Prisoners' and Victims' Claims Bill

I move, That the Prisoners' and Victims' Claims Bill be now read a second time. This bill is motivated by the Government’s belief that offenders should not enjoy financial compensation for wrongful treatment without first having to address the harm caused to their victims. This bill aims to ensure that prisoners can be awarded monetary compensation only in exceptional cases, where it is the only effective remedy and where the person has first made use of other avenues of complaint. Secondly, it seeks to ensure that if an offender does receive compensation, victims will be able to claim their own redress from that sum.

The bill introduces guidelines to restrict the circumstances in which compensation can be awarded. After the bill is enacted, if a person in the corrections system claims compensation for a breach of his or her rights under the New Zealand Bill of Rights Act, the Human Rights Act, and the Privacy Act, compensation will not be available unless the person can show to the satisfaction of the court that he or she has made reasonable use of available complaints mechanisms and has failed to obtain effective redress, and that no other remedy, or combination of remedies, would provide effective redress. In considering whether to award compensation, the court or tribunal will also be required to consider a range of factors, including steps taken by the prisoner to mitigate the harm, steps taken by the State to remedy the breach, whether the breach was deliberate or in bad faith, the consequences of the breach, and the importance of the right that has been breached.

In the exceptional situation where compensation is paid, the bill introduces a new mechanism that will assist victims of the offender to have first claim against it. The bill does that by establishing a trust account and a special victims’ claims procedure. Where compensation is required to be paid by the Crown to a prisoner, either in the form of public law damages or as the result of a claim in tort, that compensation will be paid to the Secretary for Justice. After deducting relevant legal aid charges and any unpaid reparation, the Secretary for Justice will place the money in a bank account to be held in trust, so that the victims can claim against it. The Secretary for Justice will take reasonable steps to identify and notify victims. Victims will be sent an application form and will have 6 months to file a claim in writing. To assist them financially, victims and offenders will be exempt from the usual financial eligibility rules for legal aid, up to a capped amount. The parties will also be relieved from normal filing and hearing fees.

Claims will be determined by a District Court judge sitting as a special claims tribunal and will usually be determined on the papers, unless there are exceptional reasons to justify a hearing. Victims will not have to re-prove the details of the offender’s crime. The tribunal will be able to rely on findings of fact in the criminal case that led to the offender’s conviction. The tribunal will determine claims and make any orders based on the general law of damages. The Secretary for Justice will then pay money out of the trust to victims, according to the tribunal’s order. Where there are multiple victims and insufficient funds to meet all the victims’ awards, the available money will be paid on a proportional basis.

Victims have always had the right to take civil claims against offenders for the harm or loss they have suffered. However, they rarely do. In part, that is because they are at a particular disadvantage: by the time the offender is released from prison, the 6-year limitation period has often expired. The bill will address that by providing that for civil claims by victims against offenders, the 6-year limitation period will be suspended whenever the offender is in prison. The new limitation provisions will benefit all victims of offences, whether the offence occurred before or after the legislation takes effect, irrespective of whether the offender had sought compensation, and even if the victim’s actions would previously have been statute barred under the Limitation Act.

Some submitters argued that offenders should never be entitled to compensation for breaches of human rights. I understand their sentiments. However, a blanket removal of compensation would breach fundamental international obligations that successive Governments have committed themselves to. No country with which we would like to compare ourselves, including Canada, Australia, the United Kingdom, or the United States of America, denies the right of compensation in all circumstances.

Some submitters on the bill expressed concern about the adequacy of prisoner complaints mechanisms. The bill will restrict the availability of a monetary remedy. However, it does not restrict the ability of offenders to make complaints about their treatment. The existence of a monetary remedy is not the only reason that prisoners complain. Prisoners complain because they want their complaint to be investigated and addressed. That is clear from the number of complaints to the Office of the Ombudsmen, in spite of the fact that the ombudsmen have no power to award damages. Every effort should be made to ensure that rules regarding minimum standards in prison are not breached in the first place, so that no grounds exist to bring claims for damages.

In October last year the Government directed Ministry of Justice officials to lead a review into the effectiveness of existing inmate complaints mechanisms. The findings confirm that although the system does identify most breaches, deficiencies remain that need to be addressed. The internal complaints process is still being underutilised, and the Department of Corrections could be more responsive to the Office of the Ombudsmen. Several steps are being taken to address that. The new corrections legislation and regulations that come into force on 1 June will strengthen the complaints procedures. The new chief executive of the department is committed to making a change in culture and ensuring greater responsiveness by his department to the ombudsmen. The Office of the Ombudsmen is also undertaking an investigation into prisoner complaints processes. Its report, which is due in December, could also lead to improvements in how the department and the Office of the Ombudsmen work together. However, should those changes not achieve an outcome whereby the system can be relied on to prevent, or to quickly address, any serious breaches, consideration will be given to a new independent prison complaints body. I have directed justice officials to do preliminary work on how such a body could operate.

Some submitters also spoke of the need for the Government to do more to assist the victims of crime. The accident compensation scheme provides support to victims of crime and to those who lose a family member as a result of a crime. In 2004, for example, the Accident Compensation Corporation provided a total of $45.117 million to victims of crime, including sensitive claims. The Government is committed to ensuring that the victims of crime receive the assistance they need to rebuild their lives. I welcome the Justice and Electoral Committee’s recommendation that there should be an inquiry into whether support and assistance for the families of homicide victims could be further improved.

In concluding, I thank those people who presented submissions to the select committee, some of whom told very personal stories about the terrible effect that crime has had on their family. This bill, and the steps being taken to strengthen the complaints processes, will reduce the likelihood of compensation being paid to offenders, and ensure that where compensation is paid, victims will have a better opportunity to seek compensation for the unrecompensed harm done to them. I commend this bill to the House.

I raise a point of order, Madam Speaker. I did not take this point of order at the start of the delivery of the Minister’s speech, as I did not want to interrupt his speech. An issue has arisen with respect to the report back that I have raised with one other bill in this House and I will ask you for a considered ruling on this.

