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Prisoners' and Victims' Claims Bill (Consistent) (Sections 14, 19(1), 21(1), 27(1) (3)) [2004] NZBORARp 44 (17 December 2004)
Last Updated: 27 March 2021
![crown-2.jpg (6568 bytes)](2004_4400.jpg)
Prisoners' and Victims' Claims Bill
17 December 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
Prisoners' and Victims' ClaimsBill (241-1)
Our Ref: ATT114/1298
- Further
to our advice dated 6 December 2004, which indicated our conclusion that the
Prisoners’ and Victims’ Claims Bill
("the Bill") was consistent with
the New Zealand Bill of Rights Act 1990 ("BORA"), we have set out the basis of
that conclusion below.
Introduction
- The
Bill creates specialised schemes for the award and receipt of monetary
compensation under the BORA, the Human Rights Act 1993
and the Privacy Act 1993
in respect of claims brought by prison inmates and others subject to control or
supervision as a result
of a prison sentence ("inmate claims") and for the
bringing of civil proceedings against plaintiffs who receive compensation for
inmate claims by the victims of their offending. The Bill also suspends the
operation of limitation periods for claims against prison
inmates by victims for
the period of inmates’ incarceration.
- The
Bill raises two significant issues in respect of the BORA, which are considered
further below:
- The
effect of the Bill upon the availability of monetary compensation for breaches
of BORA rights; and
- The
consistency of the simplified procedure provided under the Bill for
victims’ claims with the right to natural justice under
s 27(1)
BORA.
- In
addition to these, it may be suggested that the Bill raises issues in respect of
its retrospective application and more generally
in respect of whether its focus
upon litigation involving prison inmates amounts to discrimination. These are
also considered further
below, as are a number of minor BORA
issues.
Constraints upon award and payment of monetary
compensation
- The
first issue raised by the Bill arises in respect of the procedural constraints
on both the award and the payment of monetary compensation
in respect of inmate
claims. The availability of monetary compensation, where appropriate, to a
person whose rights have been breached
is an underlying element of the right to
an effective remedy for breach and so to the protection and promotion of those
rights under
the BORA: see, for example, Simpson v Attorney-General
[Baigent’s Case] [1994] NZCA 287; [1994] 3 NZLR 667, 676, 691, 703 and 718, relying
upon art. 2(3) of the International Covenant on Civil and Political
Rights.[1]
Award
of monetary compensation
- Clause
13(1)(a) of the Bill provides that monetary compensation may not be paid in an
inmate claim unless the plaintiff has made reasonable
use of available
complaints procedures. It thus imposes a substantive precondition on the
availability of monetary compensation as
a remedy, as it would follow that a
claim by a plaintiff who had not made reasonable use of complaints procedures
might be denied
such compensation even if it were the only effective
remedy.
- However,
that precondition is in our view justifiable by reason of the availability of
specialised complaints procedures, as noted
in cl. 7, and the desirability in
the context of penal institutions and associated regimes of inmates making
appropriate use of those
procedures.
- Further,
and in any event, the discretion accorded to the responsible Court or Tribunal
under cl. 13(2) to determine the scope of
reasonable use in the circumstances
appears to allow that Court or Tribunal to take into account the nature of the
breach claimed
in determining whether a plaintiff has satisfied that
requirement. Given the obligation under s 6 of the BORA to interpret legislation
consistently with that Act where possible, we consider that cl. 13(1)(a) would
be interpreted so as to preclude the award of monetary
compensation where, for
example, there had been a failure in bad faith to make use of complaints
mechanisms but not where such compensation
is a plainly necessary remedy.
- Second,
clause 13(1)(b) provides that compensation is only to be paid where another
remedy is not sufficient, while cl. 14(1) provides
that the assessment of
whether to award monetary compensation and, if so, in what amount must include
consideration of a range of
factors including mitigating steps taken by either
party and various other factors. However, neither clause precludes an award of
compensation where it is necessary to do so in order to provide an effective
remedy and so no inconsistency arises.
Payment of monetary
compensation
- Thirdly,
the payment of monetary compensation to plaintiffs in inmate claims is subject
to a number of procedural constraints. Under
cl. 16 of the Bill, monetary
compensation is paid to the Secretary for Justice and is subject both to
deduction of legal aid, reparation
and related debts under cl. 17 and, under
cll. 19-24, 46 and 48 to retention pending the making and determination of
claims by any
victim of the plaintiff’s offending.
