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Prisoners' and Victims' Claims (Continuation and Reform) Amendment Bill (Consistent) (Sections 5, 26) [2012] NZBORARp 70 (3 December 2012)
Last Updated: 28 April 2019
Prisoners’ and Victims’ Claims (Continuation and Reform)
Amendment Bill
3 December 2012 Attorney-General
Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment
Bill (PCO 16948/1.7)
Consistency with the New Zealand Bill of Rights Act
1990 Our Ref: ATT395/140
- We
have examined the Prisoners’ and Victims’ Claims (Continuation and
Reform) Amendment Bill (PCO 16948/1.7) for consistency
with the New Zealand Bill
of Rights Act 1990. We have concluded that whilst the Bill raises some issues
under the Bill of Rights
Act, it appears to be consistent with that Act.
- The
Bill amends the Prisoners’ and Victims’ Claims Act 2005 by: making
permanent the Act’s scheme which restricts
awards of compensation and
provides a victims’ claims process[1]; expressly providing that the Act applies
and has always applied to unlawful detention claims[2]; and suspending the civil limitation
period from when compensation is paid to the Secretary of Justice until the
deadline for the
filing of a victim’s claim under the Act (to ensure
delays in assessing deductions to not prevent victims from being able to
make
claims).[3]
- The
Bill raises the following issues under the Bill of Rights Act:
3.1 The Bill removes the expiry provisions introduced as part of the principal
Act and extended in 2010 and 2012, making the principal
Act permanent. It is
therefore necessary to reconsider the consistency of the operative provisions of
the principal Act with the
right to an effective remedy;
3.2 The Bill clarifies that the principal Act applies and is deemed always to
have applied to claims for compensation for unlawful
detention that raises a
question of possible retrospectivity; and
3.3 The Bill in treating claims by prisoners differently raises a possible issue
of discriminatory treatment.
- In
summary we conclude that none of these issues give rise to an inconsistency with
the Bill of Rights Act as:
4.1 The principal Act is consistent with the right to an effective remedy.
Firstly, the preconditions for awarding damages do not
preclude an effective
remedy. Damages may be awarded only after reasonable use of complaint
mechanisms, but that precondition does
not preclude damages where
necessary. The requirement that damages may only be awarded after consideration
of a range of relevant
factors is consistent with the approach adopted by New
Zealand courts for the awarding of damages for rights breaches. Secondly,
the
scheme for deduction of debts due to victims and others does limit the
effectiveness of the remedy. It delays prisoners receiving
damages that are
intended to have a compensatory effect, particularly for the prisoner’s
pecuniary and intangible losses.
However, this limit is justifiable under s 5 of the Bill of Rights Act.
Damages awarded under human rights instruments can properly
be subject to the
same sorts of conditions and restrictions, such as attachment and set-off, as
any other civil claim.
4.2 To the extent the amendments in the Bill relating to unlawful detention
claims may have a retrospective effect, no issue arises
under s 26 of the Bill
of Right Act. That only protects against retrospectivity in relation to criminal
offences and penalties.
4.3 The differential treatment of prisoners does not raise any issue with s 19
of the Bill of Rights Act as status as a prisoner
is not a prohibited ground of
discrimination.
Consistency of the principal Act with the right to an effective remedy
- The
Bill raises an issue with the right to an effective remedy for breaches of the
Bill of
Rights in that it makes permanent the Act’s scheme
which restricts awards of compensation, delays awards to allow victims’
claims and allows deduction of certain of the prisoner’s other civil
debts, including those arising from the victims’
claims process.[4] That scheme affects the award and
receipt of damages for breaches of the Bill of Rights Act (and other specified
rights[5]) to prisoners and other persons
subject to sentences for criminal offending in the following ways:
5.1 Damages for breach of the Bill of Rights Act may only be awarded if the
court or tribunal is satisfied that the prisoner has
first made reasonable use
of reasonably available internal and external complaints mechanisms and, that
there are no other remedies
which can provide the prisoner with effective
redress.[6] Further, damages may be
awarded only after consideration of a range of relevant factors.[7]
5.2 Compensation is subject to deductions of debts and inchoate claims, and
receipt of compensation is delayed pending any such claims.[8] Damages that would otherwise have
been paid to prisoners must instead be paid to the Secretary for Justice. Such
amounts are then
applied to satisfy: the prisoner’s obligations to repay
legal aid; orders for reparation imposed upon the prisoner at the time
of
sentence; and any outstanding amounts owed to the prisoner’s victims who
have already obtained awards from the Victims’
Special Claims Tribunal.
