Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — Second Reading In CommitteeText is incorporated into the Bound VolumePrisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — Second Reading In Committee[Sitting date: 08 May 2013. Volume:689;Page:9731. Text is incorporated into the Bound Volume.]Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment BillSecond ReadingHon CHESTER BORROWS (Associate Minister of Justice)on behalf of theMinister of Justice: I moveThat the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill be now read a second time. Let me first extend my thanks to the Justice and Electoral Committee for its work on this bill. The committee received seven submissions on the bill and has recommended that it proceed without amendment.The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill makes three main changes to the Prisoners’ and Victims’ Claims Act 2005. First it repeals the sunset clauses in the Act so that the Act will no longer effectively expire. Second it makes a small change in the civil limitation periods for victim claims for their benefit. Third it clarifies that the Act applies to unlawful detention claims. The Prisoners’ and Victims’ Claims Act 2005 provides for awards of financial compensation to be made to prisoners only in extraordinary circumstances where no other remedy is deemed appropriate. Prisoners are also required to make use of the existing complaint mechanisms that are available to them before they seek compensation through the courts. If financial compensation is awarded to a prisoner or if a settlement agreement is entered into the Act requires that deductions are made to pay any legal aid debt in relation to the claim any outstanding reparation and any earlier orders in favour of victims. The Act then allows victims of the prisoners to claim against the money through a simplified victims’ claims process.Without this bill the Act would effectively expire. The statutory guidelines and restrictions on awarding compensation and deductions and the simplified victims’ claims process would no longer apply to prisoners’ claims lodged from 1 July 2013.The bill will ensure that the judiciary has clear guidance on the circumstances in which Parliament intends that compensation should be available to prisoners. This will avoid any potential inconsistency. The bill will also ensure that victims continue to have first claim against any such compensation awards to prisoners.The Act responded to community concerns that offenders should not receive financial compensation for wrongful treatment without first having to redress the harm that they themselves have caused to victims. The simplified victims’ claims process does not create any new rights for victims to bring claims. The victims always have the option of bringing a civil claim against their offenders. However the victims’ claims process provides an easy and cost-effective way for them to do so in circumstances where the prisoner has the means to pay at least some of the damages due to the victim and while the Crown has control of that money. The bill also ensures that victims will not be disadvantaged by any administrative delays that stop the clock on the civil limitation period for victims’ claims while the Ministry of Justice assesses the level of deductions to be made such as for legal aid payments and where necessary resolves disputes about these amounts.Finally the bill includes a clarification for the avoidance of doubt that the Act applies to prisoners’ claims of unlawful detention. These claims arise from time to time generally when a prisoner is held beyond their statutory release date due to an administrative error. It always has been the intent and practice that unlawful detention claims like other breaches of prisoners’ rights be subject to the Act. The best way to prevent compensation payments is to ensure that abuse does not occur. Prison mistreatment will not and should not be tolerated.I would like to reiterate that the Government has great confidence in the ongoing integrity and professionalism of corrections staff working in New Zealand prisons. However if breaches do occur it is important that we have a fair and appropriate regime that balances the rights of prisoners and their victims. This bill provides for the continuation of that regime. I commend the bill to the House.ANDREW LITTLE (Labour): I appreciate the opportunity to speak on the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. This legislation had its genesis in the previous Labour Government. It was a response to a very precise very confined situation where a group of prisoners because of the way they had been treated by the prison system made a claim under the New Zealand Bill of Rights Act under the precedent case—theBaigent case—and as a consequence of that were awarded damages. These were criminals who had committed crimes of a very serious nature and they were criminals whose victims would not at the time of the trial and conviction of those prisoners have ever thought that there was any value in pursuing a civil claim against those prisoners. They had no claim for personal injury but they might have had a claim for exemplary damages for their conduct.That has always been the nature of our criminal justice system and the victims of it. But that was a different situation where prisoners had won significant damages as a consequence of what had happened to them while they were incarcerated. It was simply repugnant to the community’s notion of justice that people who had inflicted considerable harm and injury on other citizens should because of the circumstances of their incarceration achieve a windfall gain whereas their victims got nothing apart from their entitlements from the accident compensation scheme and any other State-funded assistance they got. So it was absolutely correct for the Government of the day to pass legislation to correct that obvious injustice.None of that is to say—as I think the Associate Minister of Justice said in his opening speech—that we do not strive to ensure that our corrections system our system of incarceration is one that does not lead to abuse of those who are being incarcerated those who are in the Crown’s custody serving out a punishment. We must do that but it would be wrong for those who are harmed by the Crown in the course of being penalised by the Crown to then gain a windfall when citizens who are the victims of those who gained that windfall should have no claim at all. I have no personal difficultywith a regime that provides a greater sense of justice for victims and a signal to all other citizens that the person who has caused a victim harm damage or death should not be the beneficiary of some greater claim in the future.So this law was very important and it was very important that it should spell out that the courts require that in the event of a future claim by prisoners who are claiming abuse in the prison system they should exhaust other sources of remedy. They should go to the Ombudsman or they should go to the system within the Department of Corrections and utilise those forums before they seek redress in the courts. It is also right that we should ensure that we have an effective mechanism to ensure that any abuse of power in prisons is properly redressed. If there are concerns about the existing regime