Clendon David: Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
Clendon David: Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill — First Reading 
[Sitting date: 11 December 2012. Volume:686;Page:7375. Text is incorporated into the Bound Volume.] 
DAVID CLENDON (Green) 
: 
 Kia ora. Overall it is disappointing that here we are on the second to last sitting day of the year in the middle of December allegedly moving into the season of goodwill and good cheer and we are once again debating the latest iteration of this dismal legislation the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill which seeks to somehow serve victims by punishing victims. We have heard a lot about victims’ rights but the people at the heart of this legislation—people in the State’s custody whose human rights are abused people who are mistreated while incredibly vulnerable in the custody of this State—are also victims. We are not hearing too much about those. This legislation and the preceding legislation seem to establish a hierarchy of victimhood. Frankly I do not accept that around something as fundamental as human rights. 
It is true that the Greens actually supported the initial 2005 legislation. We opposed it at its first reading. We were persuaded to support it at its third and final reading on the basis that it would be short term—that it would have an expiry date; a sunset clause was built into it—and also that there would be a comprehensive overhaul and an inquiry into how we can deal better with victims and make our criminal justice system genuinely victim-centric with a genuinely restorative approach in which we can heal wounds make some restitution to people and hopefully reduce the likelihood of reoffending. 
I think the Government ought to take pause to think. We have just heard from the gentleman who was the Minister of Justice at the time this bill was put in place the Hon Phil Goff— 
Hon Phil Goff 
: It’s a long time since I’ve been accused of being a gentleman David. 
DAVID CLENDON 
: Yes. The party that initiated this legislation the Minister who led it and a party that supported it have now turned against it. It was an experiment. It may have had value for a short time in a very specific situation. Mr Goff is quite right: those offenders who were tortured at Mt Eden prison—and they were tortured; that was the finding of the court—were not pleasant people. They were very very tough people. They were quite unwell about as unpleasant as can be. It was a unique one-off situation that this bill was responding to. The Government is using as a justification for the embedding of this dreadful legislation as a permanent feature of our legislative canon that the public wants it so. It is suggesting that the public demands that victims must be given compensation and that prisoners ought never to receive any. I simply do not accept that. What limited research there is available tells us that the public is actually much less punitive than one would imagine if you look at the corrections and other forms of legislation that have passed through this House in the last 10 years or so. Anecdotally we all know—and I talk to people a lot about this stuff about prisons and corrections and the like—and yes if you open a conversation about that immediately the knee-jerk reaction from people involves locking doors and throwing away keys. 
If you scratch one inch below that surface New Zealanders are actually much more reasonable than that. New Zealanders will listen to a well-constructed argument. Very few offenders go away for ever—only the worst of the worst. We know that most of the people in our prisons ultimately will come out. If the message we are giving those people while they are in jail is that they have no human rights and they have no right to receive compensation if their human rights are compromised by the State what is that message telling them? It is that they are less than human that they do not have the normal rights of a citizen. It is brutalising and it is dehumanising and we will all suffer the consequences of that when these people are finally released back into society. The likelihood of those people being genuinely reintegrated back into the mainstream and becoming good citizens is much diminished if they are subject to this sort of legislation and the expectations that are built into it. 
The regulatory impact statement is a very interesting read and I recommend it to anyone who has not read it. It has a series of options. Option one is to allow the status quo—allow the existing legislation simply to expire. The regulatory impact statement tells us that in the short term that would expose the Government—the State—to some financial risk. Inevitably there would be some further claims against the original legislation. But why do we not simply accept that risk take that cost up front and then move on and develop some genuinely victim-based legislation? Our integrity and our reputation as a country that acknowledges and respects human rights are worth a great deal more than any short-term cost that might be imposed if this legislation is allowed to expire. There have after all been something like only 25 awards that have been subject to victim claims since 2005. There are another 15 or so in the offing. We are talking about in total figures some few hundreds of thousands of dollars. In the scheme of things it is rats and mice. It is not significant numbers; it is pennies. It is too cheap a price to sell ourselves out for—to sell our reputation and our integrity. 
Clause 48 of the regulatory impact statement as I have said suggests that letting the Act expire is the best way to ensure that we comply with domestic and international human rights obligations because this legislation has always been on incredibly shaky ground in terms of our human rights commitments internationally. The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment is the most obvious one but not the only one. There have been some very tortured semantics brought to bear to say that well yes prisoners can get compensation which is what the international agreement demands but of course we know that in reality this legislation endeavours to make it virtually impossible for any prisoner who is offended against to receive genuine restitution. 
The regulatory impact statement goes on to say that this new option ensures that offenders do not receive financial compensation for wrongful treatment without first having to redress the harm they have caused. I have no particular problem with that. We are not opposed in principle to any money coming to prisoners being disbursed to their victims. But in the way this is done—and Mr Chauvel has outlined the exclusivity of this legislation—other forms of income for prisoners would not be subject to this. Why is it that we want to diminish the constraints on the Crown? There is no doubt that if this legislation is embedded the likelihood of inmates bringing complaints or bringing cases against the Crown will be diminished. It will be reduced. Why would offenders put themselves through a claim against the Crown knowing full well that they will not get any significant financial redress if and when the Crown is found to have acted against their human rights? 
Money is not the sum total of restitution and again the model of restorative justice is highly sophisticated. It is complex. It is hard. It takes time. But it is ultimately where we need to go. We need to go to a genuinely restorative place. Extending the life of this legislation making it permanent takes us further away from that place. It is a short-term fix now treated as if it is a long-term solution which it patently is not. 
One remarkable new feature of this bill is that it talks about illegal or wrongful detention false imprisonment of people and not only that it will be under the ambit of this bill from here on but that it has been made retrospective. Retrospective legislation is seldom good legislation. It has a place a very limited place and this is not one of them. It is extraordinary to suggest that a person who has been kept in prison longer than the court decreed they ought to and who has successfully claimed against the Crown will find that any financial redress will also be subject to this new law. It goes on to say that “if the courts found unlawful detention claims should not have been subject to the PVC Act”—that is retrospectively—“the Crown may be liable for some payments made in accordance with the Act.” This sort of reflects the consultation if one can call it that. The Department of Corrections understandably the Ministry of Foreign Affairs and Trade—I am puzzled as to why they were one of the very privileged few who had opportunity to submit. Treasury is another. This bill reeks of risk aversion in terms of saving that last dollar. It is willing to sell out our integrity sell out our reputation as a country that respects human rights for everyone. I think the price is far too high. We will continue to oppose this bill.