Any residual funds will ordinarily be held in trust for at least six months, to
enable other victims to
make claims through the Tribunal using a simplified
claims procedure.[9]
- The
Bill of Rights Act does not make any express provision as to remedy. In
Baigent’s Case[10] it was
held to include a right to an effective remedy for interference with it and that
it is for the courts to fashion the most
effective remedy in the particular
circumstances of the case.[11] The form of
an effective remedy may be subject to legislative modification and restrictions
upon the availability of compensation
as a remedy have been upheld.[12] In
Taunoa v
Attorney-General, the Supreme Court confirmed that rights breaches should be
redressed by the provision of effective, appropriate and proportionate
remedies.
A majority of the Court assigned the remedy of Bill of Rights Act damages a
residual role, to be awarded only (where necessary)
as the final component of an
effective Bill of Rights Act remedy.[13]
New Zealand courts have stressed the effectiveness of declarations as Bill of
Rights Act remedies.[14]
- New
Zealand and international case law is to the effect that awarding damages for
rights breaches serves at least three inter-related
purposes:
7.1 Vindicating the right: That is, publicly affirming the importance of
rights by ‘marking their breach’ and ensuring that they are not
whittled
away by attrition. It recognises that each breach harms the state and
society more generally because it impairs public
confidence in
the government’s observance of rights. [15]
7.2 Deterring further breaches by other state actors in the future: By
imposing a financial penalty on the government entity which has breached rights
on this occasion, a court or tribunal hopes to
influence the behaviour of all
government entities to accord greater respect to rights in the future.[16]
7.3 Compensating the plaintiff: That is, remedying the loss suffered by
the victim of the breach. This may include physical, psychological and/or
pecuniary (ie economic)
loss, as well as harm to intangible interests (eg
distress, humiliation, embarrassment and anxiety).[17] So far as possible, the victim should
be placed in the same position as if the breach had not occurred.[18] In New Zealand there is no compensatory
role in cases of personal injury, as accident compensation legislation provides
an effective
remedy for compensating personal injuries.[19]
- In
Taunoa, the Supreme Court affirmed that the main goals of the remedy of
damages for rights breaches were: vindication;[20] deterrence from future rights
breaches;[21] and denouncement of the
breach to mark society’s disapproval of the breach of rights in issue.[22] At least two judges were of the view
the compensatory role of making amends to the victim of a breach was only a
secondary or subsidiary
function of public law damages.[23]
No unjustifiable limit on right to an effective remedy
- Applying
these principles to the Bill, there is no limit on the right to an effective
remedy by the preconditions for the award of
damages. Damages may be awarded
only after the prisoner has made reasonable use of reasonably available
complaints mechanisms, but
that precondition does not preclude damages where no
other effective redress is available.[24]
Further, the requirement for a court considering a damages award to have regard
a range of relevant factors simply codifies the approach
adopted by courts to
the awarding of damages for rights breach (as discussed above), that they are a
remedy of last resort, but remain
available when necessary to give the victim an
effective remedy.
- The
deduction of debts due to the Crown (ie legal aid) and to compensate victims
appears consistent with the right to an effective
remedy:
10.1 Any impact upon the vindication and deterrence objectives of damages is
marginal and does not meaningfully impair their effectiveness
as a remedy.
Because the Crown and victims may obtain some of the fruits of the
prisoner’s damages award, the impact of the
court or tribunal’s
denouncement of the Crown’s conduct could be said to be diminished, and
its deterrent effect minimised.