Standing Order 244 refers to minority views, and states: “A select committee may, in its report, indicate the differing views of its members.” This is further borne out in Speaker’s rulings 81/3 and 81/4, which refer to minority or differing views of members. Speaker’s ruling 81/3 states: “… These differing views,” referring to those in the minority report. A further context is provided for my point of order in Speaker’s ruling 81(4), which relates further to minority views as being “diverging views”, both in the first line and the last line.

The point of that contextual background is that the commentary on the bill on page 2, just prior to the heading “International obligations”, quite clearly states: “In this commentary, ‘most of us’ refers to Labour and United Future members.” That being the case, we can assume that United Future has indicated that it is part of the majority in the report back, indicating that “most of us” refers, naturally enough, to the Government—to Labour—but also to United Future. Then extraordinarily we have a minority report from United Future contained in the same commentary.

The Standing Orders and Speaker’s rulings make quite clear, in the context I have outlined, that minority views relate to differing, or diverging, views from those of the majority, whereas the commentary indicates that United Future considers itself, by definition, in fact—not by implication, but by express definition—to be part of the majority, by including itself in the commentary under the quote “most of us”.

Unfortunately, when it comes to reporting back, political parties do not get to have a buck each way. The Standing Orders and Speaker’s rulings make very clear that minority reports refer to diverging or different views. In this case the Justice and Electoral Committee has, through its commentary, indicated that United Future sits with most of us in this report. It sits with the majority. At the same time it is trying to have a dollar the other way, by indicating a minority report.

I have raised this issue before. In that case, there was no specific reference in the report back to who was included in the majority. I was rightly told to sit down and get over it. In this case there is a specific reference to the fact that United Future considers itself to be in the majority. The context I have provided from the Standing Orders and Speaker’s rulings indicate that this is inappropriate, and I would seek a considered ruling from you on this issue.

The whip for the National Party, Mr Power, raises a point that might show the evolution of practice. We are inclined toward giving the public a much clearer idea of the reasoning for the way in which members of a committee have approached issues, without recognising that the Standing Orders in this respect started pre-MMP, when possibly the discipline between the two parties was a lot more robust. But the commentary we have here is probably a proper reflection of what happened in the Justice and Electoral Committee, and I speak as a member of it. I was not sure whether the whip asking for the ruling was asking that the report be removed, or the terminology be changed, or was saying that the report itself is invalid. I would be reluctant to see any ruling that prevented this kind of report.

In a sense, the situation is self-evident. United Future members were wanting to have a bob each way. They were unhappy about the bill but were still voting for it, and they wanted to record their unhappiness even though they were voting for it. My view is that it is appropriate for members of the House to see that, and it is appropriate for the public, researchers, and others in the future to understand it. I think they will be baffled, because the committee has adopted some constraints. There is a voluntary constraint, in the sense that a minority view should be confined to a reasonable length, which we have said is a page.

But I hope that if the Speaker does agree to give a ruling on this, the ruling tries to accommodate this situation. I think the remedy is here. I think it is absolutely farcical for a party to trash a bill completely, then vote for it, but I think that the House can read what United Future is doing, and that members can make up their own minds, without our bringing down a rule that says it cannot do it.

Interesting points have been raised. This is not the first example of parties doing this in minority reports. Madam Deputy Speaker, the senior Opposition whip has asked for your considered ruling, and that is appropriate, but I do not think we need to get into a round robin submission process on that. You can undertake whether you want to give us a ruling on that, and we can be guided by your view.

I do not intend to waste the House’s time, but as a member of the Justice and Electoral Committee I do feel I have something to add, and it is a slightly different point. It is clear that minority reports are an extremely important part of select committee commentaries. They provide an alternative view to the majority view, and it seems to me to be quite justified that a party supporting a bill may well have a valid reason for putting forward a minority view on specific issues in the bill that they disagree with or would seek to have amended.

However, I agree with Mr Power that it is not appropriate for a party that supports a bill to put in a minority report stating it does not really agree with it, but will vote for it anyway. If that party were to mention specific points it was seeking to amend, I would think that that was quite a different matter, and that we should allow for that, but I think Mr Power has a very good point.

I genuinely thank members for their contributions. In no way in an MMP environment would I like to see parties curtailed from expressing views that are different from those of the majority on any committee. But there is a slightly different issue at stake here from the one raised by my colleague Mr Tanczos. I agree with his analysis, but the problem is that in this case the United Future party specifically identified itself in the commentary on the bill as being part of the majority but then went on to give a minority report.

I think that at a philosophical level Mr Franks is dead right. It may well be that there is a hold-over from a first-past-the-post environment when it comes to minority reports, and I for one would hate to see that right curtailed, which is why, Madam Deputy Speaker, I have asked you for a considered ruling. But, specifically, I think that, in light of my comments about the contextual argument contained in the Standing Orders and Speakers’ Rulings that minority views are diverging or different views, United Future is not allowed to have a bob each way by saying it will vote with the majority but will also have a minority report. Therein lies the dilemma for yourself, Madam Deputy Speaker.

I thank the member. I have just a couple of points. The member keeps using the term “minority report”, when actually the expression is a “minority view” right through the report, and that is an important point. I also make the point that Standing Order 244 certainly provides for committees to include differing views in their reports.

Simon Power: Diverging.

Madam DEPUTY SPEAKER: Well, differing or diverging—it is the same thing. Certainly, Speaker Hunt in his ruling did say “diverging views” but it can be “differing views”, too. While it may seem unusual in this instance for a party that is assumedly part of the majority to have a differing view, it is not impossible. I think Stephen Franks was probably making some of that point, too. It is a matter for the committee to decide whether the view is a differing view and whether it should be included in the report. In the end, the matter is for the committee. I am very happy to discuss it with the Speaker, but I just make those points.

I appreciate your ruling, and I would appreciate your raising the matter directly with the Speaker. Although it was a matter for the committee at the time the report was done, it is now a matter for the House to decide whether the course of action followed by the Justice and Electoral Committee was appropriate, and that is the issue I raise.

