Tanczos Nandor: Prisoners' and Victims' Claims Bill — First Reading 
Tanczos Nandor: Prisoners' and Victims' Claims Bill — First Reading 
[Volume:622;Page:17994] 
NANDOR TANCZOS (Green) 
: 
 The Greens do not support this bill going to the select committee. We suggest that the Government go back identify the problem clearly and rethink how best to remedy it. We suggest that the Government go back to the conceptual stage and take the time to work through the issues a bit more carefully because this is hasty legislation. It has been drafted in response to a specific situation and to claims that are before the courts and in the wings. We do not believe that that is a good basis for hastily enacting legislation that has such significant and enduring effects. Of course there is an issue. Inmates are being granted significant damages by the courts for suffering abuse—tantamount to torture at times—at the hands of the Department of Corrections. While I agreed with some of the things that Mr Mark said I do not think we can compare that compensation with a golden handshake. I do not think it is in quite the same league as that. 
The problem is that the victims of the inmates who receive such compensation—sometimes victims of terrible terrible crimes—may be unable to sue those prisoners for damages because the statute of limitations does not allow them to. That is clearly unfair. It is abhorrent to most New Zealanders and I do not believe that we can allow it to stand. Having said that there is a very simple way to fix the problem. It is to extend the statute of limitations. This bill does that in clause 60 and that is a good thing. Clause 60(1) states: “The limitation periods to which this subpart applies cease to run while the offender is serving a sentence of imprisonment in a penal institution or a prison.” That is a very sensible amendment and the Greens support it. 
Out of a concern for victims we would also look at supporting ways to make it easier for victims to sue offenders for damages. For example we support automatic eligibility for legal aid for such victims which is what Part 3 of this bill provides for. We support removing court filing fees as this bill does in clause 27. So this bill does do some of those things and we support those parts of it. However the bill goes significantly further than that. It goes much further than simply fixing some bizarre anomalies in the law. In fact far from focusing on the rights of victims we believe it puts up a smokescreen. It makes a number of changes that are more in the nature of protecting the Crown from liability for its own actions with regard to prisoners than they are about protecting victims’ rights. 
Let us look at what the bill does. The Minister has run through this stuff. First it restricts the granting of an award of public law damages to prisoners and people “under control or supervision”. Let us note the phrase “under control or supervision”. Despite the Minister’s assertions that is not just about serious violent offenders who are in prison for the most heinous offences. That may well be so in some of the cases that are before the courts now but this wording means that people who are doing community service for very minor offences will have their right to sue the department for significant breaches of basic human rights restricted. In any case the law is supposed to be blind to the status of individuals. It is supposed to treat all people equally regardless of our views of them. This bill is a significant infringement of that principle. It forces people to rely on the official complaints procedure. That weakens the most effective protection against abuse in the prison and correctional system which is the ability to seek damages. Russell Fairbrother mentioned that. He said that the best way to stop compensation from being paid out was to stop the abuse. I absolutely agree with that but what we are doing is removing that sanction from the department. That is a very dangerous thing particularly when we bear in mind that the Government has strenuously resisted the establishment of a complaints body that is independent of the Department of Corrections. 
The second thing that the bill does is to provide that any money awarded even under that highly restrictive scheme will be frozen for 6 months while victims of the inmate are informed of their chance to sue. Interestingly given that the bill claims to be about victims’ rights any moneys that are paid out from those frozen funds will under clause 17 be used firstly to pay off any legal aid bills—that is an interesting thing—and secondly to pay for reparations. Only thirdly will compensation claimants be able to get hold of any of that money. Again that brings into question the actual intent of the bill. Just as an aside the Greens would have supported legislation that stated that any compensation money must first go towards paying off any fines outstanding reparation orders or things like that. But it is also interesting that fines are absent from the list. 
The third thing that the bill does is to set in place a special procedure under which victims will be able to sue offenders: the victims’ special claims tribunals. We are seeing here the establishment of a new kind of tribunal. Again it is being done in haste. The implications of that have not been well-thought-through. Normally we would expect to see significant policy work done before such a thing was introduced. We would expect to see a discussion document from the Law Commission papers go out for public submissions submissions come back and then the development of a bill. But because this is a hasty bill that is designed to protect the Crown from liability we are seeing a significant new procedure being set up the implications of which simply have not been thought through. Hearings will be on the papers except under exceptional circumstances when the plaintiff can give oral evidence. Interestingly the defendant apparently will not be able to give oral evidence; only the plaintiff will which seems unfair. 
The other interesting aspect is that action can be taken “by or on behalf of” a victim. The Minister has suggested that many victims may not want to sue offenders for damages and so are unlikely to take action. So we may see a number of cases coming through on behalf of victims. It may well be that the victim does not want payment from the offender; he or she may see that as distasteful. The Minister has suggested that many payments may well go to organisations apart from the plaintiff. That opens up I think the very worrying possibility of some unscrupulous organisations—and there are many good organisations working in this area—that claim to represent victims manipulating victims of crime who have no wish to initiate proceedings into allowing those organisations to take proceedings on their behalf in return for keeping the proceeds. Given that the bill puts in place a special procedure to sue that is all about expediting the award of damages to the victim I think that procedure is seriously open to misuse by people whom the bill is not at all intended to benefit. I think the Minister needs to take a very careful look at that. 
This bill has already caused significant disquiet in the legal fraternity and among organisations with an interest in or a commitment to civil rights. Once again the Green Party is the only voice in Parliament that is prepared to defend some basic civil rights. While some people and some members of this House view civil and human rights as a kind of fluffy PC thing or as an expendable luxury basic human and civil rights are in fact what distinguishes and separates a just nation from a tyranny.