalties and they should be denied any possibility of restitution. Frankly, that argument makes no sense to me. I would be really interested to hear a justification for including unlawful detention for the period that prisoners are kept in jail when they ought not to be through no fault of their own. How is it their fault? How is it, therefore, that they are subject to, then denied any possibility of restitution for, that unlawful detention? I would be very interested to hear exactly how that spins out in the mind of the Minister of Justice, who drafted this bill.

The other point I will make is a more general point. We have in our prisons a complaints process, which is an internal complaints process managed and operated by corrections. Beyond that, there is also an appeal available to the Office of the Ombudsmen. I think it is important to realise that there is a very low level of confidence with inmates, with their families, with other interested parties, with NGOs who observe these things, in the complaints process. To a large extent, it is because prisoners are often in the slightly odd situation where they are having to hand the complaint to the person who could well be one of the people they are complaining about. That is a very perverse situation and one that I think we need to think harder about. The point is that if prisoners’ complaints are not heard, and if prisoners and other interested parties are observing that the complaints process is not working, then we are more likely to get outbursts of violence and incidents in our prisons. It is very hard to see in the context of this bill how revictimising people while they are in the care of the charge of the State—

I would just like to pick up on a couple points that my colleague David Clendon has made. This legislation, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill, in my view, is not about saying that people who offend lose all their rights when they go to prison and that they have no rights. I think that is a misconceived view of why this was introduced. I guess I am in a reasonable position to know why it was introduced, because I did the introduction. What I said when I introduced this bill, I still believe. I want to read it out, because I think it is pertinent. I said that most people believe that 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. This arose from the Taunoa case and the behaviour modification regime. That regime was wrongful and it has been done away with, but the people who were in there were amongst the worst offenders. The damage they did physically and emotionally to their victims was intense, and they were going to collect tens of thousands of dollars for their rights being harmed. I did not believe then, and I do not believe now, that if you have harmed somebody else and you get a windfall compensation, you should not be required in turn to compensate your victims. Part 1 of this bill keeps that provision in place, and I believe rightly so.

I am not arguing at all that the Department of Corrections is above the law; if it breaks the law, it needs to be called to heel. It must operate under the law. There are provisions that enable that to happen. When we put the Corrections Bill through in 2004, that set up an internal complaints procedure. I disagree with David Clendon that that does not work. We also put through in 2007, under the Crimes of Torture Act, the role of the Ombudsman to be designated as the national preventative mechanism, where two inspectors appointed by the Ombudsman regularly go through the prisons to examine the conditions and the treatment of inmates. It is putting the fence at the top of the cliff, not a compensation regime at the bottom, that is really important. So the first point is that.

The second point is that this legislation actually does not prevent any claim for compensation being accepted by the court. The court simply has to do a number of things first. It must first consider whether there are remedies other than compensation that should be employed in dealing with a claim by the prisoner. It must consider whether the prisoner made reasonable use of the complaints procedure and was not trying to milk the system. That is fair enough. It said that compensation should be reserved for exceptional cases when it was necessary to provide effective redress, and that is fair enough. For those reasons, I am comfortable with the fact that this bill remains in force. What I am not comfortable with, and what Part 1 of the bill does not address, is that we are limiting the payments of compensation to victims by criminal offenders to an ever-decreasing number of people. Hopefully, when we stop abuses that might occur within the corrections system, there will be no grants, but does that mean to say we do not have to look at the wider problem, which is that most victims never receive a cent in reparation or compensation from their offenders? If we have inmate A, who wins Lotto and gets a million dollars, does that mean to say he should never have to pay back that money to the victim to whom he did so much damage?

The other example I used is the example of a white-collar offender. They do have the human resources that would enable them ultimately to compensate their victims. Part 1 does not address the problem of the privileged white-collar offender who goes to jail for 2 years, gets out, goes back to living in the mansion and driving the flash car, has all sorts of resources in the family trust, and leaves thousands of victims of his offending, which robbed them of their life savings, never being able to get compensation from their offender. In the original legislation we had sunset clauses. Those sunset clauses called for a review. This part does not actually act on the original legislation. It does not provide for an extension of a system that looks to the interests of the victim. I am in the position of criticising this Government because it has overlooked the opportunity to do something meaningful to help thousands of victims of criminal offenders who never get reparation, and who never see restorative justice, where the offender is never required to put it right for the victim. This measure is supported by us because in a very limited range of cases, there is good cause to say that if the offender gets compensation from the State, they may have to pay that to their victim. But it does not say that the vast majority of offenders, when they have the ability to do so, should repay their victim and make reparation. This bill does nothing to allow justice to happen in that way.