However, the damages award still stands as a
clear
indication of the judiciary’s disapprobation of
rights breaches. And even if an award is seen
to be diverted towards ‘more worthy’ causes, it will still be a
net cost to the Crown as
defendant and an involuntary and public deduction from the breaching
entity’s revenue,
which can be expected to have some salutary effect;
10.2 Nor does it limit the effectiveness of the compensatory purpose of the
remedy per se
in light of the fact that the diminution of
the award of damages is as a result of the
prisoner’s own liabilities, which exist as a result of that
person’s conduct, and is used to satisfy debts which the prisoner
could at
least in principle have been required to satisfy anyway.[25] Prisoners may ultimately receive an
amount of damages which is less than what a court or tribunal has found is
required to return
them to the position they were in prior to the rights breach.
However, this result is not because of any ineffectiveness of the remedy
per
se. Rather, it is because the prisoner has incurred other debts (legal aid,
reparation orders imposed at sentence and extant or inchoate
civil liabilities
to their victims), the deduction of which is facilitated by the PVC Act but
which could be claimed by way of attachment
and set-off in any case.
- Further,
to the extent that the issue of deductions has been judicially considered, the
deduction of an individual’s debts from
damages awarded is not regarded as
inconsistent with the right to an effective remedy. The issue has not been
directly considered
in
New Zealand. The issue has had limited
consideration under the European Convention on Human Rights. While in an early
case, the European
Court of Human Rights ordered that an award of damages be
made free from attachment of unrelated civil debts,[26] and that Court has continued to
describe any deduction or attachment as ‘incongruous’, the position
is now settled that
it is open to Convention states to permit such deductions.[27] The same broad conclusion may be drawn
from dicta in New Zealand and other jurisdictions that damages awards under
human rights instruments
can properly be subjected to the same sorts of
reasonable conditions and restrictions as any other civil claim.[28]
- That
said the effectiveness of the compensation objective of the damages remedy is
limited by the delay that prisoners experience
in receiving damages meant to
restore them to their pre-breach position. The losses suffered by and harm done
to a prisoner will
go uncompensated for some months. Whilst the physical and
psychological impacts upon the prisoner are deemed by virtue of the accident
compensation scheme and the bar upon compensatory awards for personal injury to
be addressed by public health care and by ACC, the
delay in receiving an award
for pecuniary losses and intangible harms means that the economic and emotional
recovery of a victim
of a rights breach will be delayed by at least six months
pending victims’ claims. The effectiveness of the remedy is diminished
accordingly.[29]
- This
limit is justifiable under s 5 of the Bill of Rights Act for the following
reasons. The objective of the scheme is to provide
a prisoner’s victims a
meaningful opportunity to recoup some of their own losses by making a claim on
the funds made available
through a damages award before that prisoner has an
opportunity to dissipate them.[30] In
light of the rarity of claims by victims of offending and the attendant
practical difficulties of pursuing and enforcing such
claims otherwise, giving
victims this opportunity for redress serves another important governmental
purpose (ie supporting victims
of crime to recover) which is also recognised by
the international community.[31] In
addition, the delay is not unreasonably long, when viewed in the context that
any victim of a rights breach who would necessarily
experience some delay in
obtaining damages for that breach. Further, damages awards under human rights
instruments can properly be
subject to the same sorts of conditions and
restrictions, such as attachment and set-off, as any other civil claim.
Other issues considered
Retrospectivity
- To
the extent the amendments in the Bill that expressly provide that the Act
applies and has always applied to unlawful detention
claim[32] have any retrospective effect, no issue
arises in respect of consistency with s 26 of the Bill of Rights Act. That only
protects against
retrospectivity in relation to criminal offences and
penalties.
Differential treatment of prisoners
- The
differential treatment of prisoners does not raise issues of discrimination
contrary to s 19 of the Bill of Rights Act and/or
the Human Rights Act 1993, as
status as a prisoner is not a prohibited ground of discrimination.[33] We note however that this differential
treatment of prisoners may be a breach of Article 2(1) of the International
Covenant on Civil
and Political Rights (ICCPR). That provides states must
respect and ‘ensure to all individuals’ the ICCPR rights without
distinction of any kind, including ‘other status’, which is likely
to include status as a prisoner.[34]
- We
also observe that article 14(1) of the Convention against Torture and other
Cruel, Inhuman or Degrading Punishment or Treatment
provides that states must
ensure that torture victims obtain redress and have an enforceable right to fair
and adequate compensation.