that we have then let us hear those concerns and let us consider what may need to be done. It is only part of our obligations as an international citizen that we ensure that those who are incarcerated by the State are not subject to abuse and torture.Having said all that—and we will support this legislation—I want to place on record our concerns and the first is that the original legislation was time limited. It was assumed that there would be and it was intended that there would be a review of the sort of regime that would deal with victims’ rights and with what happens to prisoners—but most important with victims’ rights. Indeed in one of the more recent renewals of the legislation of the continuations of it an undertaking was given by the Government of the day—this Government—that there would be a review and that other parties would be consulted on it. I have to say—and it may not be the fault of the Hon Chester Borrows who moved the second reading motion—that the reality is that none of that happened. There has been no consultation with other parties and there has been no review. So we are now stuck with a piece of legislation that was designed to deal with a specific situation a specific injustice perceived by the community which raised issues about the broader justice system but most important raised issues about our system our regime of victims’ rights. That work still remains to be done to ensure that we have a system of victims’ rights that is robust and that respects the various positions and standings of the parties concerned.There are some alternatives. There are some who argue that the provisions in this bill should be extended to any windfall gain that a prisoner gets whether it is a bequest as a result of a family member’s death a win in Lotto—although quite how a prisoner incarcerated at the time could buy Lotto tickets defies explanation to me—or any other windfall gain. I do not go that far but what I do say is that a more progressive and comprehensive system of justice that is looking firmly at victims’ rights might say that there are different ways of approaching it and that redress can be provided to victims once a penal sentence has been served.In most cases in the majority of cases prisoners—those who are doing serious time—will get to a point where they have done their last penal servitude and they get released. Because of a progressively changing corrections system we are now getting people back in the community without recidivism. They do not repeat their crimes. It is not too much to say of those who have caused significant harm and damage to others that they may have an ongoing responsibility through their future earnings to provide support and assistance to those to whom they have caused that harm. I do not think it is beyond the realms of a broader system of justice to look at something along those lines. There may be a trade-off in the length of sentences if indeed somebody having served a sentence goes into paid work and as part of their contribution to the community makes amends for the harm they have done and has a further surcharge on their earnings to make good the damage they have done to their victims. I do not think it is beyond us to do that. That would be fair. It could be considered at the time a judge is considering the sentence. It is a matter that could be followed up and could continue to beadministered by either the corrections system or indeed the Inland Revenue Department—on which we are about to spend $1.5 billion on a computer system that should be able to handle at least that.We support this legislation because it continues its confined approach to a confined problem but it does not answer the real problem which is a broader answer to the need for a comprehensive regime a cohesive regime of victims’ rights in order to compensate those victims who have suffered harm beyond personal injury which is compensated for through our accident compensation scheme and who have suffered other harm and damages as well that ought properly to be compensated for. Leaving in place this system makes that a lottery because the victim can recover compensation only if the perpetrator of the crime or violence against them is somebody who suffers their own violence in prison at the hands of the prison system. That as we know does not happen to every prisoner. It happens to a very small percentage of them—in fact a very small number as was evidenced in the particular case that triggered this legislation theTaunoa case.We do not want a victims’ rights regime that is essentially a lottery system; we need one that is based on coherent and considered thought. Coherent and considered thought has not gone into this legislation. It is simply being rolled over with some clarifying amendments. It does not address the fundamental problem. That was the undertaking given by this Government when it rolled this legislation over the last time. It has not fulfilled that undertaking. Even though this is an open-ended piece of legislation now I prevail upon this Government and the Minister who is in the House to take seriously the wish from all sides of the House to get and have in place a sensible system of victims’ rights in order to put to bed once and for all the repeated claims of injustice being suffered by victims. Notwithstanding all that we will support the bill.SCOTT SIMPSON (National—Coromandel): It is a pleasure to stand and take a brief call in support of this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill in its second reading. At the outset I would like to acknowledge the support from the previous speaker Andrew Little on behalf of the Labour Party which is going to support this good piece of legislation. Of course the purpose of this bill is to make the restrictions on awards of compensation and the victims’ claims process in the principal Prisoners’ and Victims’ Claims Act 2005 permanent. As Andrew Little said it is—and I am sure he did not mean to make a pun—a confined solution to a confined problem and it is a good solution.Mr Little talked a little about the—I did not mean that. I did not mean that actually; it is early in the morning. Mr Little did say in his presentation that a review should have taken place. Well of course there is not much need for a review when a system and a piece of legislation are working very well. The Government I am very pleased to say is satisfied that this scheme is working well. The scheme represents our commitment to victims and the focus upon victims who are of course participants in our criminal justice system completely as a result of other people’s actions and not their own.This is a Government that I am part of and we are committed to ensuring that victims are supported and the scheme that we are supporting today achieves that endeavour. We make no apology at all for focusing our justice system on the rights of victims. It is right and appropriate that we should do that. As chairman of the Justice and Electoral Committee I was very pleased with the way the committee worked through our deliberations on this bill. The committee received seven submissions and recommended that the bill proceed without amendment. I speak in support of the bill. It is a good bill. I commend it to the House.Hon PHIL GOFF (Labour—Mt Roskill): I rise to take a call on