The bill that originally went through Parliament asked for a review. Each time, when we had to extend the legislation, the Government failed to ever put that review into effect. It failed to use its imagination. It failed in terms of commitment and determination to do something on behalf of victims. That is why this is regarded by Labour as weak, as half-hearted, and as inadequate. Yes, what it keeps in place is OK, but it does not extend what it put in place. It is not wrong to expect of any criminal offender, blue-collar or white-collar, if they are in a position to do so, to make reparations to their victim. They may not be in a position to do so at the time of sentencing or while they are in prison, but if the circumstances arise where it becomes possible for them to provide compensation, then surely they should be required, under common sense and any principle of justice, to set things right for the victim.

Time and again we have heard the rhetoric on the election trail about the need to look after the interests of the victim. When this National Government had the opportunity to do a review and to find ways that we could require the offender to compensate the victim, it came up short. In the course of this debate, we have not heard from the Minister of Justice. Perhaps the Minister would like to address this: why did the Government not utilise the opportunity provided under the legislation for a review, to do a review, and to consult with the Opposition, as the Minister at the time promised? She broke that promise. She reneged on that promise. The Government has been complacent. It has said: “Well, we’ll keep this in place. Labour introduced it. We’ll keep it in place, but we won’t do anything more.” That relegates thousands of victims across our country to be in a position of never having hope that they will get a fair redress of the injustice done to them by requiring the person who did that injustice to set things right. What more could we ask from a system of justice than it restore the position of the victim?

This is a lost opportunity. This maintains the status quo; it does not extend it. It relegates compensation payments to an ever-dwindling number of people who might get compensation because of breach by the State of its responsibilities. It does nothing to protect or enhance the position of the victim. That is why, although we will support it, because it keeps in place a limited measure that I introduced, it does not take the opportunity to extend it to provide a better, a fairer, and a more just outcome for victims. Shame on the Government for not taking that opportunity.

I feel that there has been a good process through which this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill has gone, which has therefore resulted in a good bill. There were also some very good submissions, but I would have to say that I fundamentally disagree with some of them. The Law Society made a very good submission, and suggested that, following Taunoa v Attorney-General, the bill was actually not needed. Of course, the Taunoa case did narrow the scope for prisoners’ rights to compensation, and that is also what this bill does. But I do not agree that the bill is not needed. What the Taunoa case did show was that the law at that time was moving in the same direction as this bill is, and no doubt that is a movement that would have been irresistible. In any event, there are some significant advantages in a bill of this kind. I think the main one is that there is a code there to which prisoners and victims can refer to understand their rights. I think that in itself will go quite a long way to limiting vexatious claims by prisoners and unrealistic expectations by victims. So it is a very good bill for those reasons.

I also reject, I think, the submissions made by the Ombudsman and the Human Rights Commission. They suggested that the bill would result in a reduction of human rights for prisoners. I understand that that is also the position that the Green Party has taken. I do not believe that is the case. It certainly narrows the rights of prisoners and it defines those rights. It does not remove them. I think there is also a need for a balance between those rights and the rights of victims. That emphasis is the one that the Labour Party has, I think quite rightly, emphasised.

I would have to say, however, that the real question is whether this bill actually does go far enough. We have heard a couple of speeches from Labour members who suggest that it does not and that there is further work to be done, especially with regards to victims’ rights. I suspect that there is some validity in that position. However, I have not really heard any specificity in the claims that more work needs to be done and that the bill does not really go far enough. New Zealand First is, however, always prepared to listen to those kinds of arguments. I have not actually heard any yet; I have heard only general claims that more needs to be done, and I do not know what that really is. So, if other Labour members can tell me a little bit more, I would be grateful for that.

On the other hand, the Greens say it goes too far. They say prisoners’ rights will be too constrained. In fact, Mr Clendon said that. I do not think that is the situation at all. The bill certainly limits and narrows claims, but it does not really reduce them in any way that I think is a concern for human rights.

However, New Zealand First has a different position from either of those, and we feel that the bill does strike the right balance. In fact, we expect that the courts over time will further develop the law with regard to this tension between prisoners’ rights and victims’ rights and that they will develop the law within the scope of the bill. That is appropriate, and I think—and we in New Zealand First think—that that is enough.

I am pleased that the Government did listen to a number of the submissions. There is one in particular that I approve of, and it concerns the issue of compensation diversion. The Government originally wished to provide for a compensation diversion provision, which would have meant that there would be a pool of prisoners’ compensation funds, which victims could refer to. That, I think, would have gone too far. It would effectively confiscate any compensation that a prisoner was awarded. So it is much better that that provision has been deleted and that the Government did listen to that, and now victims may, in fact, claim only against the specific award of the prisoner who committed the offence. I think that is appropriate, so I am glad that the Government listened to that and that we have a better bill as a result. That good balance has made it possible for New Zealand First to support the bill.