No direct issue of inconsistency arises as New
Zealand has entered a reservation to art 14 to the effect that it reserves the
right
to award compensation to
victims of torture ‘only at the
Attorney-General’s discretion, as provided for under the Crimes of Torture
Act 1989. However,
the Committee against Torture has expressed concern over the
PVC Act in its most recent periodic review.[35]
Yours sincerely
Crown Law
Crown Counsel
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Associate Crown Counsel
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Bookmarks
1. Clauses 4(a),(b), 5, 9 and 10.
- Clauses
4(c),(d), 6, 7 and 8.
- Clauses
4(e) and 11-13.
- We
note that courts which have been called upon to consider the application of the
PVC Act have not given any indication that they
regard the Act as potentially
inconsistent with the Bill of Rights Act. In Edgecombe v Attorney-General
[2005] DCR 780; Firmin v Attorney-General HC Christchurch
CIV-2007-409-1429 (15 February 2007) and Reekie v Attorney-General [2012]
NZHC 1867, no damages awards were made. In Forrest v Attorney-General
[2012] NZCA 125; [2012] NZAR 798 (CA) a prisoner was awarded
$600 for an unlawful
strip search in breach of s 21 of the Bill of Rights Act.
- See
s 6 definition of “specified claims” of the Crown to which the Act
applies.
- PVC
Act s 13.
- PVC
Act, s 14.
- PVC
Act Subpart 2 of Part 2, this applies to court awarded damages and out-of-court
settlements.
- Whilst
such claims could ordinarily have been brought through the ordinarily civil
justice system, the PVC Act offers a fast-track
for resolution of these claims
by the Tribunal.
- Simpson
v Attorney-General (Baigent’s Case) [1994] NZCA 287; [1994] 3 NZLR 667 (CA). The Court
was influenced by the International Covenant on Civil and Political Rights 999
UNTS 171 (opened for signature 19 December 1966, entered into force 23 March
1976), art 2(3)(a). In addition, ICCPR arts 9(5) and 14(6), and
the Convention
against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment
1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June
1987), art 14, are also relevant. However, New Zealand has entered
reservations
against: ICCPR art 14(6) to the effect that it ‘reserves the right not to
apply art 14(6) to the extent that it
is not satisfied by the existing system
for ex gratia payments to persons who suffer as a result of a miscarriage
of justice’; and CAT art 14 to the effect that it reserves the right
to
award compensation to victims of torture only at
the
Attorney-General’s discretion.
- Note
however that the Bill of Rights Act does not protect a right to an effective
remedy for interferences with privacy or tortious
conduct which is not also
inconsistent with the Bill of Rights Act.
- Wilding
v Attorney-General [2003] NZCA 205; [2003] 3 NZLR 787 (CA) at [14] ff; Dunlea v Attorney-
General [2000] NZCA 84; [2000] 3 NZLR 136 (CA); Attorney-General v Chapman [2011]
NZSC 110; [2012] 1 NZLR 463
13. Taunoa v Attorney-General
[2007] NZSC 70; [2008] 1 NZLR 429 (SC) at [258], [373] , [300], [305], [327]
(per Tipping J, noting that the remedial question will often be whether Bill
of Rights Act damages must be added to a declaration
to provide an effective
remedy).
- As
publicly identifying the breach (see Manga v Attorney-General [2000] 2
NZLR 65 (HC) at [133]), warning of more significant consequences for future
non-compliance (see Taunoa at [255]) and condemning the
government’s deviation from a rights standard, and promoting political
accountability by increasing
the chances that the matter will be brought to
Parliament’s attention (see Du v District Court at Auckland [2005] NZHC 276; [2006]
NZAR 341 (HC) at [74].)
- See
Taunoa at [109], [255] , [317], and Vancouver (City) v Ward [2010]
2 SCR 28 at [25], [28].
16. See Taunoa at [255], [258], [320]
and Ward at [29].
- Ward
at [27]. See also Baigent’s Case at p 678; Taunoa at
[109], [234], [322].
- Ward
at [49].
