Franks Stephen: Prisoners' and Victims' Claims Bill — First Reading 
Franks Stephen: Prisoners' and Victims' Claims Bill — First Reading 
[Volume:622;Page:17996] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to address the Minister of Justice’s hasty Prisoners’ and Victims’ Claims Bill. 
Dr Wayne Mapp 
: Hasty? 
STEPHEN FRANKS 
: This bill looks as if he still has not had a chance to read it. I would not be surprised if he has not read it properly. Of course the Government has only one halfway-competent Minister in the field. The Government is riddled with Ministers Associate Ministers and others that it needs to take out of its caucus and stick into Cabinet so that it can halfway trust them. 
Here is a bill that falls squarely within the scope of the authority of the Minister of Corrections. It could have been dealt with by the Minister who has negotiated some of these dreadful payouts the Hon Margaret Wilson but she is of course getting the kick upstairs and obviously could not have been trusted to sort out this little mess. The Hon Paul Swain is in the House and is I hope preparing to take a call and speak on this bill because this is again something that was absolutely predictable when his Corrections Bill went through earlier this year. That was a bill that simply opens the Government up to more claims like this. Chapman Tripp my old law firm took the precaution of putting in writing its warnings to the select committee on the likelihood of increased liability of the Crown under the new Corrections Act. These are liabilities that are utterly immoral. These are liabilities that the courts impose because they want to get into the business of straightening out the Department of Corrections. 
As Ron Mark said earlier there are reasons why prisoners have grievances against the prison authorities. In a civilised country it is important that those grievances be addressed. Being healthy and safe are minimum requirements for prisoners—safe from each other safe from abusive behaviour by officers and safe from themselves if the misery that they are dealing with is too great. But that does not mean that they should be getting paid great sums of money because their rights have been abused. It means that the visiting justices should be doing their jobs. Instead Mr Swain passed a bill earlier this year that turned the visiting justices—who should be blowing the whistle on this kind of thing who should have independent clout who should have the mana of their judicial office to draw attention to abuses in prisons—into prison toadies. A visiting justice is any lawyer of 7 years’ standing whom the department wants to retain and make into a formal part of its internal system. A visiting justice these days is hitchhiking on the honourable term “justice” with no claim to it. They are not justices; they are simply another part of the machine that is operated by the Department of Corrections. The Minister knows that that system will not provide the independent overview that will mean we do not get the kind of outrage that has led some of the prisoners to file their claims. 
I will get back to what Mr Goff’s bill does. I measure that against the bill I drafted for him in a week in the middle of September when it became quite plain that despite his bluster and his statements that he would fix this problem he was really just hoping it would die down and the media would forget it. It does not do the most important thing which is eliminate the ability of judges to invent grievances and then invent remedies to deal with them. The 1994 Baigent decision involved a piece of judicial lawmaking that this Parliament had expressly considered and decided not to adopt. The courts gave themselves the right to give monetary awards for breaches of what they determined to be human rights law. 
In the circumstances that we face vicious criminals are making these claims and getting awards that work out at hundreds of dollars a day—amounts they could probably never earn anywhere—when they have suffered nothing except irritation and perhaps humiliation and a sense of grievance. The fact that their compensation sticks in the craw of victims is absolutely obvious. This bill does nothing to fix that because it does not give the victims an equivalent right. There is nothing in this bill that conveys the outrage and sense of loss that a victim feels when justice is not done or the sense that most people in this country have that the price is not paid for a crime or that it could lead to an outrage every bit as intense as the kind of offence that in the Taunoa case a judge decided should be rewarded with compensation for a prisoner. These prisoners—who may be feeling a sense of grievance because they have not had fresh towels or because they have been forced to clean out their own cells—are claiming for breaches of standards that are not extended to law-abiding innocent citizens. 
What Mr Goff’s bill should have done but of course does not do is state quite simply that monetary compensation should be paid only when there is something to compensate. When someone has lost something or when there is damage then that damage should be remedied. But in most cases what these prisoners have lost is respect for their minimum rights to be safe from abuse and kept healthy. That does not involve a loss of money and there is no reason why this bill should not have included a provision that requires a judge not to invent a redress that is really an ability to attack the Crown. Instead it should have said that compensation or damages should be payable where damage has been suffered. 
The second thing that this bill should have done and does not do is stiffen the prison discipline provisions. I have already mentioned the failure to maintain the status of visiting justices. We do not want our prisons to get the sort of reputation that Turkish prisons had— 
Midnight Express 
 sort of prisons. We do not want to be embarrassed in this country about the state of our prisons even though we do want prisons to punish offenders. What should be happening here is that when there is a genuine claim upheld by the court the court would really be doing justice if it had the authority to ensure that those who are responsible for it were brought to justice. There is nothing in this bill that ensures that. This bill should make it quite plain that when victims claim they will be able to claim for the same kind of hurt and grievance that has given the offender the entitlement. We can know now that most of these sums will stay intact for the prisoners because the accident compensation scheme blocks the claims of people who have been physically injured by criminals. The accident compensation scheme does not block claims for mental injury. So we will put victims who are really claiming because they are outraged through the hoops of having to try to establish that they have a continuing injury. That is humiliating for them it is not healthy and it does not do what this bill should be setting out to do which is to even the scales of justice. It should be a very simple matter to describe a grievance here that is compensation for the offence of seeing a prisoner getting a sum that the victim could not get in the same circumstances unless they were in prison. 
This bill does not do what my bill did which was to authorise and instruct someone to take the proceedings for the victims. The so-called tribunals are simply District Court judges who have been given another label. They are already overworked and do not have the time. There is nothing in this bill that says they will get the priority they deserve. Lastly it does not do anything about the money that has already been paid out. Although we do not approve retrospective law there should have been an ability to simply save that money intact at least until it was determined under existing law whether the victims of the offenders who have already been compensated should be able to access some of that money in civil actions. This bill as I read it does nothing to deal with the offence that must be felt by victims. 
Sitting suspended from 6 p.m. to 7 p.m.