the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. There was an unfortunatecomplacency I think in Mr Simpson’s speech when he said that the scheme was working well and is looking after victims. I beg to differ. I beg to differ from the perspective of one who introduced this legislation in the first place and had it legislated through Parliament.The reason I put a sunset clause in the legislation back in 2005 was that I wanted to review the scheme to see that it was doing much more than just being a stopgap measure against windfall profits arising out of theTaunoa case. I wanted to be sure that victims were properly compensated by those who offended against them horrendously when the criminal offender was in a position to provide that compensation. As it works out the legislation probably had a prohibitive effect in terms of some gold-mining lawyers on behalf of some really hard-core criminals but it has not raised a lot of money for victims. I think it was about $45000 from memory.There seemed to me to be a lot of people—not just the vicious blue-collar criminals who were never compensating their victims but another whole category of criminals. These Mr Simpson are the people the National Party knows better—the rich and the powerful the reckless and the greedy. [Interruption] They are the white-collar criminals—Tau Henare knows exactly whom I am talking about—who rip off people’s life-savings. The member will have as I have in my electorate people who have lost their entire life-savings because of the greed and the recklessness and the criminality of people who might have gone to King’s College who have big houses on Paritai Drive and who have all the privileges in life but are criminals nevertheless.I say that when those rich and powerful and privileged criminals rip off people of their life-savings you cannot just put them in jail for 2 years allow them to protect their savings in family trusts and then let them come out of jail and get on with their high lifestyles while their victims go to their graves penniless because they ripped them off.I say that absolutely nothing in this legislation addresses that class of criminal—absolutely nothing. And yet we have seen in the last 5 years time and again people like Petricevic or whatever his name is—he ripped off people in the 1980s and ripped them off again in the 21st century—who get out of jail after a while and are living the high lifestyle. They stole not bits and pieces out of houses like burglars do; they stole hundreds of millions of dollars. They did not steal because they were underprivileged; they stole because they were greedy—Hon Anne Tolley: What did your Government do while it was happening? Sat there and twiddled their thumbs.Hon PHIL GOFF: —and yet they get away with a situation where they never pay their dues Minister. They never pay their dues to society. The reason that I put a sunset clause in the legislation was not simply to stop windfall gains for people who are rotten criminals who never gave any compensation to their victims. That is why I did it in the first instance but I put the review clause in to ensure—Hon Anne Tolley: That Labour Government did nothing—watched it happen.Hon PHIL GOFF: Look I hope the Minister will take a call to explain herself and justify herself because the sunset clause was there so there would be a review so that you Minister—The ASSISTANT SPEAKER (H V Ross Robertson): Order! I am sorry to interrupt the honourable member. There are interjections taking place between members who do not have the call and that is out of order. I know Mr Goff is making a strong robust speech but that does not mean that members from this side and that side can interject on each other. If you want to interject on Mr Goff that is fine but not on each other.Hon PHIL GOFF: It is really sad that over these debates time and again members on the Government side fail to take a call and do not show the “intestitudinal”fortitude—I think that is a word for guts—to get up and debate the bill but they will sit in their seats and interject continually. What I am saying to the Minister who was interjecting is that the sunset clause was for a review so that we could see how we could get this legislation working better for victims.The legislation has expired a number of times. Did the Government ever use the opportunity to be imaginative to show its commitment and its determination to support the rights of victims by getting a piece of legislation that dealt not with a tiny minority of cases in prison—cases where the corrections department got it wrong and was forced to pay compensation—but with the wider spectrum of criminal offenders who never set things right for their victims? I am a strong believer in restorative justice. What restorative justice means is that the offender sets things right for the victims. My colleague next to me Mr Sio knows the system of ifoga in Samoa which is based on a person showing remorse and trying to put things right for the victim.Peseta Sam Lotu-Iiga: Say sorry for breaking the law.Hon PHIL GOFF: Mr Lotu-Iiga will know that system. He should know about it. In terms of restorative justice it is really important that the offender shows remorse—genuine remorse—but that is not very concrete. What is concrete is whether the offender is able to make a reparation payment. It is too often the case with our offenders that they come from dysfunctional backgrounds they have no savings and they have no income. When they are locked up in prison they have no ability to pay and in most cases victims get nothing back from their offenders. That is a fact of life. You cannot get blood out of a stone.What you can do if there is a windfall profit by an offender such as through the compensation cases that followedTaunoa and if they have got money is you can get it and you can give to the victim. Or if somebody wins Lotto in prison—you know they are sitting on a million dollars and they have done grievous damage to their victims—then they should be required to make a payment when they are able to. That is common sense. That is justice in the real meaning of the word.The reason why I focused before on the white-collar offender was that after the global financial crisis which revealed the recklessness and the greed of those white-collar offenders a number of them have ended up in prison and they are the very people who could be required to make compensation maybe not at the time they are in prison but thereafter.There are people who were in prison in the 1980s and who are now very wealthy businessmen again. Have they ever done anything to set things right for their victims? The answer is no. They are back sipping their cocktails living in their mansions driving their flash cars when they have driven other people into poverty at the end of their lives. I resent that. I deeply resent that. I resent it because I have represented constituents who have been placed in that situation—worked hard all their lives to get their savings and maybe somewhat naively put their money in particular institutions that were not sufficiently blue-chip. But they did it in good faith. They believed the promises that were made. They had their savings ripped off and the people who did it to them never paid their dues. Although we will support this legislation reluctantly because those who get windfall profits in one way—Scott