Tuesday, February 01, 2005

Against the Prisoners' and Victims' Claims Bill

I'm currently working on my submission on the Prisoners' and Victims' Claims Bill and trying to hone down my sense of raw outrage into the sorts of points I can make to a Parliamentary Select Committee. The key ones I think are these:

  • For all practical purposes, the bill removes the right of prisoners and former prisoners to sue the government for mistreatment while under the government's care. Yes, the formal right remains, but by demanding that all other avenues of complaint are first exhausted (no matter the fact that those avenues are closed to prisoners), and ensuring that no matter the justice of their claim, they will not receive any financial redress (or their abusers any financial punishment), the bill effectively ensures that such suits will never be brought. There is no point in complaining to a tribunal which is stacked against you. This denial of natural justice will both give our prison officers a free hand for sadism, and encourage prisoners to seek their own justice by their own means.
  • The alteration in prisoners' and former prisoners' rights in the court system constitutes an arbitrary and retrospective punishment imposed by Parliamentary fiat. It is a central principle of any justice system that a prisoner is only liable to serve the sentence handed down at conviction, unless convicted of another crime in the interim. But if this bill is passed, every prisoner currently in jail, and every former prisoner who has recently been released, will have something added to their sentence.
  • The above is inconsistent with the New Zealand Bill of Rights Act 1990 and various international human rights instruments to which this country is a party. The removal of the practical ability to sue the government violates section 27 of the NZBORA, Articles 8 and 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 14 of the Convention Against Torture. The retrospective increase in sentences violates Article 26 (2) (and 25 (g)) of the NZBORA, Article 11 of the Universal Declaration of Human Rights, and Article 15 of the International Covenant on Civil and Political Rights. It also violates our fundamental values of justice and fairness which these legal instruments encode.
  • With such a strong focus on limiting prisoner's ability to gain financial redress, it is difficult to escape the conclusion that the primary purpose of the bill is limiting the crown's financial exposure for its agents' wrongdoing, rather than ensuring justice for all New Zealanders.
  • There is a better way. If the government is truly concerned about ensuring that victims of crime are properly compensated for their suffering, it should encourage greater use of reparations at sentencing and make victims creditors (or even preferred creditors). Reparations could then be recovered through the court system, with the government offering legal aid to reduce costs to victims. Alternatively, it could establish a scheme for repayment through the tax system, similar to that used for repayment of student loans. This avoids gross infringements of human rights, though it may require some tinkering with bankruptcy laws.

Anything I seem to have missed?


That about sums things up.

There's another practical side-effect (which, come to think of it, also applies to your counter-proposal): it makes rehabilitation less inviting. The idea of making good legitimately doesn't hold much appeal if you know it's all going to be taken away from you once you earn it.

And is it true what it said in the Dom Post (I haven't looked at the bill) that victims can allow organisations (like Victim Support of the Sensible Sentencing Trust) to apply for the compensation if they do't want to? Cos that would be fucked up.

Oh, and I heard someone was invoking the Magna Carta in a court case at the moment. Can we work that in anywhere.

Anyway, I don't think the above are really key points compared to what you have, so I'll leave you to it.

Posted by Lyndon : 2/02/2005 05:51:00 PM

Surely the answer is simple enough - don't run the prisons like Abu Graib and there won't be a problem in the fiurst place. Treat the cause not the symptoms

Posted by Anonymous : 2/02/2005 10:26:00 PM

Of course - unfortunately that's easier said than done. The Stanford Prison Experiment showed that the power relationship institutionalised within a prison encourages abuse; the only way to stop this is with constant oversight and accountability, things the Department of Corrections seems highly resistant to (to say the least).

Under the present system, the courts at least provide Corrections' management with an incentive to prevent abuse, by making them look bad and causing the Minister to ask nasty pointy questions about why they've just had to pay out all that money. Or at least it should - unfortunately the reaction of the government to the Taunoa case has been to blame those bringing it, rather than those who developed and ran an illegal and inhumane prison system and incurred the costs (i.e. Auckland Prison management). If the bill is passed, even this limited incentive will disappear.

Anyway, I've done my bit; my submission was sent off today. Hopefully someone on the committee will actually bother reading it...

Posted by Idiot/Savant : 2/03/2005 07:48:00 PM