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) Our Ref: ATT395/140 Consistency with the New Zealand Bill of Rights Act 1990 1. 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. 2. 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] 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. 4. 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 5. 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] 6. 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] 7. 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] 8. 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 9. 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.
10. 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. 11. 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] 12. 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]
13. 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 14. 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 15. 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] 16. 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 Jane Foster Daniel Perkins
Crown Counsel Associate Crown Counsel Bookmarks 1. Clauses 4(a),(b), 5, 9 and 10. 2. Clauses 4(c),(d), 6, 7 and 8. 3. Clauses 4(e) and 11-13. 4. 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] NZAR 798 (CA) a prisoner was awarded $600 for an unlawful strip search in breach of s 21 of the Bill of Rights Act. 5. See s 6 definition of specified claims of the Crown to which the Act applies. 6. PVC Act s 13. 7. PVC Act, s 14. 8. PVC Act Subpart 2 of Part 2, this applies to court awarded damages and out-of-court settlements. 9. 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. 10. Simpson v Attorney-General (Baigent s Case) [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. 11. 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. 12. Wilding v Attorney-General [2003] 3 NZLR 787 (CA) at [14]ff; Dunlea v Attorney- General [2000] 3 NZLR 136 (CA); Attorney-General v Chapman [2011] NZSC 110; [2012] 1 NZLR 463
13. Taunoa v Attorney-General [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). 14. 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 [2006] NZAR 341 (HC) at [74].) 15. 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]. 17. Ward at [27]. See also Baigent s Case at p 678; Taunoa at [109], [234], [322]. 18. Ward at [49]. 19. Wilding v Attorney-General [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]. 23. 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. 24. Section 13(1) 25. 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. 26. See, eg, Ringeisen v Austria (Interpretation of the judgment of 22 June 1972) (2614/65) Court (Chamber), ECHR 23 June 1973. 27. 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 ). 28. 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 [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),
29. 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. 30. 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. 31. 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]. 32. Clauses 4(c),(d), 6, 7 and 8. 33. 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. 34. See, eg, Clift v United Kingdom (7205/07) Section IV, ECHR 13 July 2010 at [55] [63]. 35. 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.