No, it is a matter for debate, but I thank the member.

The National Party in Opposition is opposed to the Prisoners’ and Victims’ Claims Bill. We believe that payments to prisoners should be blocked, stopped, and wiped out. We do not believe that New Zealand should be constrained by the figment of what the United Nations may or may not state in various conventions. We believe that the people of New Zealand have a right to express their view, and the view of the people of New Zealand is that there should be no payments whatsoever. The Justice and Electoral Committee reports at some length about the victims who appeared before it and expressed their views on the priorities that there should be. The select committee clearly stated that the overwhelming majority of victims who appeared before it wanted to deprive the criminals of the money rather than to enrich themselves as victims. The victims did not want the money and did not want the crooks to get it, either. We think that the Government has failed completely to address any of the concerns of victims and of the wider community.

Let me make it absolutely clear what this bill does. Even though Mr Goff may stand up and say he is stopping prisoners keeping the cash, this bill allows inmates to keep some or all of the cash. It does nothing to stop them getting the loot. It does nothing to stop them receiving taxpayers’ money for all the range of imagined harms that they may have experienced while they were behind bars, serving their punishment for offending against the community.

How can it be that this bill allows inmates to keep some, if not all, of the cash that may be awarded to them in a compensation claim? National’s view in its minority report on the bill, written by Dr Richard Worth, makes quite clear the number of areas where prisoners can keep the money. The first area is when the victims are deceased—if the victims are deceased, the prisoner can keep the money. What happens if the victims are not readily identifiable? The National Party has used the example of many of the most vile inmates in our country’s prisons: the drug dealers. Those people have sold drugs, whether it be through a middleman or directly themselves. But how can we identify their victims and who are eligible to make a claim? We cannot. So if a drug dealer gets a $300,000 or $400,000 payout from the Labour Government, there are no readily identifiable victims to make a claim, and the criminal gets to keep the cash. We think that is a failure of this bill and a failure of the Government’s policy.

The National Party makes the following point in its commentary on the bill, and I agree with it completely: what sort of bill pits one victim against another? What sort of Government pits one victim against another? This bill, if for some horrible reason it is passed into law, will require victims to plead their cases of relative harm in order to receive any compensation payment. We will expect some authority to measure the different levels of harm, anguish, and continuing suffering that various victims feel. That is all too heartless. This bill will allow prisoners to keep some, if not all, of the cash, and that is not what New Zealanders want.

One of the arguments that the Government has used—and the issue seems to have tied the United Future and Labour members of the select committee in knots—is the undertakings that New Zealand has apparently given with regard to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Members will recall that when this bill was introduced, the Minister of Justice appeared on television and said that the United Nations convention requires that we pay the money, and that we do this and that. But as the National Party has pointed out, it is quite clear that New Zealand has a specific reservation in respect of the right to award compensation to such criminals under article 14 of the convention, and it is that compensation is payable only at the discretion of the Attorney-General. New Zealand has made it quite clear to all the international agencies that we will not follow their rules as we have our own rules, and that any payment will be made only at the discretion of the Attorney-General. So it would be very easy for the Government to pass a law, or indeed to adopt a policy, that it will not pay money to criminals for any alleged harm or otherwise that they may have suffered while in prison.

New Zealanders were outraged that the Labour Government wrote a cheque for the hurt feelings of a vile individual who raped and killed a young woman as he stuffed pebbles down her throat. He received a cheque from the Government because of his hurt feelings. A man who raped and murdered a woman while shoving pebbles down her throat had a payout from the Government for hurt feelings. The Department of Corrections decided that it would just pay the money out and not even appeal the decision on a matter of principle. I say that no New Zealander would have criticised any authority that said it was so repugnant that such an individual should get a payout that it had to be stopped. It would have been, and it is, very easy to change the law to stop inmates receiving payouts. Let us be absolutely clear that this bill does not stop the payouts. It does not stop the worst criminals in New Zealand receiving a cheque from the taxpayers. It allows inmates to keep some, if not all, of any payment the Labour Government may choose to make. That is not what people want to occur.

I say to the House that it is not against the United Nations convention, or against any other law, for New Zealand to say “no payouts”.

Ron Mark: Yes, it is.

Hon TONY RYALL: It is not. We have expressly stated that we have our right to make a decision. It is expressly the view of the National Party that we should not allow any payments to prisoners whatsoever. If prison staff violate, beat, mistreat, or offend against prisoners and the law, we should charge them.

Ron Mark: Charge them; convict them.

Hon TONY RYALL: Absolutely—just as, for example, if the Prime Minister committed art fraud, we should charge her.

Ron Mark: If she is speeding, going to a rugby match.

Hon TONY RYALL: If she is speeding, we should charge her. Sorry, who is the police commissioner? If prison officers commit a crime, we should charge them. But we should not expect victims to pay taxes so that Phil Goff can write out a cheque in compensation for offenders’ hurt feelings.

This bill will not work. The Government will be humiliated if, when it pays out money to a criminal, there are no victims and no claims, so the criminal keeps the cash. It should take our advice and change this bill—withdraw it. It is much simpler to block, stop, and wipe out the ability for the worst people in our community to receive payouts for what are claims based on figments of their imagination.

I rise to commend the Prisoners’ and Victims’ Claims Bill to the House. I chaired the Justice and Electoral Committee, which dealt with the legislation. We went through a very interesting exercise as a committee in hearing submitters from both sides of the spectrum who had concerns about the legislation, and who proposed a number of other ways to deal with them. As a committee we went into a very detailed process of going through all the other ways in which the commonly desired outcome could be achieved. We came back to broadly what was in the bill, but at the same time we came up with two separate and quite crucial recommendations.

I was interested to hear Mr Ryall deny the reality of 9 years of a National Government that was very careful to keep in line with the international obligations it had signed up to and abided by, and actually advocate that we breach international law. For the majority of the committee that was not an acceptable way forward, and I am very pleased that that position was taken by the committee. Given that constraint, and given that we needed to come up with a scheme that actually worked, we went through all the options and alternatives, and we came back to the model proposed in the legislation. In our view, it is the only one that is workable, applies to cases that are currently before the courts, and is within our international obligations. We also noted that the scheme contained in the bill may never be needed.

