Goff Phil: Prisoners' and Victims' Claims Bill — First Reading 
Goff Phil: Prisoners' and Victims' Claims Bill — First Reading 
[Volume:622;Page:17986] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Prisoners' and Victims' Claims Bill be now read a first time. 
 It is my intention to move that the bill be referred to the Justice and Electoral Committee for consideration that the committee present its report on or before 4 April 2004 and that the committee have the authority to meet at any time while the House is sitting except during oral questions and during any evening on a day on which there has been a sitting of the House and on a Friday of a week in which there has been a sitting of the House despite Standing Orders 191 and 194(1)(b) and (c). 
Most people including myself have a deep sense that it is wrong that serious offenders can be awarded compensation for wrongful treatment without those offenders themselves being required to pay compensation to their victims for the serious wrongs inflicted upon them. The best way of preventing compensation payments to inmates of course is to ensure that breaches of State obligations that give rise to them do not occur. To help achieve that outcome Ministry of Justice officials are currently leading a review of current prisoners’ complaints mechanisms including the Department of Corrections’ internal complaints process prison inspectors and external complaints mechanisms such as the Ombudsmen so that any breaches can be dealt with at the earliest opportunity. 
This bill sets out two major changes with regard to State compensation to inmates. Firstly it provides that prisoners can be compensated only in exceptional cases and after exhausting all avenues of complaint. Secondly if compensation is payable the bill provides victims with the means to seek redress from the offender for the harm and suffering the offender caused them. 
The bill requires that if a person in the corrections system brings a claim for a breach of the New Zealand Bill of Rights Act the Human Rights Act or the Privacy Act compensation will not be available as a remedy unless the person can show to the satisfaction of the court that he or she has made reasonable use of the available complaints mechanisms and has failed to achieve effective redress and that no other remedy or combination of remedies would be effective. These new rules will apply to all court decisions made after the bill takes effect. That includes any cases that are pending at the time of enactment. Requiring prisoners to use available complaints mechanisms is intended to ensure that complaints are brought to official notice and dealt with as quickly as possible. That will reduce any opportunity for prisoners to tolerate a breach longer than is necessary in order to claim compensation through the courts. 
In the extraordinary situation where compensation is paid to a prisoner this bill establishes a new mechanism whereby the prisoner’s victims have the opportunity and get assistance to claim redress from any payment that the offender has received. The bill does that by establishing a trust account and a special victims’ claims procedure. Any compensation paid by the Crown to an inmate either in the form of a public law damages claim or as the result of a claim in tort will be paid instead to the Secretary for Justice. After deducting any legal aid charges and unpaid reparation the secretary will place the money in a bank account to be held in trust so that victims can claim against it. The Secretary for Justice will take reasonable steps to identify and notify victims of the offender of the fact that a sum of money is available to them. Victims will be sent an application form and will have 6 months in which to file a claim in writing. To assist them financially victims will be exempt from the usual financial eligibility rules for legal aid up to a capped amount. They will also not have to pay normal filing and hearing fees. Victims therefore will not be disadvantaged in relation to offenders. 
The procedures have been made as simple as possible while still being consistent with natural justice requirements. Claims will be determined by a District Court judge sitting as a victims’ special claims tribunal. They will usually be determined on the papers unless there are exceptional reasons justifying a hearing. Victims will not have to re-prove the details of offenders’ crimes. The tribunal will be able to rely on the findings of fact in the criminal cases that led to the offenders’ convictions. Victims will have to provide information only about the harm or loss they have suffered—something they have already done normally through a victim’s impact statement. When all the claims against the offender are determined the tribunal may make orders for damages. The Secretary for Justice will then pay money out of the trust to the victims according to the tribunal’s order. Where there are multiple victims and there are insufficient funds to meet all victims’ awards the available money will be paid out on a proportional basis. This new process and trust arrangement will apply to any money awarded as part of a final judgment or settlement given after the bill takes effect even if a case is already before the courts pending final determination. 
The third main feature of the bill is that it makes changes to the limitation rules that apply to victims’ claims. Although victims have always had the right to take civil claims against offenders for the loss or harm they have suffered they generally do not do so. One of the main reasons for this is that such claims are usually futile if the offender has no assets and is in prison. By the time the offender is released the normal limitation period of 6 years may have expired and the victim may be disadvantaged. Clearly this puts victims at a particular disadvantage in enforcing their rights. The bill will address this by providing that for victims’ claims against offenders the 6-year limitation period will be suspended during all periods that the offender is in prison. Changes to the limitation rules will extend the period in which victims can pursue claims against prisoners either before a victims’ special claims tribunal if relevant or in the ordinary courts. The new limitation provisions in the bill will benefit all victims of offences whether the offence occurred before or after the bill takes effect and irrespective of whether the offender has sought compensation and even if the victim’s action would previously have been statute barred under the Limitation Act. 
There will be those who say that this bill does not go far enough and that compensation should never be paid to prisoners. That is a position that is not sustainable under international law and may remove from the State the incentive not to breach standards. No comparable country—the United Kingdom Canada Australia the United States or any European country—denies the right of compensation in those circumstances. This is a right acknowledged by the National Party through its entire period in Government. This flip-flop National Opposition might promise all sorts of things now but it will never deliver on them because when National was in power it never provided anything of this nature. Others will say that this bill goes too far. That also is incorrect. The bill takes a principled approach to compensation consistent with New Zealand’s domestic and international human rights obligations. 
I believe that the review of the complaints procedures that is taking place now and this bill will quite properly restrict the circumstances that may give rise to compensation payments to inmates. Where payments have to be made the bill maximises the prospect that victims will be the ultimate beneficiaries. That is as it should be and I make no apology for that. I commend this bill to the House.