Chauvel Charles: Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill — In Committee 
[Sitting date: 26 June 2012. Volume:681;Page:3312. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I think it probably is a sensible decision to take the Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill as one question in the Committee. It is a short bill. I want to say just a few words so that those listening and members who have not had the benefit of sitting on the Justice and Electoral Committee do understand the context of the legislation. 
Back in 2005 Parliament enacted the Prisoners’ and Victims’ Claims Act. This was in response to widespread concerns about the decision of the High Court in a case referred to and reported as  
Taunoa 
 where an inmate sued the Crown because he had suffered what the court decided was an abuse not only of his physical well-being but of his human rights through the application of what was known at the time as the BMR—the behaviour management or behaviour modification regime operated by the Department of Corrections. What happened is that the High Court said on that occasion that the inmate was entitled to a substantial award of damages to in part indicate that the behaviour of the prison officers concerned—sanctioned it seemed by the department—was not condoned by the court. There was real concern at the time about the position of those who had suffered loss—physical or otherwise—as a result of the misdeeds of offenders who were serving time in prison and had received a windfall payment of compensation through the application of the precedent in  
Taunoa 
. As a result of that concern the 2005 legislation was enacted. 
The 2005 legislation as can be seen on its face was always intended to be temporary in effect. There are two sunset clauses in that Act. Part 1 of the bill before us in Committee today would extend one of the sunset clauses and Part 2 would extend the other for a period of 1 year. The reason for this extension was canvassed in the second reading debate. There was as is known a change of Minister of Justice between the previous election and now. For whatever reason the Order Paper was not in sufficient order to see the legislation that was proposed to replace the 2005 Act brought through all of its stages in order to be enacted. When that became obvious the Minister of Justice approached as I understand it a number of parties and said well what do you want to do with this legislation? Do you want it to expire in which case there is a real risk of that; do you want it rushed through the House; or is there some other way that we could deal with it—for example by a short extension of the current provisions of the legislation? My colleagues and I discussed the issue. We could not see that it would be just as far as the victims of offending were concerned to simply allow the existing regime to lapse. Although we would have preferred a considered discussion of what ought if anything to replace the 2005 legislation we were in the end agreeable to a short extension of its terms in order to allow that careful consideration of replacement legislation to occur. 
So that is the simple background to the bill that we are considering with its two extensions of the relevant sunset clauses for 1 year only to 1 July 2013. As to what might happen after 1 July 2012 it is my hope that we will get some sensible discussion both at the Justice and Electoral Committee and also hopefully between spokespeople about what ought to be the replacement model for the 2005 legislation. In respect of that discussion it seems to me that we need some information to be put on the table. 
First of all how much use has been made of the existing legislation? To what extent have the victims of offending found it a useful tool to try to make themselves whole as a result of having suffered loss through the wrongdoing of people who then ended up in jail have themselves won damages and then have had some of those damages go to their victims? The figures I have to say are a bit disappointing. Although the Minister was not initially willing to disclose them she made some disclosures in her second reading speech and further disclosures were made during the estimates process by the Department of Corrections. So we now have a relatively full idea of the extent of the use of the Act and of the contingent liabilities that accrue to the Crown as a result of potential pending claims. Frankly it is not a particularly compelling picture. That is not to say that this legislation was not the right thing to do at the time but that is not the question before the Committee and perhaps later at the third reading stage the House; the question is what we ought to do now with this legislation. 
My colleague Phil Goff made I think a compelling point in the second reading debate and that is if we are going to rethink this from the perspective of the victims of offending without violating the human rights record of our country or the rights of those who are serving sentences in our prisons how best should we do it? Well first of all what logic is there in restricting any ongoing legislation simply to those who are sentenced to a custodial sentence? What about community-based sentences? Why should people who have simply managed to avoid jail avoid having to make some sort of payment to their victims in the event that they receive a windfall payment at some point during their sentence? That just does not seem to be logical. Secondly why should the windfall payments be restricted to payments from the Crown to the offender? What about if the offender somehow gets some enormous payment from a will or from a Lotto win or from some other means? Why should the victim of their offending have to go through the ordinary processes of suing in the court all the expense all the trauma all the delays that we know are inherent in civil litigation in order to try to recover something to recognise what they have been through? 
So I think this rethinking needs to happen and if we are to support something going forward it needs to be based on principles it needs to be based on the idea that victims are entitled to recover something if it is possible to make a recovery and they should be able to do that without having to go through the hoops as it were of the legal process. It should not matter as I say how that money becomes available. If it is within reach legally as it were it ought to be reachable. But the second principle—and the most important counterbalance to that—is obviously what we have learnt as a result of observations from human rights bodies and other experts about the operation of this legislation. Can we balance those considerations and what is an important factor for New Zealand which is our very proud record of preserving and protecting human rights on the international stage while maintaining a regime in this sort of area that does look after those who suffer from crime or their families? It is that balancing act that this bill will give us only a year to consider. We have assurances from the Minister that we will be able to perform that exercise adequately. Really what I want to do—in conclusion in this speech—is give very clear notice that we will be holding her to those undertakings.