There were two issues that would not go away. The first was that we have prison inmates in this nation who have been abused, that we run the risk of that continuing, and that we need a better prison complaints system. Our committee unanimously recommended the establishment of an independent prison complaints system, and that is detailed in our report. The second issue is that there is clearly a need to move further along the agenda of victims’ rights. We heard about that very powerfully from victims who were brave enough to come before our committee, and we recommended an inquiry, which we intend to initiate ourselves as a committee, into the next stage of the development of victims’ rights.

Lastly, I note the conversation about the fact that a number of parties have put forward minority views. That quite accurately reflects the debate we had in the committee. United Future and Labour members, who made up the majority of the committee, ended up supporting the legislation to this stage. The United Future member had doubts, but recognised that, overall, this seemed to be an appropriate way forward. I commend the bill to the House.

I am very happy to speak on the Prisoners’ and Victims’ Claims Bill on behalf of my colleague Mr Dail Jones. The result of the Labour Government’s legislation will be that scumbags, murderers, and vicious criminals on long-term sentences will harass and taunt prison officers purposely to such an extent that if there is even minor retaliation, they will be entitled to compensation. This bill will create a new industry, which will be called the “taunt prison officers industry”—screw the screws; power is in prison. It sounds like one of those principles of the Treaty of Waitangi, and here it is again. It is another gravy train for the lawyers. New Zealand First will be voting against this bill.

No funds should be made available to criminals. They do the crime and they pay the time. I would say that most New Zealanders affiliate with that very, very easily. There should be no compensation. I quote from the section of the March 2005 Leader’s Letter headed “Should Prisoners be Entitled to Personally Receive Compensation?”. It reads: “Do you think criminals should be able to claim compensation for the way they have been treated in prison, and after making some payment to victims be allowed to keep the balance for themselves?”. I am sure my United Future colleague over there, who is one of the very staunch law-and-order men in Parliament, will vote against this bill, but I do not think the other members of that party will.

I move on quietly. Mr Phil Goff, during the times I have spent with him overseas, walks the talk, but in this bill I cannot see that happening. That is the Labour Government’s intention with the Prisoners’ and Victims’ Claims Bill, which went before the Justice and Electoral Committee. The problem we face at the moment is that on 24 August 2004, the High Court awarded $130,000 in damages to five scumbags in Auckland prison, after finding that aspects of the Department of Corrections’ behaviour management regime were unlawful. The decision is currently under appeal. Why the hell did they go to prison? Did they go in there for a soft ride? No, they did not. If the prison officer has to lay the law down, so be it.

I quote further from the Leader’s Letter: “Now, Sam Te Hei who murdered Colleen Burrows in a brutal cold blooded calculated killing in 1987 is seeking compensation for breach of human rights and would get to keep this money.” What do the family and the whānau who are the victims of that crime think of that one? I think Sam Te Hei is a disgusting disgrace to Māoridom, quite frankly. The Leader’s Letter stated: “Colleen Burrow’s mother, Mrs Ida Hawkins, had this to say to the Parliamentary Select Committee: ‘He was sentenced to life imprisonment, he should never get parole. He should never get any compensation. Te Hei is a criminal, prison is for punishment and life should mean Life in Prison.’ ” There should not be any compensation. I wholeheartedly support Mrs Hawkins, and I want to make sure that people like Sam Te Hei do not profit as a result of murdering a New Zealand citizen and ending up in prison.

Another example is the murder of young Simon Reaney. I ask folks to think about how they would feel if it were their 7-year-old; how would they feel if that happened to one of their children? His murderer, Anthony Roma,—we all know of him, because he was front-page news at the time—was charged with the murder and sentenced to life imprisonment. There is also the case of William Bell, who was involved in the brutal murder at the Mount Wellington - Panmure RSA. He murdered one of our RSA members who fought for the rights of the people of this country, but who had to suffer being brutally murdered by yet another scumbag.

What did William Bell do? He was already on parole for aggravated robbery, having had 102 previous convictions, mainly for violence. Should criminals like that be allowed to seek, and to keep, compensation? No, I go along with my colleague Mr Ryall. In no way should such people receive any compensation, and if any money is left over it should be put into a trust for victims, not for prisoners or the people who committed the crimes.

Those people have been abusive and have failed to recognise all the human rights that exist in our society today. Surely, there must be a limit to the way in which they can profit from being sent to prison. Mrs Ida Hawkins, mother of Colleen Burrows, said: “Now he wants human rights!! Human rights are for human beings.” Te Hei was a disgrace to Māoridom. She said: “Tei Hei is not a human being.” He was an absolute disgrace, folks. Members of Parliament, members of the public, and Kiwis of this country know he was a disgrace to Māoridom.

In some cases, there are no specified victims, such as in drug-dealing cases or in cases where criminals might murder all members of the family. So in those cases, prisoners would keep all the money. In other cases, a person might be imprisoned for theft from an employer, and that person should be certain only of a civilised form of treatment in prison.

A view seems to be forming that although we do not want criminals to get anything if we can possibly be assured of that, nevertheless in a civilised society even criminals should be entitled to some form of civilised treatment. But if they do receive any compensation, then their victims should be the first to benefit. At the end of the day, it is a life sentence for the whānau as well, and any balance should be paid to a trust for victims. The Sensible Sentencing Trust’s submission was a long way along those lines.

I want to finish, after having spent time at the Justice and Electoral Committee, by thanking Tim Barnett for his fair approach to all members of the select committee. Ms Dalziel is not here; I do not know why. But I say that her expertise, and her longevity in this House, certainly showed out in the select committee. I apologise to Nandor Tanczos for not being there all the time, but that member sat beside me and I must say that his comments and input into the bill were worth listening to. I listened to Stephen Franks with his legal background, and also to Richard Worth with his English humour. I must say that he, our colleague from the National Party, with his English humour—

Simon Power: The member is not getting an award.