Simpson: After all that?Hon PHIL GOFF: No Mr Simpson you should have listened. That is one of your problems as a new member. You have not learnt to listen yet. The Government could have done more than simply raise $45000 for victims. It could have raised tens of millions of dollars to be paid back to victims if it had been imaginative in the sort of legislation it put through. It could have got those white-collar criminals who ripped offtheir fellow citizens to pay their dues. It could have got them to indulge in restorative justice and set things right for those who have suffered.So my objection to this legislation is that it does not go anywhere near far enough. It is faint-hearted. It lacks imagination. Members on that side of the House do not live up to the rhetoric they use on the campaign trail when they say that they stand up for victims. This legislation does nothing for most victims.Hon Trevor Mallard: It’s weak.Hon PHIL GOFF: It is weak. It does not do what the Government could have done if there had been a proper review if it had worked through the options and if it had got its officials working hard in the 4 years that it has had in Government to actually put something in place that would see a far wider extension of looking after the victims ensuring restorative justice and ensuring that people who rip off others are required to put things right when they are in the position to do so. On all of those measures this legislation fails and that is why every member of the Government has got their head down at the moment because they know the truth of what I am saying. This is weak legislation. It could have been much better.DAVID CLENDON (Green): It is a little bit likeGroundhog Day. There is a very strong sense of déjà vu in yet again standing to speak to prisoner and victim matters and the latest iteration of this legislation the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. We have had a—Hon Trevor Mallard: And it’s got yesterday’s date on the wall.DAVID CLENDON: Indeed it has yes. That will be part of the problem I am sure. The principal piece of legislation was first put into place in 2005 as a stopgap measure as a response to the political necessities of the time perhaps in order to endeavour to placate perhaps a very rowdy minority in the public who were objecting to some of the actions that were being taken. Mr Goff just spoke and I must say I am somewhat puzzled to hear such powerful objections to this legislation from the Labour side. I look forward to those members switching their vote and actually opposing this legislation in line with the speeches they are making. This legislation has not worked. It has not been effective in returning value to victims and fundamentally it denies human rights. It is an abrogation of human rights. It is not acceptable in a country that as we have heard this morning rates very highly in terms of our commitment to the rule of law and where we rate ourselves as being a country where corruption is not seen and where we respect and honour everybody’s human rights. This legislation is an offence to that and we will continue to oppose it.The fundamental intention of this legislation is to deny restitution to people whose human rights whose basic rights may be abused while they are in the custody of the State. We have seen instances of that where indeed prisoners and inmates were actually tortured over extended periods under the behaviour management regime that led to theTaunoa proceedings. The court found very clearly and made very strong rulings that the treatment of those men was absolutely unacceptable in a country that calls itself civilised and a country that commits to human rights. It is unacceptable and this legislation is equally unacceptable.I think that the notion that the public was demanding that prisoners inmates and people who have offended ought not to receive any restitution is not based on particularly strong evidence. It is clear that there was a very punitive approach in the air in the mid-2000s and to some extent that still prevails but you have to scratch only an inch below the surface in talking to members of the public in talking to NGOs and reading the public pulse. People are more intelligent than that. They understand that people do not lose their human rights simply because they have offended and because they have been imprisoned. If we are truly committed to that then everybody should beentitled to restitution if their rights are abused while they are probably the most vulnerable people in our society those who are in the custody and the care—I use the word loosely—of the State.Mr Borrows the Associate Minister of Justice in introducing this second reading pointed out that we have a solution available to us. If we do not want to see inmates receiving compensation for abuse let us create an environment where those abuses will not occur. It really is as simple as that. We do not need this particularly vicious piece of legislation; we simply need to ensure that our prison system is run in a humane manner that it is run in a just manner that human rights are respected and maintained and that even minor transgressions of human rights are not accepted so that this sort of legislation need never be triggered. It is not beyond our wit to create a corrections system where prisoners’ rights are protected and maintained.I have to acknowledge that there is some good work being done in the corrections system and the corrections area. The new Chief Executive Officer of the Department of Corrections Ray Smith—not so new now—is working very hard to change the culture and he is having some success in that. But he is trying to steer a very cumbersome very complex very slow-moving vessel trying to take it to a better place and we are nowhere near there yet I would have to say.I think we need only look at some recent examples. A senior corrections officer is quoted today in one of the papers—I think theDominion Post—as saying that the management of maximum-security prisoners is constantly evolving to better assist prisoners towards a crime-free future. I am afraid that that is rather an idealistic and simply an unsustainable proposition given for example what is currently happening in D Block the maximum-security block at Pāremoremo at Auckland prison where for a period of some 3 months over this very hot summer we have had prisoners in the maximum-security block were denied outdoor exercise. For 3 months those men did not get in the fresh air did not get sunshine on them. Imagine what that does to people’s mental and physical health—being denied for over 3 months that minimum requirement of simply 1 hour in the fresh air. That is completely unacceptable. What is that going to do to their attitude to their level of tension the level of stress within that already fairly volatile environment that is a maximum-security wing?As we speak for the last 6 or 8 weeks prisoners in D Block have been washing their clothes in buckets because the laundry facilities have been removed and have not yet been replaced with new laundry facilities. If they send their laundry to other wings only half of it comes back. That has been confirmed by the acting manager of the prison. They do not have that fundamental very basic and simple assurance that their personal property will actually be secure and returned