SARC on prisoners’ civil claims

The Victorian Parliament is currently considering a bill to quarantine (for twleve months) the money prisoners receive from the state pursuant to claims for civil wrongs. The Second Reading Speech explained the purpose of the Bill as follows:

The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement. The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.

The Bill has its origins in a political debate in New Zealand about claims being made under its Bill of Rights Act (which, in contrast to the Charter, creates both a  cause of action for breach of human rights and a remedy of damages.) Challenges to the NZ Act have to date failed on procedural grounds.

The Human Rights Law Resources Centre made a lengthy submission to SARC on the Bill:

The Centre has grave concerns about the impact that the Bill would have on the following human rights. The rights listed below are protected under the Charter at the sections indicated.

(a) The right to recognition and equality before the law (section 8).

(b) The right to privacy and reputation (section 13).

(c) The right to protection of families and children (section 17).

(d) Property rights (section 20).

(e) The right to humane treatment when deprived of liberty (section 22).

(f) The right to fair hearing, including the right to equal access to courts (section 24).

(g) The right to an effective remedy (which is fundamental to the protection of all human rights).

…The Centre considers the premise of the Bill to be incompatible with the human rights outlined above… , which are rights that the Victorian government commendably seeks to protect and promote in the Charter. As such, the Centre recommends that the Bill be withdrawn in its entirety.

SARC’s own report on the Bill was tabled in Parliament today. It focuses on a section that requires the fact that a named prisoner has been successful in a claim to be advertised in Victorian and national newspapers:

The Committee observes that the information contained in the notice – that the prisoner has been a victim of a civil wrong committed by the state and is the recipient of an award of more than $10,000 – is potentially sensitive information, particularly given the vulnerabilities of many prisoners. The Committee also observes that this requirement is a mandatory one regardless of the circumstances and, in particular, overrides any confidentiality clause contained in an agreement between the state and the prisoner (see new section 104ZB.) The Committee therefore considers that new section 104Y may engage prisoners’ Charter right against arbitrary interferences in their privacy.

The Committee was also concerned that the requirement may override contrary court orders and laws.

SARC’s report also raises Charter concerns about the exemption of some offenders from the new County Court Koori division and the reverse onus defence of due diligence in an offence relating to factory openings on ANZAC Day.

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