EDWIN PERRY: No, no. That is all right; it is not a problem. I want to finish by saying that the compensation that will be paid to those prisoners is, quite frankly, disgusting, disgraceful, and despicable.

I rise for the ACT party on this second reading of the Prisoners’ and Victims’ Claims Bill. This is the reported-back version from the Justice and Electoral Committee of a bill that came into the House about 6 months too late, after a grave embarrassment for the Government as people came to realise just what was happening. The bill came in after Christopher Taunoa got the equivalent of $500 tax-free a week for what a judge had decided was abuse of his human rights when in prison. Others received payment, also. The $55,000 that Taunoa received was awarded because he had been kept on something called the behaviour management regime, which had been introduced into Pāremoremo prison—after the authorities had just about lost control of that prison—for the worst criminals New Zealand had. It had been introduced to say, essentially that there are sticks and carrots that apply even in prison—that the prisoners have not taken control of that prison.

The judge heard claims from Taunoa that he had been treated cruelly, had had his human rights abused, and had suffered torture—because, for example, he had not been given a clean rag to wipe out his cell, and the windows had been left open too long in winter when it was chilly, and not long enough in summer when it was hot. He complained that lights had been left on and it had been hard for him to sleep. Some of those complaints the judge decided did not amount to torture, but the judge decided that, overall, Mr Taunoa deserved compensation of $55,000, or more than $500 a week, because his human rights had been breached.

One of the things about sitting on the Justice and Electoral Committee was that it was actually very hard not to be caught unmanned—not to be caught wiping away tears—when some of the victims came before us and asked in their own very eloquent way: “Why are we having the insult of even hearing this, when these beasts have murdered and taken away forever any human rights of our relatives?”. It is hard even to remember some of those presentations, because those people came to the committee absolutely incredulous that Parliament could even be troubling to think about doing this. They asked: “How can it be that the accident compensation scheme says we have no recourse, while these beasts are complaining about things like having only a dirty rag to wipe out their cells?”. They could not believe that the committee members were solemnly listening to the Minister’s officials addressing the committee on this issue.

I have to say the committee was doing a diligent job on all sides. I understand why Edwin Perry handed out plaudits to the committee members, because I think the committee tried as hard as it could to overcome the ideological bent of a Government determined to push through a completely fraudulent bill. The committee tried to find ways around the advice, and the advice was really simple in the end: it does not matter what the people of New Zealand want, what the members of this House might want to do, or what most of the members of the committee feel would be just—we cannot do it because there is no sovereignty left in this country. The august bodies in the United Nations, which Minister Goff wants to pontificate in front of and be applauded by, have said that it is not possible for New Zealand to abolish compensation to prisoners. We cannot do it, they have said.

Well, I think that most of us probably wanted to say “Get stuffed!”. We certainly wanted to have a reasonable answer for Mr Tai Hobson, who came before us and said: “Bell didn’t give my wife any conditions. Bell”—with 102 previous convictions, mainly for violence—“didn’t give my wife any mercy. Why am I told that he is to be paid, when the courts just tossed my case out before I could even start it?”. The court stated that he has no remedy, and we could not give him an answer. But the answer that is coming from Prime Minister Helen Clark—who probably wants a career like the one Mary Robinson has at the United Nations, when she has finished stuffing this country up—and from this Government is that it does not matter what New Zealanders want or feel. The international bureaucrats, and the torturers, the robbers, and the tyrants who put people on to the United Nations Human Rights Committee, have said that New Zealand cannot do it.

I believe that United Future deserves all the embarrassment and squirming that it is experiencing, because there is only one reason that the Government is getting this fraudulent bill through. It is that United Future has said it will vote for it. Yet the very true, eloquent minority report of United Future in the commentary states: “Whilst the bill has not achieved its overall intention to prevent one more cent of taxpayer money from reaching the pocket of prison inmates, United Future accepts that in the absence of a willingness to put aside spurious UN resolutions, or a willingness to restrict all remedies to those of a non-cash basis, this bill does the next best thing.” Then it does not tell us what the next best thing is.

The bill does next to nothing. The bill is a piece of political flannel. The bill is being debated and rushed through now because the Minister thinks that New Zealanders are mug enough to forget, during the 3 months within which the Government will have to call an election, what this bill is doing. The Government wants this over now and next week, because it cannot actually face there being any interest in it. We have no media present. There is not a single journalist covering this debate, yet it was a major issue when the bill was introduced. In other words, I think the Government is correctly calculating that its tactic will work. This bill is spent news.

I think of Tai Hobson. I think of a woman who called me from Hawke’s Bay and said that she could not give evidence as her son was living overseas because he had had the cheek to give evidence against the people who had turned his head into a football. She named one of the defendants—who was one of the Te Hei family that Edwin Perry mentioned—who had turned her son’s head into a football, put him out of work, and left him in hospital for a very long time. Those people rule in that area of Hawke’s Bay. Her son could not afford to have his mother come here and do what she wanted to do, which was to tell Parliament what she thought of Te Hei qualifying for compensation.

It is not just Taunoa; there has been a string of them. We never received the details. The Hon Margaret Wilson did deals with those prisoners secretly, and the Government has never revealed to Parliament exactly what those sums were. But the Government did confirm the totals that had been spent. In September 2000 we heard that $538,000 had been paid out in secret payouts for so-called human rights abuses, including payments to Rahēke, Te Hei, Michael Rātima, and John Gillies. The payouts were of between $40,000 and $90,000 each.

They were made because this Government is not willing to take on the judges of this country, either. The judges invented this financial compensation right for so-called human rights abuse. They made it up. They made it up after Parliament had decided not to include a right to compensation in the New Zealand Bill of Rights Act. They made it up because they think there needs to be an effective remedy. If prison officers have abused their powers—and I do not accept that it was torture or that it was serious—what sort of remedy is it, and what respect or regard does it create for justice, to impose a payment against the Crown that is to go to completely undeserving recipients of a windfall, when the real fault lies, if it lies with anyone at all, with a few prison officers who should be subject to disciplinary procedures? This Government has utterly lost control of its workforce. Its employment law means that it probably cannot sack those officers until they have tortured three times—if they ever tortured at all.