to them. As a result we had an entirely unsatisfactory situation where prisoners were endeavouring to clean their clothes and their bedding in buckets of water without so much as soap or soap powder being issued to them. That is an unacceptable situation in the 21st century.Are we trying to stir up more stress in our prisons? Are we trying to increase the frustration levels of these already volatile men by depriving them of those basic human dignities of clean laundry and a breath of fresh air for 1 hour out of every 24 hours? Are we deliberately trying to create situations where we will get outbursts of violence in our prisons? Mr Kim Workman who made submissions to the Justice and Electoral Committee in February this year—a man with an extraordinary depth and range of knowledge about our prison systems—made the point that prisons will be made safe when prisoners observe that they are being treated fairly and decently.Anybody who believes that our prisons are holiday camps clearly has never been inside one. Prisoners do not expect to be coddled. They know they are not there to enjoy themselves. They accept that. But prisoners also know what is reasonable what is fairwhat the minimum legal requirements are and what the minimum requirements are in terms of human rights. And we are not meeting those requirements. A safe prison is one where prisoners feel that at least their basic humanity is recognised that they are being treated fairly. That environment becomes safe.Mr Workman went on—and I am paraphrasing him here; I am not quoting him directly—to make the point that we have a very poor culture and a very poor environment historically in our prisons and one day if we do not do something to do better our prisons will blow up and we will not know what struck us. We are seeing already expressions of that. Over the last 12 to 18 months there have been five or six quite serious incidents in our prisons at Rangipō prison at Hawke’s Bay Regional Prison at Pāremoremo prison. These are becoming quite commonplace. The Department of Corrections’ response to the latest at Rangipō prison for example was to actually deny that it was a riot despite the fact that 11 men were involved and 11 men were relocated. We are seeing these constant incidents quite serious incidents occurring in large part because we are failing to create a safe and humane environment in our prisons.The legislation that is being advanced today embeds this extraordinary proposition that prisoners should not be eligible for restitution if the State violates their human rights even to the extent of physical abuse and torture—nevertheless prisoners ought not to receive compensation for that. This legislation that we are making permanent today does nothing to make our prisons safer. It will do virtually nothing to protect or enhance the rights of victims. We need to have a comprehensive review of how we can assure that victims of crime in New Zealand are treated as well as we can treat them that the offence against them is made good and that the emotional the physical and the mental trauma they suffer is remedied to the extent that we can do that. This legislation does nothing. It is silent on that. There is no means in this legislation to protect victims beyond the most superficial perhaps way that could be possibly imagined.We need as was promised and intended in 2005 to look at the rights of victims remembering also that many of our offenders many of the people in our prisons are themselves offended against. That cycle of being the victim and being the offender is one we need to break. We need to address that and we can do that by intervening intelligently humanely and thoughtfully. Kia ora.ALFRED NGARO (National): I stand a little concerned at that last speech by the member from the Green Party because what it is telling ordinary New Zealanders is that all we have heard over the last 5 minutes or so is about the rights of the prisoners and not about the rights of the victims. We all know that incarceration on its own is not enough to deal with the issues of recidivist offending. But what we do know in this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill is that there needs to be a balance.If the previous speaker knew the intent of restorative justice it is about balancing the rights and the responsibilities of both the victims and the offenders and that is exactly what this bill is intending to do. It is taking responsibility for the things that have been offended. The previous speaker Mr Clendon talked about how many of us may not have been in prison. Well I have been in prison. I know that many of my colleagues have been there to see—Hon Phil Goff: What did you do?ALFRED NGARO: In prison to visit may I qualify that statement to visit—to visit. I actually was taking some pastoral care there. In helping to support I understand the issues of those who are in that situation.Hon Member: Go back.ALFRED NGARO: What this bill is trying to do—yes I will go back to the point that I want to make. I want also to commend Mr Little who said a lot about the balance in this bill. That is what this bill is intending to do. I commend this bill. It is taking a balance between the rights of the victims but also the responsibility of the offenders. That is what this bill is intending to do. I commend this bill. It is a good bill. I commend the chair of the Justice and Electoral Committee. It is a small bill but it is powerful. It is a little but it is a lot. Thank you. I commend this bill to the House.DENIS O’ROURKE (NZ First): The Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill re-enacts the Prisoners’ and Victims’ Claims Act 2005 so that it will continue in force beyond the extended sunset date of 1 July 2013. The restrictions upon the award of compensation to prisoners by the court and the process by which a prisoner’s victims can claim from an award are now to be made permanent.I am pleased to be able to say that the Justice and Electoral Committee has conducted a rigorous examination of the bill as introduced and New Zealand First is pleased to see that a number of needed changes have been made.The principles that New Zealand First considered in relation to this legislation—and many submitters have covered these too—included firstly that being a prisoner means being penalised only by the temporary removal of personal liberty and by incarceration. It does not mean anything more than that. Prisoners must have the opportunity for rehabilitation education and reorientation in the direction of their life if that is at all achievable. Secondly it does not result in the loss of other rights. That means that it does not result in the loss of the right to compensation for genuine injury or disability from genuine accidents because they can happen in prison just as easily as they can happen anywhere else. It does not mean the loss of the right to compensation for significant mistreatment should that occur. I agree with my friend Mr Clendon who pointed out some of those sorts of circumstances.I also took Kim Workman’s submission very seriously because he did make a very important submission to the committee. He said that we should take into account the need for a good prison culture and that good process encourages good behaviour inside and outside prison and will lead to fewer assaults within the