Goff Phil: Prisoners' and Victims' Claims Bill — Second Reading 
Goff Phil: Prisoners' and Victims' Claims Bill — Second Reading 
[Volume:625;Page:20555] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Prisoners' and Victims' Claims Bill be now read a second time 
. This bill is motivated by the Government’s belief that offenders should not enjoy financial compensation for wrongful treatment without first having to address the harm caused to their victims. This bill aims to ensure that prisoners can be awarded monetary compensation only in exceptional cases where it is the only effective remedy and where the person has first made use of other avenues of complaint. Secondly it seeks to ensure that if an offender does receive compensation victims will be able to claim their own redress from that sum. 
The bill introduces guidelines to restrict the circumstances in which compensation can be awarded. After the bill is enacted if a person in the corrections system claims compensation for a breach of his or her rights under the New Zealand Bill of Rights Act the Human Rights Act and the Privacy Act compensation will not be available unless the person can show to the satisfaction of the court that he or she has made reasonable use of available complaints mechanisms and has failed to obtain effective redress and that no other remedy or combination of remedies would provide effective redress. In considering whether to award compensation the court or tribunal will also be required to consider a range of factors including steps taken by the prisoner to mitigate the harm steps taken by the State to remedy the breach whether the breach was deliberate or in bad faith the consequences of the breach and the importance of the right that has been breached. 
In the exceptional situation where compensation is paid the bill introduces a new mechanism that will assist victims of the offender to have first claim against it. The bill does that by establishing a trust account and a special victims’ claims procedure. Where compensation is required to be paid by the Crown to a prisoner either in the form of public law damages or as the result of a claim in tort that compensation will be paid to the Secretary for Justice. After deducting relevant legal aid charges and any unpaid reparation the Secretary for Justice will place the money in a bank account to be held in trust so that the victims can claim against it. The Secretary for Justice will take reasonable steps to identify and notify victims. Victims will be sent an application form and will have 6 months to file a claim in writing. To assist them financially victims and offenders will be exempt from the usual financial eligibility rules for legal aid up to a capped amount. The parties will also be relieved from normal filing and hearing fees. 
Claims will be determined by a District Court judge sitting as a special claims tribunal and will usually be determined on the papers unless there are exceptional reasons to justify a hearing. Victims will not have to re-prove the details of the offender’s crime. The tribunal will be able to rely on findings of fact in the criminal case that led to the offender’s conviction. The tribunal will determine claims and make any orders based on the general law of damages. The Secretary for Justice will then pay money out of the trust to victims according to the tribunal’s order. Where there are multiple victims and insufficient funds to meet all the victims’ awards the available money will be paid on a proportional basis. 
Victims have always had the right to take civil claims against offenders for the harm or loss they have suffered. However they rarely do. In part that is because they are at a particular disadvantage: by the time the offender is released from prison the 6-year limitation period has often expired. The bill will address that by providing that for civil claims by victims against offenders the 6-year limitation period will be suspended whenever the offender is in prison. The new limitation provisions will benefit all victims of offences whether the offence occurred before or after the legislation takes effect irrespective of whether the offender had sought compensation and even if the victim’s actions would previously have been statute barred under the Limitation Act. 
Some submitters argued that offenders should never be entitled to compensation for breaches of human rights. I understand their sentiments. However a blanket removal of compensation would breach fundamental international obligations that successive Governments have committed themselves to. No country with which we would like to compare ourselves including Canada Australia the United Kingdom or the United States of America denies the right of compensation in all circumstances. 
Some submitters on the bill expressed concern about the adequacy of prisoner complaints mechanisms. The bill will restrict the availability of a monetary remedy. However it does not restrict the ability of offenders to make complaints about their treatment. The existence of a monetary remedy is not the only reason that prisoners complain. Prisoners complain because they want their complaint to be investigated and addressed. That is clear from the number of complaints to the Office of the Ombudsmen in spite of the fact that the ombudsmen have no power to award damages. Every effort should be made to ensure that rules regarding minimum standards in prison are not breached in the first place so that no grounds exist to bring claims for damages. 
In October last year the Government directed Ministry of Justice officials to lead a review into the effectiveness of existing inmate complaints mechanisms. The findings confirm that although the system does identify most breaches deficiencies remain that need to be addressed. The internal complaints process is still being underutilised and the Department of Corrections could be more responsive to the Office of the Ombudsmen. Several steps are being taken to address that. The new corrections legislation and regulations that come into force on 1 June will strengthen the complaints procedures. The new chief executive of the department is committed to making a change in culture and ensuring greater responsiveness by his department to the ombudsmen. The Office of the Ombudsmen is also undertaking an investigation into prisoner complaints processes. Its report which is due in December could also lead to improvements in how the department and the Office of the Ombudsmen work together. However should those changes not achieve an outcome whereby the system can be relied on to prevent or to quickly address any serious breaches consideration will be given to a new independent prison complaints body. I have directed justice officials to do preliminary work on how such a body could operate. 
Some submitters also spoke of the need for the Government to do more to assist the victims of crime. The accident compensation scheme provides support to victims of crime and to those who lose a family member as a result of a crime. In 2004 for example the Accident Compensation Corporation provided a total of $45.117 million to victims of crime including sensitive claims. The Government is committed to ensuring that the victims of crime receive the assistance they need to rebuild their lives. I welcome the Justice and Electoral Committee’s recommendation that there should be an inquiry into whether support and assistance for the families of homicide victims could be further improved. 
In concluding I thank those people who presented submissions to the select committee some of whom told very personal stories about the terrible effect that crime has had on their family. This bill and the steps being taken to strengthen the complaints processes will reduce the likelihood of compensation being paid to offenders and ensure that where compensation is paid victims will have a better opportunity to seek compensation for the unrecompensed harm done to them. I commend this bill to the House.