It is, therefore, a bill we can support because it does achieve that balance, but that did not really arise because it was a Government bill and a Government-conceived position. So I do not think the Government can really particularly take credit for the bill as it now is, because it is not the bill that it originally introduced. What has actually happened is that the bill has gone through a good process. It has been amended, and it has been modified, and now we get a good balance. So I think that the bill is a tribute to the process, to those who submitted, and especially to the Justice and Electoral Committee, which dealt with it. We support it because of that process and because it is a good outcome. We think that it does not really need any further work, but if others feel that it does, they need to be more specific about what that should be. We will be voting for the bill, as I have already said.

I am happy to assist the previous speaker, Denis O’Rourke, with some advice as to what would improve this legislation, the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. It would require some action away from this place initially, because it would require a substantial review of the issues that were really the reason for the original sunset provision.

During the period of the legislation’s original enactment, 5 years, I think, was allowed in order for some significant work to be done on the whole issue of reparation for victims. When I read that list before, of the number of things that the best evidence shows would support victims in terms of their recovery from serious offences, I saw that reparation was an element of that. The question of reparation comes well down the list, after respectful and confidential treatment, individualised response, and flexible services, but within the context of individualised responses, obviously reparation comes up.

The real issue with the sunset provision—the period of time before the provisions expire—was that we were asking how we would get reparation to the victims and how we would do that in a timely fashion, because the timeliness of reparation is very important. A number of the submitters who came to the Justice and Electoral Committee made the point that “Actually, we don’t want to hear about this guy again until we have to front up for a parole hearing.” In terms of the thought that they might take some comfort from the fact that the prisoners had had their human rights abused in some way, shape, or form, and that that therefore enabled them to pay some money to victims, they said they could not think of a worse way of receiving reparation, because it would just bring back all of the memories of everything that had already happened.

So the idea of the extension of time with the provisions falling out of play was to enable us to establish a system for providing reparation to victims and then decide after that how we then fund that payment. Part of that payment was not to come just from the chance that a person’s rights had been abused in prison; it would have enabled us to then look at any windfall provision. It could have been a tax—an additional tax like a student loan or an additional tax repaid from earnings by those who have offended against someone.

Remember, not everyone who is in prison has actually caused a victim of a crime. They may, in fact, be the sole victim of their crime. They may have driven drunk several times and ended up without having caused an accident, but, having been caught, they may have ended up in prison. They may have been in prison for possession of marijuana, or they might have been in prison for possession of another drug for their own personal use. So there are a whole lot of reasons. Driving offences are actually a significant reason why people end up in prison at any one time. If their rights are violated, they have no credible claim for compensation if it is simply going to be taken by the Crown for the general use of victims, because they have not actually caused a victim of a crime.

So that is why this bill is problematic, and that is why I have no enthusiasm for it. I believe that we are doing the right thing in voting for it, simply because it does not offend against the underlying principles. I actually agree with the New Zealand Law Society that it is not really needed any more, as a result of the Taunoa case and subsequent changes to how the courts might approach these issues.

I think that the best thing we could have done would be to actually step away from the issue and ask what we were trying to achieve. What we are trying to achieve is we are trying to ensure that victims have access to reparation at a very early stage so that it is timely—in fact, it is immediate—and so that people do not have to spend money. We heard people saying that they had had to travel great distances to the original arraignment and then to the court hearing itself. They ended up in a town where they had not expected things to be held over for as long as they were, and so they had to buy extra clothes. There were just lots of little examples that people gave to us of significant expenditure, significant costs, that they were confronted with at a time when they were grieving the loss of their daughter, the loss of one of their children, or the loss of a husband or a wife.

We have had people give evidence at the select committee that that is what the priority is. What we were supposed to be doing in the period within which this had its sunset was actually establish what the best way was to provide for that in advance, immediately, and then how we claim it back. One of the groups of people whom we had to claim it back from was the people from whom reparation ought to be sought, and they are the perpetrators of those major offences. But not every single person who has committed an offence ends up in jail, and that is the perpetrator I am talking about. But should those perpetrators in fact be allowed to keep a windfall of a Lotto win after they leave jail? Should they be allowed to keep a Lotto win or should they in fact be required to reimburse to the account from which the reparation was paid to their victim? Should they have an ongoing, lifelong obligation to repay that amount if there was a windfall situation?

That was the sort of thinking outside the square that we had really expected to be done during this period. That is why on the one hand Phil Goff can say that it does not go far enough and on the other hand the Green Party can say that it goes too far. In many respects they are both right, because the legislation that we are dealing with actually does not do what the original legislative sunset period was designed for. That was designed for a very specific, serious piece of work. This bill does not deliver on that, and I think that is the tragedy of it. But on balance, as I said before, Labour is voting for it.