Chauvel Charles: Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill — Second Reading 
[Sitting date: 21 June 2012. Volume:681;Page:3244. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 As we have just heard from the Minister of Justice this bill the Prisoners’ and Victims’ Claims (20120 Expiration and Application Dates) Amendment Bill would extend for 1 year only from 1 July the application of the Prisoners’ and Victims’ Claims Act 2005. The thought is as I understand it that the temporary legislation that we are considering now is needed because the substantive Act expires according to an inbuilt sunset clause that takes effect in 10 days’ time. I think it is important to understand the context here and in particular to revisit the history of the enactment of the substantive legislation so that we are fully cognisant of what we are doing in respect of this transitional legislation. 
Between 1998 and 2004 the Department of Corrections operated a punitive regime that was known as the behaviour modification regime and was later known as the behaviour management regime—or for short BMR. That regime was heavily criticised in a High Court case  
Taunoa 
v Attorney-General 
 where Mr Taunoa complained about the operation of the behaviour management regime and gained a significant award of damages against the Crown because of the fact that the behaviour management regime was operated in such a way as to constitute an assault and a deprivation of the inmate’s human rights. As a result significant damages were awarded in that case to the inmate. 
There were concerns at the time given the high level of the award that there would be substantial damages flowing against the Crown to inmates and that the victims of the offending of those inmates—in order to try to get some sort of compensation for the wrong that they had suffered—would have to go through an expensive court process in order to make themselves whole yet the inmates concerned against whom sentences had been entered because of the suffering that these victims had been through would effectively end up with windfall payments that would not be able to easily be touched by their victims. So that is the context of the substantive legislation. That is why the Minister of Justice at the time the Hon Phil Goff responded to those concerns by proposing the substantive Act. The intention as can be seen from its wording was that it would always be temporary and that there would be a sunset clause built into the legislation. It would apply until only 1 July this year. 
The present Government—and the Minister was almost good enough to concede this—has not managed its Order Paper well. So as a result of that mismanagement and I do not know whether it is her responsibility or the responsibility of her predecessor Mr Power but for whatever reason the replacement legislation has not come to the House in time to be re-enacted to avoid the operation of the sunset clause. There is replacement legislation on the Order Paper but I think the Government realised that it would not be able to get that legislation through all its stages including the select committee hearing that would no doubt be appropriate to renew the legislation in time to be able to get it through before the sunset clause was triggered. That is the only reason that we have the temporary bill now before the House. 
I think it is important to say that there are some real concerns about the substantive legislation that is proposed to effectively make the Prisoners’ and Victims’ Claims Act permanent. This was pointed out to us by a number of submitters in the Justice and Electoral Committee. We heard from the Minister that of the five submitters I think only one was vaguely supportive and every other submitter was against this legislation and they were against it because of the provisions of the proposed replacement. There are at least two reasons why the replacement legislation is bad law on its face. 
First of all the  
Taunoa 
 decision which I mentioned earlier has been to the Supreme Court. The Supreme Court radically scaled back the award of damages that had been given in the High Court. So all that fear about inmates getting enormous amounts of damages from the Crown was really groundless because the Supreme Court our highest legal authority has said that actually the quantum that inmates can expect to receive from the Crown is quite low. I note that the Minister recited some figures about damages that have actually been recovered under the regime. I think in respect of the 25 claims processed to date the actual level of monetary compensation that has been paid to victims is very low—I think she said it was $43000. That is proof I think of the concern here. It is a special regime set in place because of concerns that are no longer live resulting in actually quite low payments to victims of crime. 
 The second problem with the substantive regime is that the legislation as I have said was always intended to be temporary. It was always intended to address the fact that the Department of Corrections had wrongly put in place the behaviour management regime. The behaviour management regime was done away with and the Department of Corrections—as I know a number of members who have visited prisons or taken an interest in the issue will know—has taken a number of important steps to try to professionalise the operation of the prisons and to ensure that the sorts of practices that we saw put in place in the 1990s with the behaviour management regime cannot happen again on a systemic basis. So the original case has been overridden substantially; the behaviour modification regime is no longer in place. The question therefore arises why we need ongoing legislation. 
There is another issue that relates to the point that I made earlier about the figures that the Minister saw fit to release in her speech. My colleague Lianne Dalziel at the select committee when we considered this legislation was very concerned about the scant nature of the regulatory impact statement that justified both this temporary law and the substantive replacement law. She wanted to know what the justification in monetary terms was for re-enacting the regime and the Minister’s officials told us very clearly at select committee: “No that information is not available. The Minister does not want you to have it. It is sensitive.” 
Well unfortunately we do not have a terribly good example of joined-up Government at the moment because all those figures were released by the Department of Corrections yesterday in the estimates process and they do make very interesting reading. There are currently only 19 claims against the department awaiting adjudication in respect of the prison service—although one is a class action—and three against the probation service. As far as officials can tell there might be another 20 cases out there but that is simply an attempt to quantify contingent liabilities. 
So a real question has to arise as to whether a problem that has given rise to only 20 actual and 20 potential cases since 1995 merits a statutory regime. Judith Collins has given me a commitment to negotiate over the content of the replacement legislation during the year for which this Act will be extended if the House passes this bill. Frankly I and my colleagues need to be convinced of the ongoing need for it or of any special legislation to apply in this area. 
If there is to be special legislation there are some major questions that have to be asked. Why should the legislation apply only to inmates? Why should it not apply to all those who are convicted of an offence—perhaps including a community-based sentence? Why could the judge not give an indication as to sentencing that would include any compensation that should be payable to victims in the event that the person subject to a sentence came into a windfall? And why should the windfall be limited to a payment from the Crown? Why should it not include a testamentary benefit a Lotto win or any other sort of recovery of funds that was unexpected? 
I accept and my colleagues accept that it is proper to preserve the status quo for a year and to allow those discussions about a replacement. For that reason and that reason only Labour will support this temporary bill.