O'Rourke Denis: Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — First Reading 
[Sitting date: 11 December 2012. Volume:686;Page:7377. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 This bill the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill effectively re-enacts the Prisoners’ and Victims’ Claims Act 2005 so that it will continue in force beyond the extended sunset date of 1 July 2013 so the restrictions in the current law and the process by which prisoners’ victims can claim for an award made to a prisoner are simply carried over indefinitely. New Zealand First members expected a new updated piece of legislation rather than a simple re-enactment of the 2005 law so this bill in this form is something of a surprise to us. 
I would have to say having just listened to the last speaker Cam Calder that his is a view looked at through rose-coloured glasses and that is not something that New Zealand First will do. It expects a rigorous examination of the current regime in the current legislation to see firstly whether it does in fact work and secondly whether it achieves its stated objectives. New Zealand First will vote for the bill but only as far as to the Justice and Electoral Committee which it wishes to carry out a thorough examination of it. We expect changes and we expect a genuine review as part of the select committee process. As far as we are concerned that will mean a full examination of the original 2005 legislation not just an examination of the provisions of this particular amendment bill. 
I am not saying necessarily and New Zealand First is not saying that the current legislation is a failure. I do not know—we do not know—yet whether that is the case. But we do know that the principles must include these things: first of all being a prisoner means being penalised only by the temporary removal of personal liberty and by incarceration. It does not mean any additional punishment in any way concerning prisoners’ claims. Prisoners should have the opportunity for rehabilitation education and reorientation in their direction of their future life. Secondly it does not mean that there should be any loss of other rights for prisoners. It does not mean the loss of the right to accident compensation for genuine injury or disability from genuine accidents. It does not mean the loss of the right to compensation for significant mistreatment should that occur. 
On the other hand the rights protected in this way must be balanced against the fact that there is considerable concern in the community that prisoners abuse some of those rights and we all know that there are cases where that has happened. Those are genuinely held concerns in the community and we must give full attention to them. We certainly should not mollycoddle prisoners and we should make sure that there are no rorts of the kind that we have seen by some prisoners in the past. 
New Zealand First will want to make sure that the re-enacted legislation is appropriate in restricting claims by prisoners because there is a case for that. On the other hand prisoners can also be victims and their rights must also be appropriately protected. So that is where the balance must be struck: protecting the rights of prisoners on the one hand and on the other meeting community expectations that prisoners’ compensation be accessible by their victims to meet the claims properly awarded made to those victims. The select committee will be the place for all that to be looked at. 
One of the matters that I think needs consideration is section 13(1) of the 2005 Act which says that “No court or tribunal may in [these sorts of] proceedings … award any compensation … unless satisfied that—(a) the plaintiff has made reasonable use of all the specified internal and external complaints mechanisms reasonably available … but has not obtained in relation to that … redress that the court or Tribunal considers effective; and (b) another remedy or a combination of other remedies cannot provide ... redress that the court or Tribunal considers effective.” The possible problem with that legislation is in the words “redress that the court or Tribunal considers effective”. I think that needs further consideration and it certainly needs advice from officials as to how that sort of assessment has actually worked in practice. 
In section 13(2) there is a need for similar reconsideration and advice because that refers to how “In this section reasonable use of a complaints mechanism means the use that the court or Tribunal considers it reasonable for the plaintiff to have made in the circumstances.” So “reasonable” means reasonable and that is a brilliant thing to say in a piece of legislation. So what does it mean? We are going to have to get some advice on that and to see what effect that has had in practice. It is a subjective test and we all know that that is often the cause of considerable trouble in other legislation. 
In section 14 there are other matters to be reconsidered too. That says that a court or tribunal must take into account certain matters that are specified in section 14(2). Those include in section 14(1)(b) “the quantum of an award … to provide effective redress.” What is “effective redress”? Effective compared with what? I would like to hear about that from the officials. We also see for example in section 14(2)(b): “whether the defendant’s breach of or interference with the right concerned was deliberate or in bad faith;”. That is something to be taken into account. I do not understand really why that is relevant given that it is the breach itself that is the issue not whether it was deliberate or in bad faith but I am willing to listen to explanations about that too. 
In section 14(2)(c) the words “relevant conduct of the plaintiff” are used. Relevant to what? What does that mean? There is just not enough guidance and I would like to hear advice about that as well. In section 14(2)(g) we see the provision: “the extent (if any) to which effective redress in relation to that act or omission has been or could be provided otherwise than by compensation;”. I would like to know whether that actually occurs in practice and if so how well it has worked. Finally in section 14(2)(h): “any other matters the court or Tribunal considers relevant.” That is a pretty open-ended invitation and I would like to hear more advice on that too. 
However I want to make it clear in closing that firstly New Zealand First does want to see an effective and practical way of facilitating victims’ claims against prisoners. We in New Zealand First do believe in promoting victims’ rights and this is one valid way of doing it provided prisoners’ rights are also appropriately protected. But it must be workable and it must be fair. As I have already said important prisoners’ rights must not be unduly compromised. I think there is a lot in the 2005 piece of legislation that needs review needs clarification and needs improvement. So as I have said it is a surprise that this is simply being put up for re-enactment without that review and without that improvement. That is something that we will simply have to try to do through the select committee process. Nevertheless I look forward to the select committee stage to discuss all of that and for that purpose New Zealand First will support the bill going to the select committee stage but it may well not consider it further unless the Government is willing to consider improvements and amendments to the bill.