So we have to face these victims, and to apologise for a bill that is fraudulent in its intent—because the Government knows that it is unlikely to take a cent from any of the people who receive these windfall compensation payments—in favour of the Government being able to pretend that United Nations so-called human rights obligations are being met. ACT will vote against this bill, and we will do it with a sense of disgust.

I rise on behalf of United Future to address the Prisoners’ and Victims’ Claims Bill and to correct some of the misrepresentations that have been made of our position on the bill. Most obviously, for me, is the fact that if this bill goes through without amendment, it will be incompatible with the United Future policy on law and order, which is based on three principles: being tough on crime, being tough on the causes of crime, and—to my mind, the most important principle—placing victims first. This bill does not put victims first, so from my point of view it is utterly incompatible with that policy. However—and this is the part I think has been misrepresented—we will be supporting this bill through to the Committee stage, at which point we will be putting forward a number of Supplementary Order Papers. One of them, in particular, will be a bottom line for us. If it is not accepted, our support ends right there. That Supplementary Order Paper will, I believe, enshrine the victims-first approach. If, for whatever reason, that does not happen—if, for whatever reason, United Future nevertheless decides to support the bill—it will not be I who will deliver that vote. The House can count on that.

I turn to the substance of the bill. I do not want to lambaste the Minister of Justice for this bill, because I think that in many ways he has been put between a rock and a hard place. On one hand he has what I consider to be—and many would agree with me—spurious United Nations obligations. I understand that from the point of view of the Minister of Foreign Affairs and Trade, he has to uphold those principles. In a sense it is a pity that Phil Goff wears both hats and that they are in conflict with each other. In this particular instance, his role as Minister of Foreign Affairs and Trade conflicts with his role as Minister of Justice. The idea that we must sign up to international obligations and that that somehow supersedes our Parliament is fundamentally flawed. At the end of the day, Parliament must be the arbiter. Parliament must be the point at which laws for New Zealand are decided upon, not the whim of the Government of the day in signing up to international accords without the proviso of giving Parliament the ability to debate and support whatever those obligations may be.

I have also been accused, I believe, by the National member who spoke earlier of having allowed myself a bob either way, by taking a supportive view of the main body of the commentary on the bill and also stating a minority view. Let me just say clearly for the record that although I was the United Future member on the Justice and Electoral Committee for the purposes of this bill, I was not always at the meetings of that committee, simply because of my responsibilities in the other select committee of which I am a member. Had I been there, I would possibly not have included United Future support for the main body of the commentary.

Members will see that the United Future minority view outlines our major concerns. I have talked a little about the international obligations. On the issue of the compensation that needs to be provided for inmates there is no necessity, in my opinion—and I think in others’—that the compensation be financial. It is quite clear that there is a purpose for compensation: to be a punishment or a penalty imposed on the Department of Corrections for doing the wrong thing. I have no problem with that. But that the money should somehow be a windfall for the inmate concerned is, I think, the part of the equation that nobody can accede to. When an inmate is brutalised, the Department of Corrections and the people responsible for that brutalisation must be brought to justice, and they must pay the full penalty. But there is no reason to reward the inmate over and above reasonable compensation, which is not necessarily financial compensation. If there is a broken leg, let us mend it. If there are hurt feelings, let us give the inmate counselling. But we should not give the inmate one cent of taxpayers’ money, some of which comes from the victims of the crime he or she committed in order to find himself or herself there in the first place. I think that that is utterly wrong.

That applies to people like Taunoa, who received $55,000 for being subject to prison discipline. That man had slashed the throat of a person so badly that it exposed the victim’s spine. He is a threat to other inmates and to the guards. Not to put him away would infringe the human rights of the guards and other inmates. The idea that taxpayers must now front up and pay $55,000 in compensation as a result of a decision arising from that inmate’s own actions is an absolute affront to victims everywhere in this country. The point is that compensation need not be financial. That will be the sum of the Supplementary Order Paper that I will put forward in the Committee stage of this bill.

The simple fact is that we have heard from a number of victims many times over that they did not necessarily want the offender to be put at risk in prison, but they did not want to have an ongoing legal relationship with the offender, either. Victims want to get on with their lives. The idea, simple though it sounds, that if an inmate does get compensation the victim can then go along a legislative path to take some or all of that money is actually repugnant to victims. They simply want to get on with their lives and heal from the crime that has been committed against them. I understand why the Minister of Justice is to allow the opportunity for victims to take legal action and claim the money. He, like everybody else, finds it repugnant that inmates should be rewarded for choosing to commit crimes, getting caught for them, and being put in prison. But this bill is clearly not the way to address that.

At some point we have to say that the rights of victims and the obligations of the Government to victims and to law-abiding people in this country must supersede any international interest. That has to be absolutely rock-bottom. Compensation should not be seen, as this bill suggests, as a payment to the inmate but as a penalty against the correctional institution and the people who perpetrate the offences. As I said before, we will vote in favour of this legislation going forward to the Committee stage. Our obligation to support it goes only to that point. I will put forward a Supplementary Order Paper in the Committee stage, and our support thereafter will be conditional on it being agreed to. Otherwise, I will not be in this Chamber to give the vote for United Future.

I start by saying that I think all people—certainly, all members of the Justice and Electoral Committee—agree that the circumstances that gave rise to those compensation claims should not happen. I think all members of the select committee were moved by the position taken by the victims who appeared before it to speak on the bill. None of them took the view that inmates deserve whatever they get and that there should be no sanction for the abuse of prisoners when they are in the custody of the Department of Corrections. That is right, because, of course, that view would lead to the atrocities we see occurring in many prisons around the world. For that reason, the Greens very strongly support one recommendation of the select committee—outlined in our commentary—that the Government should begin some scoping work to investigate the setting up of an independent prison complaints authority.