- The
effect of these provisions is that a plaintiff awarded monetary compensation in
an inmate claim may be prevented from receiving
some or all of the amount
awarded and, in any event, the payment of compensation would be delayed for some
time whether or not claims
against the plaintiff are made.
- In
respect of the first of these, the deduction of amounts from compensation is
not, however, inconsistent with the obligation to
provide an effective remedy.
The fact that a plaintiff may not receive the benefit of some or all of a
judgment sum because he or
she has debts or other liabilities to others does not
render that judgment ineffectual as a vindication of the right breached.
- In
respect of the second, the delay in payment of compensation pending the making
of claims does amount to a prima facie constraint
on the availability of an
effective remedy for breach of the plaintiff’s rights. However, the
imposition of such a delay can
be understood as proportionate in light of the
intention of the Bill to lessen the disincentives encountered by victims of
criminal
offending in seeking civil redress against offenders by affording an
opportunity to bring claims after an award of compensation has
been made and
before the proceeds of inmate claims can be dissipated. Further, the delay is
limited to what is reasonably necessary
by the provision under cl. 24 for the
prompt payment of withheld monetary compensation where no victims can be
identified and the
time limits under cl. 26 for making claims.
Victims’ Special Claims Procedure
- The
Bill creates a separate, and procedurally simplified, scheme for claims against
plaintiffs who receive compensation for inmate
claims by the victims of their
offending. The replacement of the conventional civil claims procedure could be
seen to raise issues
of procedural fairness under s 27(1) of the BORA.
- The
Bill provides the following:
15.1 Claims are to be determined on the
papers (cl. 32), with oral submissions only in exceptional cases (cl. 35);
15.2 Findings from criminal trials are to be received as conclusive evidence
(cl. 34);
15.3 A right of appeal to the High Court, but only on a question of law (cl.
47(1)); and
15.4 The Tribunal is accorded broad discretion to admit other evidence,
whether or not admissible in a court (cl. 55).
- Of
these, the first and fourth of these provisions are discretionary powers of the
Tribunal and so, in order to be valid, must be
exercised in accordance with BORA
protections, including s 27(1): see Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR
58, 72. It would follow that, where fairness required an oral hearing or the
rejection of particular evidence, s 27(1) would require
the Tribunal to do so.
- The
second issue is the receipt of findings from criminal trials as conclusive
evidence. The effect of this provision is to permit
facts agreed, relied upon
for conviction or otherwise proven at trial to be taken as conclusive in a claim
before the Tribunal and
so precluded from challenge. Here, procedural fairness
is reliant upon – but in our view sufficiently guaranteed by –
the
fairness of the trial procedure in making such findings.
- The
third issue is the limited right of appeal. We note, however, that fairness can
be ensured by an appeal on a point of law and
that s 27(1) does not go so far as
to require a substantive appeal or a further right of appeal beyond the High
Court.
Retrospectivity
- It
may also be suggested that the Bill gives rise to two other issues under BORA.
The first of these is that various provisions of
the Bill have retrospective
effect:
19.1 Inmate claims fall within the general scope of the Bill
whether the act or omission concerned occurred before or after commencement
(cl.
6(1)(a)(i));
19.2 More specifically, inmate claims are subject to the scheme concerning
the award of monetary compensation noted in paragraph 5
above whether brought
before or after commencement, unless the claim has been determined at first
instance before commencement (cl.
12(1));
19.3 All payment of compensation after commencement in respect of inmate
claims are subject to the scheme for such payments noted
in paragraph 0 above,
whether the claim was brought before or after commencement (cl. 16(1)); and
19.4 The suspension of limitation periods in respect of claims by victims
against offenders applies whether the claim was brought
before or after
commencement (cl. 59(2)).
- As
the Legislation Advisory Committee has noted, the application of new legislation
to existing claims or proceedings raises important
issues of legislative
principle.[2]
- However,
while BORA deals expressly with retrospectivity in s 26(1), it does so only in
the context of criminal offences and penalties
rather than the civil matters
with which the Bill is concerned. The Court of Appeal has emphasised that the
scope of s 26 is limited
to the criminal process, rather than to related civil
proceedings: Daniels v Thompson [1998] NZCA 3; [1998] 3 NZLR 22, 34. It may be noted in
passing that the reasoning of the Court also establishes that the prohibition on
double jeopardy does not
apply in respect of civil matters and so does not arise
in relation to the Bill.
