Select Committee Submission: Prisoners and Victims Claims (Continuation and Reform) Amendment Bill justspeak.org.nz

Transcription

1 Select Committee Submission: Prisoners and Victims Claims (Continuation and Reform) Amendment Bill justspeak.org.nz

2 Select Committee Submission: Prisoners and Victims Claims (Continuation and Reform) Amendment Bill Table of Contents Introduction... 2 Purpose of the bill... 2 Compensation to victims... 3 Disincentivising claims by prisoners... 4 Conclusion... 4 JustSpeak - Background... 5 Introduction In essence this Bill continues the legislative scheme enacted in the Prisoners and Victims Claims Act While we support the current amendment to the extent that any money left over from an award of compensation to a prisoner (after victims have made claims) would now go to a prisoner, rather then a victims fund as it did under the original legislation, JustSpeak believes the scheme as a whole is fundamentally problematic and should be abandoned. JustSpeak believes that the rights and needs of victims are of the utmost importance. However, they cannot and should not be met by allowing victims to claim against compensation received by prisoners for breaches of their rights. In a sense this mechanism for compensating victims penalises offenders twice for the same offending, contrary to the rule against double jeopardy contained in the BORA. This mechanism undermines the rights of prisoners, is inconsistent with the sentencing process, and disincentivises claims by prisoners. It undermines the prospects for rehabilitation and reintegration of prisoners into the community. Purpose of the bill The explanatory note provides that this Bill simplifies the process for claims by victims against compensation which is to be paid to prisoners as redress from specified human rights and tort claims. Specified claims are claims for compensation by or on behalf of a prisoner, based on an act or omission of the Crown and a breach or interference with a specified right or the law relating to liabilities in tort. This includes 2

3 rights contained in the New Zealand Bill of Rights Act 1990 (BORA), the Human Rights Act 1993, and the Privacy Act JustSpeak believes that the objective of this Bill undermines the human rights of prisoners in New Zealand because it undermines their right to natural justice and their right to meaningful redress for breaches of their rights provided by various statutes. Where a prisoner is due compensation, it is because that prisoner is a victim of a wrong committed by the Crown. The Crown is the offender and the prisoner is the victim. Compensation to victims The Sentencing Act 2002 provides for the ability for the sentencing judge to order a convicted offender to pay reparation for: the loss or damage of property; emotional harm; consequential loss or damage of property; or consequential physical or emotional harm. By ordering that an offender pay reparation to a victim through the sentencing process, the financial penalty and recompense is intimately tied to the offending and the offender s acceptance of responsibility. It also enables the judge to take into account the payment of reparation in considering the sentence as a whole and its proportionality to the offence committed. Conversely, allowing victims to claim against monies received by prisoners, as financial redress for breaches of the rights or the law of tort does not have the same link between the offence and the sanction. It also risks disproportionately punishing offenders for offences because the financial penalty would not have been accounted for by the sentencing judge in determining the offender s sentence. In a sense this mechanism for compensating victims penalises offenders twice for the same offending which is itself contrary to the rule against double jeopardy contained in the BORA. Further, the compensation awarded to a prisoner is based on a wrong committed by the Crown. The offender (the Crown) compensates the victim (the prisoner). To simplify the process for a prisoner s victim to claim from that compensation is to suggest that the Crown s actions were mitigated by the prisoner s former offending, meaning that the compensation should be shared with the prisoner s victim. As well as being morally repugnant, this rationale undermines the basis for awarding compensation to prisoners for wrongs committed by the Crown. 3

4 Disincentivising claims by prisoners JustSpeak believes that allowing victims to claim against compensation awarded to prisoners for breaches of their rights will disincentivise the making of claims by prisoners. This is a very serious concern for several reasons. The maintenance of human rights relies on the ability to report, sanction and receive redress for breaches of such right. Without this, a culture of impunity and disregard for human rights would develop. Prisoners are some of the most vulnerable members of society with respect to the power of the State. It is of paramount importance that prisoners human rights and rights under the law of tort are protected; when they are breached by agents of the Crown, these breaches are reported and investigated; and that the perpetrators are appropriately sanctioned and the prisoners receive meaningful redress. However, if there is the very real prospect that any compensation received by a prisoner will be subject to a claim by a victim, prisoners will be disinclined to report breaches of their rights and pursue compensation. In this manner the substantive rights of prisoners under New Zealand s human rights legislation and tort law are undermined, along with the rights to redress provided within, and their rights to natural justice. Conclusion It is for these reasons that it is JustSpeak s position that this legislative scheme should be abandoned. While the current amendment, which prevents any money left over from an award of compensation to a prisoner (after victims have made claims) going into victims fund rather than the prisoner, is an improvement JustSpeak believes the scheme as a whole is fundamentally problematic and should be abandoned. The needs of prisoners victims are important but should be met by way of the sentencing process or through the provision of other services such as counselling, restorative justice conferences, and victim support. Safeguarding the human rights of prisoners is fundamental to a humane New Zealand society, and to the rehabilitation of prisoners and their reintegration into the community. 4

5 JustSpeak - Background JustSpeak represents a non-partisan network of young people across Aotearoa interested in contributing to the debate on criminal justice in New Zealand. As a new generation of thinkers JustSpeak is working for change in the justice system through imagination, innovation and a belief that we can achieve a just Aotearoa. JustSpeak was formed in early 2011 as the youth branch of the organisation Rethinking Crime and Punishment. The group is guided by a belief that this new generation has much to offer to the national conversation on criminal justice: an imaginative outlook; a feeling of urgency; and a sense of hope, amongst other things. The group values an informed criminal justice debate based on evidence, experience and ongoing learning. And within its own operations, JustSpeak has a genuine commitment to inclusion and diversity. The aims of the group are to empower young people to think independently about criminal justice issues, to encourage networking and the engagement of those affected by the justice system, to foster learning from others, to develop a voice for a new generation of thinking on criminal justice, and to allow this next generation to own its rightful place at the policy table in this area. The name JustSpeak reflects the group s desire to encourage people to speak out, without fear of belittlement or ignorance, as well as the goal of the group to contribute to a culture of speak about what is just in relation to crime and punishment policy. JustSpeak is founded on the following whakatauki: Mā te tika o te toki o te tangere, me te tohu o te panaho, ka pai tetere o te waka i ngā momo moana katoa. (By designing the keel of the waka to perfection, your canoe will overcome obstacles.) The whakatauki articulates the need to design the keel of JustSpeak to perfection, so that the group can overcome obstacles, and maintain a durable voice in the criminal justice conversation. But it also points to the need for the keel of a bigger waka the criminal justice system as a whole to be designed carefully, so that New Zealand s criminal justice system can provide a sustainable platform to rehabilitate and reintegrate members of society. justspeaknz@gmail.com Website: justspeak.org.nz Address: P.O. Box , Lower Hutt, NZ Phone: Join the conversation with JustSpeak: 5

6 6