Of course, that is not a new idea—it has been advocated for a very long time by organisations like the Howard League for Penal Reform. During the passage of the Corrections Bill there were some very strong submissions to the Law and Order Committee calling for an independent prison complaints authority. It is something that the Green Party has been outspoken on for quite a long time. I know that there has been some examination of it by the Government, and I commend that.

It is important that some of that work begins, although there have been changes in the way the Department of Corrections works. Amendments have been made to the Corrections Act, and the Greens were instrumental in adding some safeguards into that Act. The Department of Corrections has a new chief executive, and I think we all await with interest the effect that man will have on the culture within the prison service.

But it is clear that the best protection against compensation claims is to stop these abuses happening in prisons. That is one of the few things that the Greens support in terms of the report back from the select committee. We do not support this bill. We believe that the only real way to get the Department of Corrections to clean up its act is to ensure that there is an effective remedy for inmates who are abused when they are in the custody of the State.

Really, that is all that the international conventions are saying—that there must be an effective remedy. When we are talking about the power of the State being brought to bear on people within its custody, there are very few real levers that can be used. There are very few ways of cleaning up a department that is as monolithic, closed-shop, and secretive as the Department of Corrections has shown itself to be. The Greens very strongly believe that we must maintain provision for an effective remedy. I know that some parties in this House are not interested in international conventions. They pay no regard to them—at least when they are in Opposition, and at least verbally. Tim Barnett has pointed out the position of the National Party, which denounces international conventions when in Opposition, but, of course, when it is in Government it upholds them, because it knows that it is not just a question of rhetoric in the House; it is about the standing of this country, Aotearoa, in the eyes of the world and that is important.

Yet some parties have no interest in international obligations and assert that they should not be a constraining influence on the Government. That is not something the Green Party supports. In fact, I would call that the George W Bush view of international relations—the idea that those international conventions and protections apply only to the people we like, and not to the people we do not like. That is the path to Guantanamo Bay; that is the path to Abu Ghraib. International conventions are an important measuring stick against which we as parliamentarians can evaluate the legislation we pass. In contradiction to what Marc Alexander said, it is our commitment to human rights conventions that is enduring, not the variable whims of the Government of the day.

I will read some words from the submission made by Victim Support, because I think they sum up the Green Party position extremely well. I ask members to excuse me for reading from something that is available to them, but I know that they are too busy to read the submissions made to every select committee we have. I think that members listening to the debate will find these words particularly instructive. As I said, this is from the submission made by Victim Support:

“That a prisoner should receive compensation for a breach of rights when the victim of that individual’s original offending has had no such acknowledgment or received no redress for the harm they have suffered is repugnant to Victim Support and to what seems to be most of the New Zealand population. Such a blatant imbalance of rights would offend the sensibilities of even the most demure of persons, as reflected by the way in which it appears to have already raised the ire of most of the community at large—a situation in which the mass media has undoubtedly added further fuel. Victim Support does not, however, accept that the remedy for the situation lies within the provisions contained in the Prisoners’ and Victims’ Claims Bill.”

The submission further states: “The solution to the situation lies not in lessening the rights of victims of abuse of power to seek redress for harm done, but in strengthening the rights and abilities of victims of crime to access restitution or compensation for the harm done to them. Putting it simply, two wrongs don’t make a right. As a society we should be more intent on preventing abuses of power from occurring than on mitigating against the obligation to provide compensation when it does. Any softening of our intolerance to abuse of power and corruption not only increases the vulnerability of individuals but diminishes the moral and social fabric of our society, which will ultimately result in more victims.” I think that that is a very powerful message to the members of this House who say that we should just strip prisoners of all rights of redress.

The submission goes on to state: “Victim Support strongly recommends that a fund be established whereby offenders can access a loan from the State similar to that provided to students to enable them to pay immediately any reparation awarded to the victim. In this way any windfall received by the offender, be it through compensation for harm done while incarcerated, or through winning the lottery, could be legitimately claimed by Government as repayment of the debt owed. Such a scheme is inherently fairer to all victims and does not diminish the rights of any individual.”

Although I am not sure that that is exactly the answer, the select committee did actually spend a lot of time looking at how one could provide a scheme that genuinely addressed the harm suffered by victims, that did not provide restitution on the basis of whether the offender who harmed them had been abused while in custody and therefore got a payout, but that treated victims of crime equally according to the harm that was done to them. We spent quite a bit of time, and I was quite hopeful that we might come up with a solution that would allow the Greens to support a measure that would genuinely put the interests of victims first, without taking away the obligation and the necessity for a right of remedy for people who are abused while in the power of the State. I think it is unfortunate that we were not able to do that; it is outside the scope of this bill, and it would take an enormous amount of policy work. So we accept that it cannot be done as part of this bill.

We think it is a shame that that was not the approach taken by the Government. We think that would have been a lot better. I think the select committee is very concerned to do some further work on how we can genuinely advance the role of victims within the criminal justice system. Of course, it is the view of the Green Party that as long as we retain an adversarial system of justice, the rights of victims will always be in second place.

In rising to take a brief call in support of the second reading of this bill, I think it is pretty clear that most people believe it is wrong that offenders should be compensated for wrongful treatment, and then in turn not be required to pay restitution to the victims whom they harmed—the harm to those victims, of course, having made them prisoners in the first place.

The bill sets out to do two things: first, to ensure that prisoners can be compensated only in acceptable cases after they have gone through all possible avenues of complaint; and then, second, it sets out opportunities in terms of assistance of victims to pursue compensation from those who have offended against them, so that the victims have access to any compensation paid in that regard. So I support this bill.

I was not a member of the Justice and Electoral Committee, which heard submissions on this bill, but have listened with some interest to the contributions made by Tim Barnett, Stephen Franks, Edwin Perry, and Nandor Tanczos, who were, I guess, fortunate enough to hear the contributions made, particularly by victims of horrific crime and victims’ families. Tony Ryall has done a substantive job of outlining the reasons why the National Party will not be supporting the second reading of this bill—and I will come to those shortly.