prison fewer suicides and so on—generally better behaviour by prisoners. He also said that vexatious claims were few in number—and I agree—and that other prisoners dislike troublemakers and have their own effect in suppressing vexatious claims. So those things also need to be taken into account.On the other hand the rights protected in this way must be balanced against the fact that there is concern in the community that some prisoners abuse some of those rights especially the right to compensation for mistreatment and especially in regard to accident compensation. Those are genuinely held concerns as we heard in the submission process. We must give proper attention to them even if cases of abuse of rights by prisoners are rare. We certainly should not mollycoddle prisoners and we should make sure that there are no rorts like those we have seen in recent times by a few prisoners.New Zealand First accepts that there is a need also for an accessible process for the victims of a prisoner to be provided for claims against any award made to a prisoner. That is the fundamental purpose of this legislation. We think that victims’ rights have been seen almost as second-class rights for far too long. This bill pays proper attention to that and creates a clear right and an easily accessible process for a victim to claim against an award made to a prisoner. That achieves an appropriate balance that protects the rights of prisoners on the one hand and also meets community expectations that prisoners’ compensation be accessible to their victims to meet the properly awarded claims made by those victims.The Government I understand originally wanted a fund to hold the proceeds of all compensation awarded for victims who would then have the right to claim against it. But that was clearly impracticable and has been replaced by the better provisions now in the bill for a victim to claim against an award made to the prisoner who committed a crime against that victim.Some submitters have also said that the courts had pre-empted this bill in theTaunoa v Attorney-General case and that therefore the bill is not needed at all. They thought that codification of restrictions on claims made by prisoners may mean that the law would not be developed or refined further. However against that codification provides certainty and consistency in the law. Parliament does need to set out what the scope for claims made by prisoners should be and it does not mean that the courts may not develop the law within the scope of the Act. Again the Kim Workman submission was very relevant. He pointed out that codification helps both prisoners and victims to understand their rights. So on balance I believe that it is right that this process and these rights should now be codified.Section 13(1) of the principal Act sets out the essence of these issues. It says: “No court or tribunal may … award any compensation … unless satisfied that—(a) the plaintiff has made reasonable use of all of the specified internal and external complaints mechanisms reasonably available to him or her to complain about the act or omission on which the claim is based but has not obtained in relation to that act or omission redress that the court or Tribunal considers effective; and (b) another remedy … cannot provide … redress that the court or Tribunal considers effective.”I think that is the essence of the issue but of course there needs to be some guidance as to how that is assessed and section 14 provides for that. Amongst other things it says that the considerations are “the extent … to which the plaintiff … took within a reasonable time all reasonably practicable steps to mitigate loss or damage” and also “whether the defendant’s breach of or interference with the right concerned was deliberate or in bad faith; … the relevant conduct of the plaintiff;”—the prisoner in other words—“… the consequences for the plaintiff of the breach … the freedoms interests liberties principles or values recognised and protected by the right concerned; and”—importantly I think—“… any need to emphasise the importance of or deter other breaches of or other interferences with the right concerned;”. That is where I thought the Kim Workman submission was very appropriate. It goes on to give other considerations which include “the extent … to which effective redress in relation to that act or omission has been or could be provided otherwise than by compensation;”—again an important issue.So taking all that into account New Zealand First considers that the bill now achieves the correct balance that I have spoken of and that prisoners’ rights will be preserved but will be appropriately restricted in the claims that they bring. More important and finally the victims of crime will have a clear right and process to make claims against any award that the committer of the crime against them has received and that is as it should be. The victim should have the first claim against that money. The prisoner who committed a crime can only expect that he or she must first compensate the victim before benefiting from any compensation themselves. So for all those reasons New Zealand First will vote for the bill.Hon KATE WILKINSON (National—Waimakariri): Thank you for the opportunity to take a very short and succinct call to support the second reading of the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. Actually following on from Denis O’Rourke the New Zealand First speaker it was refreshing to see that he used the word “victim” far more than the Green speaker who did not Ibelieve use the word “victim” at all but seemed to concentrate mainly on the rights of prisoners.This is actually about having a fair and balanced system. It is just making the current regime permanent. It is putting victims at the heart of the justice system. It has stronger emphasis on victims not prisoners but it is a balance between the rights of offenders and the rights of victims. It is not removing the rights of offenders but it is putting victims at the heart of our justice system. They are the ones who have been harmed by the actions of the offenders and it is only right that we should have a justice system focusing on the rights of victims. This is a good bill. It is the right balance and I commend the bill to the House.Hon LIANNE DALZIEL (Labour—Christchurch East): I rise to speak in relation to the Prisoners’ and Victim’s Claims (Continuation and Reform) Amendment Bill. I am afraid I cannot repeat the enthusiasm of the previous National Party speaker Kate Wilkinson on this particular piece of legislation. The reason that I do not feel enthusiastic about our position which is to support the passage of the bill is that in so doing in actual fact we are allowing a piece of legislation to go through when the real issue has not been addressed and the real issue is the rights of victims. During a select committee hearing there was a very powerful presentation from the Sensible Sentencing Trust. It was very interesting. I have on occasions clashed with members of the Sensible Sentencing Trust on some issues where I am regarded as being somewhat soft on crime perhaps but I think that its submission was compelling. Why it was compelling was that it actually raised a whole lot of questions around where the Ministry of Justice was up to as far as victims’ rights went.Part of the sunset