- Wilding
v Attorney-General [2003] NZCA 205; [2003] 3 NZLR 787 at [11], [14]–[15]; Taunoa
at [322]. 20. Taunoa at [106], [253], [300], [366],
[385].
21. Ibid at [109] and fn 187, [253], [258], [366], [368],
[369], [373]; cf the criticism of Tipping J at [318]–[320].
22. Ibid at [253], [255], [259], [261], [300], [318].
- Ibid,
Blanchard J at [259], McGrath J at [373] and Henry J agreeing with both
Blanchard and Tipping JJ on the proper judicial approach
to Bill of Rights
remedies at [385]. Elias CJ at [109], [111] and Tipping J at [317]–[318]
were supportive of a primary compensatory
role for Bill of Rights Act
remedies.
- Section
13(1)
- This
is an important distinction between the PVC Act and the Prisoners’ and
Victims’
Claims (Redirecting Prisoner Compensation) Bill,
which would have acquired the prisoner’s property (the residual damages)
by
reason of their status as a prisoner and redirected it for general (albeit
victim-related) governmental purposes rather than applying
it to satisfy some of
the prisoner’s own debts, before passing any residue on to them.
- See,
eg, Ringeisen v Austria (Interpretation of the judgment of 22 June
1972)
(2614/65) Court (Chamber), ECHR 23 June 1973.
- See
the cases cited in Committee of Ministers of the Council of Europe Monitoring
of the payment of sums awarded by way of just satisfaction: An overview of the
Committee’s present practice CM/Inf/DH(2008)7 final at fns 116,
120–122 and M
Pellonpää ‘Individual Reparation
Claims under the European Convention on Human Rights’ in A Randelzhofer
&
Christian Tomuschat (eds) State Responsibility and the Individual:
Reparation in Instances of Grave Violation of Human Rights (1999) 109, 128
(concluding that “Contracting parties [to the European Convention on Human
Rights] are free, subject to their
own laws, to allow attachment by private
creditors”).
- See,
for example, Wilding v Attorney-General (ACC statutory bar bearing on
compensation awards), and also see, eg, P F Sugrue Ltd v Attorney-General
[2003] NZCA 204; [2004] 1 NZLR 207; Pearson v Canada [2006] FCJ 1175 and Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights
Law and Serious Violations of
International Humanitarian Law (all accepting limitation periods and/or
delay as factor affecting right to compensation),
- In
the context of the Bill of Rights Act right to be free from torture and cruel
treatment, the United Nations Committee against Torture
has recently emphasised
that the rehabilitative component of damages may not be postponed (arguably
referring not just to physical
and psychological rehabilitation, but also to
emotional rehabilitation) and that states should minimise hardship to
complainants
and avoid impediments to their ability to obtain redress: see
General Comment No 3: Implementation of Article 14 by States Parties
CAT/C/GC/3 (2012) at [12], [29], [39]. However, we note that New Zealand has
entered a reservation to art 14 to the effect that it
reserves the right to
award compensation to victims of torture only at the Attorney-General’s
discretion. Whilst this reservation
effectively disapplies art 14 in respect of
New Zealand, the Committee’s comments are nonetheless relevant to the
broader question
of the content of an effective remedy.
- We
put to one side the deductions for legal aid repayments and to satisfy
reparation orders. These deductions could be made quickly
and the residual
passed on to the prisoner without the need for the six-month delay. The sole
rationale for the delay is to facilitate
the prisoner’s victims having a
reasonable opportunity to make a claim to the funds.
- See,
eg, Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power GA Res 40/34, A/Res/40/34 (1985) at [4]–[5].
- Clauses
4(c),(d), 6, 7 and 8.
- The
prohibited grounds are enumerated in s 21 of the Human Rights Act 1993: sex,
marital status, religious belief, ethical belief,
race, colour, national or
ethnic origin, age, disability, political opinion, employment status, family
status and sexual orientation.
- See,
eg, Clift v United Kingdom (7205/07) Section IV, ECHR 13 July 2010 at
[55]–[63].
- Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CAT/C/NZL/5 (2007)
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 (Continuation and Reform) Amendment
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.
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