After Minister Goff spoke at the start of the second reading, I raised a point of order over a concern I had about the use of minority reports, and about the way the United Future party had tried to have a bob each way. Well, who would have thought that the can of worms that has opened up in this House in the last 20 minutes would have been as a result of my requesting a considered Speaker’s ruling on that matter? In my 5½ years here—I came in with Stephen Franks and Nandor Tanczos in the intake of 1999—

Clayton Cosgrove: Oh!

SIMON POWER: Oh, and Clayton Cosgrove. The intake of 1999 was a fine vintage.

Mahara Okeroa: Hey!

SIMON POWER: Oh, and Mahara Okeroa. My apologies. I have never heard—[Interruption] Oh, and the Deputy Speaker, Ann Hartley. I have never heard a speech from a member of a political party that indicated such open defiance for the position that a party took with respect to a report back on a bill.

I say to Marc Alexander that I congratulate him on finally, after 2½ years, on having the courage to stand up and say things like: “This report back is incompatible with United Future’s law and order policy.” That is what he said in his contribution. He said that of the three main pillars of United Future’s law and order policy, the last—and in his view, the most important—was “victims first”. He went on to say that this bill does not put victims first. He said that in this House. Then he went on to say that it was incompatible with United Future’s law and order policy. But in an open display of what I can only describe as being raw political courage, he stood in this House and said that if his proposed Supplementary Order Paper is defeated in the Committee stage, it will not be him who comes down to the Chamber and delivers the vote.

This is a member who, I am told, wrote the United Future minority report for the commentary on the bill. It is the most extraordinary set of circumstances when United Future’s law and order spokesperson—somebody who, I have to say, is pretty highly regarded by this House, in general terms—comes down to the House and, with his colleagues sitting near him, says that it will not be him who delivers the vote on behalf of United Future if this bill stays as it is. He has come down to the House and said that this bill is incompatible with United Future’s law and order policy.

But in the report back, on page 2, the majority report refers to “most of us” as being “Labour and United Future members”. So the situation that United Future finds itself in with this bill is extraordinary. I urge the other members of United Future to display the same political courage that Mr Alexander has displayed and to refuse to come down to the Chamber and vote in favour of the bill if its Supplementary Order Paper is denied.

Although Mr Alexander honestly conceded that he had not always been at the select committee when it met on this bill—because a smaller party cannot make those select committee commitments, nobody holds that against him, and I would not do that for one moment—he says he believes that the result of the report back was incompatible with United Future’s law and order policy. What an extraordinary position United Future is now in.

Clayton Cosgrove: Extraordinary!

SIMON POWER: Mr Cosgrove is using the same adjective that I am using. We now have a public display in the House as a result of United Future’s spokesperson on law and order coming to this House and saying that he will not be the person who delivers the vote on this bill. I cannot understand how on the one hand United Future says that it is with the majority on this report, but on the other hand its minority report indicates Mr Alexander’s views, not the views of the rest of United Future’s members.

We are now in an extraordinary situation where the public will be completely confused about what United Future’s position is. I know that members of this House who follow Mr Alexander’s views on law and order will applaud his courage in standing by his convictions, but at what cost will that be to his prospects in United Future? When bills are drafted as a result of embarrassment to the Government, sloppy law emerges.

The National minority view contained in the commentary is concerned with two of those drafting difficulties and uncertainties. The question is this. When funds are made available to victims, how will those damages be apportioned? How will those decisions be made? As the minority report points out, in the case of a serial offender, will those damages be awarded equally, or will they be awarded to those victims who have supposedly suffered more than other victims? What if the victims concerned comprise a very large class of people? For example, in the case of an offender who is a drug dealer, and drugs have been sold to many people, how will those people be tracked down? What damages will they be entitled to?

National believes that there is a clear case for an independent prison inspector, and has stated that in the minority view. I just say this: Government members and Opposition members will be watching with interest in the Committee stage of this bill, and we will be waiting with interest to see the Supplementary Order Paper to be presented by Marc Alexander. We will be waiting with interest to see who delivers the vote for United Future.

Just dealing with some of the points raised by the last speaker, I note that Marc Alexander thinks this legislation should go further. I disagree with that. I think the position that has been espoused by the Minister of Justice is quite right—that it should not go further; that there are human rights implications of going further; that there are international law obligations—

Stephen Franks: Why aren’t members who know something about it speaking on it?

DAVID PARKER: Actually, I am happy to take a call to test my knowledge against Mr Franks’. It is always fun.

Those who say that this does not go far enough to take away the rights of prisoners who have been abused in prison are wrong. We must always acknowledge that, in the worst circumstance, it is possible for a State to torture people. Were a State to do that, then the compensation that the tortured person might eventually get from the State should not be able to be taken back by the State for itself or, indeed, for the benefit of some other person, necessarily. So I do not think the bill should go any further than it does, and I disagree with Mr Alexander on that point.

I also note that although Mr Powers’ prior contribution said a lot about Mr Alexander’s contribution, he did not go so far as to suggest that the bill should take all rights away from inmates.

I am looking at the clock and I see there are only 2 minutes to go, so I will start by reiterating New Zealand First’s minority view. It is really interesting when one picks up a report from a committee that one knows includes members from the Labour Party, National, New Zealand First, the Greens, ACT, and United Future, and one finds that every party except Labour has expressed a minority view in that report, against the bill. It will make interesting commentary on the hustings when the people of New Zealand see that, because it really is confusing.

Stephen Franks: It’s the minority view of the majority.

RON MARK: I think I shall wait until we come back to the House, so that I can use my other 8 minutes to have an uninterrupted speech. I simply say that New Zealand First will oppose this bill. New Zealand First was inclined, and said so at the outset, to support this bill. But with the Government’s refusal to establish a victims’ claims rehabilitation account, into which all moneys would have been paid—leaving the inmates with nothing—we can no longer give this Government our support on this bill, at all. We will oppose it in the Committee, and we will oppose it going through the House.

Debate interrupted.

The House adjourned at 6 p.m.