provisions that went with the original legislation which has had to be reinstated once—and in fact there was a reinstatement bill for a further sunsetted provision when it was replaced with this bill that we are now dealing with. There were two reasons for that. One was to make sure that there was put in place a good process for ensuring that prisoners’ rights were upheld. We are signatories to the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment after all and the Ombudsman did come to the select committee and tell us that there are issues around cruel and inhumane treatment of prisoners. The submitters talked about unlawful detention they talked about unlawful strip-searching and they talked about inappropriate placement on segregation resulting in isolation and the removal of minimum entitlements. Nobody wants to see prisoners treated in that way when they are in prison. No matter what they have gone to prison for their punishment is their imprisonment; it is not the way that they are treated while they are in prison and they are entitled to be treated with dignity and respect.However the victims of crime are also entitled to be treated with dignity and respect and here are the “Guiding principles for providing effective service and support to victims of crime” that they brought to our attention: “Respectful and confidential treatment: … Individualised response / flexible services: … Services are accessible: … Provision of ‘right information at the right time in the right format’: … Delivered by experienced knowledgable well-trained empathetic staff: … Consistent high quality services and support: … Integrated service provision: … End-to-end individualised support: … Accountable services:”. Where do you think they got that from? Do you think that that was a charter that they wrote themselves? Because it certainly looks like a victims’ charter to me. Where they got that from was the Ministry of Justice website. It was a report commissioned by the Ministry of JusticeVictims of crime in the adult criminal justice system: A stocktake of the literature. In fact after an extensive range of research relevant to crime victimisation the expert who provided this report to theministry identified a number of guiding principles that emerged as important in delivering effective support and services to victims.This bill does nothing to advance any of those. That is why it is with some disappointment that we see it being enacted but we are supporting it because the balance has to be there and on this occasion the balance requires us to vote for the bill.Dr JACKIE BLUE (National): I am pleased to be speaking to the second reading of the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. The purpose of this bill is to make the restriction on awards of compensation in the victims’ claim process in the principal 2005 Act permanent. The 2005 Act was due to expire at the end of June last year and an interim bill was introduced to cover a further year from 1 July 2012 to 30 June this year. This bill will now make the 2005 Act regime permanent. It is a balanced bill as we have heard before. It balances the rights of victims with the responsibilities of offenders. It is a good bill and I commend it to the House.The ASSISTANT SPEAKER (Lindsay Tisch): I understand the next call is a split call.KRIS FAAFOI (Labour—Mana): It is. Thank you very much Mr Assistant Speaker for the chance to speak to the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill. As my colleague the Hon Lianne Dalziel stated at the end of her speech this is a bill that we will support but it is with some considerable amount of reservation. We are supporting it because in essence it is a continuation of a piece of legislation that the Hon Phil Goff saw through this House in 2005. My colleague Andrew Little said it was a measure taken because of community unease at what had happened in a particular case where a prisoner had got some compensation and that should have been passed on to the victim of his crime. At the time the then Minister of Justice Phil Goff said that most people believe it is wrong that offenders should be compensated for wrongful treatment but in turn are not required to pay restitution to the victims they harmed. Good words—from a very good member of Parliament I should add. But I think this goes to the very heart of the Kiwi sense of a fair go in that if you get ripped off and someone has the ability to compensate you then you should get that compensation.But our reservation with this bill comes around a commitment made by the Government to consult the rest of Parliament and to have a review around the functionality of this legislation. This bill that is before us now basically makes permanent the sunset clause that has been rolled over I think three times since the 2005 legislation was enacted. The purpose of that sunset clause as Mr Goff has mentioned was to ensure that there was a review to make sure that this system has been working. The member from the Government side of the House Alfred Ngaro said that there was a balance to this piece of legislation and in a very narrow sense that might be true. But in a broader sense as Mr Goff has said to see whether this sense of fairness across the board is working we believe that a review should be taken of cases where not just victims of mistreatment in prisons were getting some meaningful gain but also other prisoners who were being incarcerated had the ability to compensate. As I said before if someone rips you off and you have the ability to be compensated by them then you should get that compensation.So we believe that there should have been a review. We understood that the Government was going to undertake a review. I believe that the last time the sunset clause was pushed out by another year or so we were told that there was going to be a period of consultation when we could talk about what would be captured in that review. As Mr Goff said in that review we would have liked to look at the issue where some people who have dallied in white-collar crime have been able to sit on rather largeamounts of money while their victims are looking at their bank accounts and their life-savings and seeing very little there and whether or not that should be captured by this bill in terms of being able to get them compensation. It is absolutely unfair and a break of a commitment from the Government to say that a review should not be held for the benefit of those people who are looking at this and saying: “If they can get compensation why can’t we get compensation when someone has ripped us off and is sitting on a huge nest egg? We can’t get our hands on it.”Why cannot the Government in this piece of legislation be true to its promise about caring about victims of crime—whatever crime it may be whether it be an act against the person or an act against their bank accounts—hold a review and broaden the scope around the victims’ rights and their ability for compensation? We have seen that that has not happened. It should happen it is a break of a commitment and although we support this legislation we do it with reservation because the Government says it is on the side of victims but in this case it has not been.JAN LOGIE (Green): I rise to add another voice in opposition to this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill on behalf of the Green Party. We are not supporting this bill because we have a sense of justice and a belief in human rights and we believe that victims’ rights are absolutely critical regardless of whether they are in or out of prison.I would also like to just remind this House as have many others before me of the intended review that has never happened. If this Government was truly interested in victims’ rights then that review would have happened and we would have had legislation that evolved out of a review that was evidence-based and considered the actual needs of victims and what would make a difference to them. This legislation does nothing towards actually addressing the needs of victims.We have heard about the gaps in terms of white-collar crime and recompense to victims. That point has been made very eloquently I think by my Labour colleagues but I would also like to draw to the attention of this House the work that was shelved by this Government on the inadequacy of our system in addressing the needs of victims of sexual abuse in this country. There was a huge review done by the Law Commission on looking at alternative pre-trial and trial processes to improve the ability of sexual abuse victims to get justice in our courts. We have a system that denies justice to about 99 percent of sexual abuse victims in this country and this Government after months—and decades in fact—of work on that issue just decided to shelve it because it was not a priority and because some of the ideas in that review were contentious. Not many of them were—a huge number of them in fact had agreement—but some of them were contentious so this Government shelved it.Where in that is any concern for the victim? It is a joke to put this forward in front of this House and pretend that this Government cares about victims when the most major piece of work that would have helped improve justice for victims in this country was shelved with no adequate reason being given for it.Another reason that we are opposing this bill is actually the point I made earlier: that we see prisoners being able to be victims. It is a very basic principle. This bill will have the perverse result of making prisoners less likely to report torture and will take away incentives for our corrections systems to create the safe environments that would mean that this legislation was completely unnecessary.Although New Zealanders may have a gut reaction and think that it is unfair that these people who may have done terrible things are now getting a payout from the Government that train of thinking is focused on what happened to somebody outside of prison that was done by this person and it misses the situation of that prisoner having been victimised by our State. The case that led to this was a case of extreme torture thatwas perpetuated by the State and I am very pleased to see the Government now taking action in terms of helping to protect hopefully transgender prisoners in New Zealand who we know are being sexually abused in our prisons at the moment.The State has a duty to protect prisoners. That is a basic basic part of human rights and we know that we are not going to have safer communities if we have prisoners who feel that they are in turn being victimised by the State. That is not going to lead to them feeling as if they have something to contribute to our society and something to give back to the community if they are alienated through the rehabilitative process. So there are many reasons that the Greens are opposing this bill and at heart it is because we care about victims.Hon TAU HENARE (National): Just a very quick call—[Interruption] Sorry?Hon Ruth Dyson: Do a proper speech.Hon TAU HENARE: Well let us talk first of all about Phil Goff shall we? He talks about criminals and victims but he is the one who broke the law just the other week by releasing a coroner’s report that was suppressed. He gets up in this House and talks about all these horrible criminals but the fact of the matter is that he should get up in the House and apologise to the coroner for releasing a protected report. That is the issue here so he has got a cheek to get up in this House and talk about that.I think the best speech in this House was Andrew Little’s. Andrew Little put it succinctly—that is that this Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill is a good bill and he supports the bill not like Phil Goff who gets up and does this raving speech about the rich and the poor and the criminal and the victim and the “I’ve done this.” and “I’ve done that.” He rails against the bill but then he says: “But we’re going to support it.” What a speech for the ages! I support this bill. All it does is to make sure that the victims are looked after.A party vote was called for on the questionThat the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill be now read a second time.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes 19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Bill read a second time.In CommitteePart 1 Main amendments to principal ActANDREW LITTLE (Labour): 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 claimagainst 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 $47000 worth of compensation being paid to victims out of a total of nearly $250000 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 theTaunoa 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 torecover 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.”DAVID CLENDON (Green): 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—Hon PHIL GOFF (Labour—Mt Roskill): 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 theTaunoa 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 ofsentencing 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.DENIS O’ROURKE (NZ First): 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 followingTaunoa v Attorney-General the bill was actually not needed. Of course theTaunoacase 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 theTaunoa 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 tolisten 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.Hon LIANNE DALZIEL (Labour—Christchurch East): 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 veryimportant. 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 theTaunoa 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? Shouldthey 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.A party vote was called for on the questionThat Part 1 be agreed to.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Part 1 agreed to.Part 2 Saving and repeal amendments to principal ActA party vote was called for on the questionThat Part 2 be agreed to.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Part 2 agreed to.Clauses 1 to 3A party vote was called for on the questionThat clause 1 be agreed to.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Clause 1 agreed to.A party vote was called for on the questionThat clause 2 be agreed to.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Clause 2 agreed to.A party vote was called for on the questionThat clause 3 be agreed to.Ayes101New Zealand National 59; New Zealand Labour 33; New Zealand First 7; ACT New Zealand 1; United Future 1.Noes19Green Party 14; Māori Party 3; Mana 1; Independent: Horan.Clause 3 agreed to.Bill reported without amendment.Report adopted.