- Further,
the contention that a broader prohibition on retrospectivity arises under BORA
as an element of the right to natural justice
affirmed by s 27(1) BORA was
broadly rejected in Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40,
54-55. Commentators have also suggested that the application of legislation to
pending litigation with the effect of depriving a
litigant of the proceeds of
litigation engages s 27(3) BORA, which
provides:[3]
"Every
person has the right to bring civil proceedings against, and to defend civil
proceedings brought by, the Crown, and to have
those proceedings heard,
according to law, in the same way as civil proceedings between individuals."
- However,
this contention was also rejected in Westco Lagan, above, where it was
held (at 55):
"Section 27(3) ... cannot restrict the power of
the legislature to determine what substantive rights the Crown is to have.
Section 27(3) merely directs
that the Crown shall have no procedural advantage
in any proceedings to enforce rights if such rights exist."
- The
question is therefore whether the retrospective provisions in the Bill afford
the Crown a procedural advantage in pending proceedings.
Of those noted above,
cll. 16(1) and 59(2) do not affect the position of the Crown in pending
proceedings at all but rather alter
the capacity of victims to claim against
offenders.
- Clause
12(1)(a) does affect pending proceedings involving the Crown that have not been
determined at first instance by subjecting
those proceedings to the constraints
in cll. 13(1) and 14 noted at paras. 6 and 9 above. These do not confer any
procedural advantage
upon the Crown in terms of Westco Lagan, above. It
follows that no issue arises under s 27(3).
Discrimination
- The
second issue that may be suggested in respect of the Bill is whether the
differential treatment of prison inmates under the Bill
amounts to
discrimination contrary to BORA. However, the status of being a prison inmate is
not a prohibited ground of discrimination
in terms of s 19(1) BORA and s 21(1)
of the Human Rights Act 1993 and no issue arises for that reason.
- It
is also noted that in any event differential treatment does not amount to
discrimination where it involves a reasonable and objective
distinction for a
legitimate purpose: see, for example, Quilter v Attorney-General [1997] NZCA 207; [1998] 1
NZLR 523, 552. The differential treatment of inmate claims under the Bill can be
understood in these terms by reference to the different context
and character of
inmate claims, most notably the availability of specialised complaints
procedures and the importance of encouraging
use of those procedures, as noted
in paragraph 7 above, and, as noted at paragraph 13 above, the practical
difficulty faced by victims
in seeking to recover compensation from
offenders.
Minor issues
- Lastly,
it should be noted that the Bill contains a number of discretionary powers that
engage BORA rights:
28.1 The power of the Special Claims Tribunal
("Tribunal") to require the provision of information (cl. 36) engages the right
of free
expression under s 14 BORA and, arguably, the rights of persons in
detention under ss 22 and 23; and
28.2 The power of the Tribunal to restrict publication of its proceedings
(cl. 38) also engages the right of free expression under
s 14.
- However,
such discretionary powers must be exercised consistently with BORA, as required
by s 6 of that Act and as noted in Drew, above, and accordingly no issue
of inconsistency arises.
Yours sincerely
Val Sim Crown Counsel
|
Ben Keith
|
Crown Counsel
|
Associate Crown Counsel
|
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Prisoners' and Victims' Claims Bill. It should not be used or acted upon for any
other purpose. The advice does
no more than assess whether the Bill complies
with the minimum guarantees contained in the New Zealand Bill of Rights Act. The
release
of this advice should not be taken to indicate that the Attorney-General
agrees with all aspects of it, nor does its release constitute
a general waiver
of legal professional privilege in respect of this or any other matter. Whilst
care has been taken to ensure that
this document is an accurate reproduction of
the advice provided to the Attorney-General, neither the Ministry of Justice nor
the
Crown Law Office accepts any liability for any errors or omissions.
[1] Each State Party
to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding
that the violation
has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative
or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
[2] Guidelines on
Process and Content of Legislation (2001 ed.)
51-53.
[3] See, for
example, Palmer New Zealand’s Constitution in Crisis (1992) 69.
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