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Unfranked 35 – Prisoner Compensation and the Lawyers and Conveyancers Bills

  • April 4th, 2005

What have these two Bills in common? Both are the brainchildren of Justice Minister Phil Goff. Both have been delayed by Ministerial dithering, the first by a few months, and the latter for nearly six years. Both will embarrass their promoters if they pass but I think neither will pass in its current form. I hope to be blamed for blocking both.

Lawyers and Conveyancers Bill

On Thursday 31 March Dr Michael Cullen shelved the Lawyers and Conveyancers Bill. He blamed me, for being armed with amendments to force a longer Parliamentary debate than he will tolerate before the election. If that Bill never comes off the shelf after the election I’ll proudly claim the credit. It is rare indeed for a Deputy Prime Minister to acknowledge that a minority opposition party MP has derailed 330 pages of government law fiddling.

The public will be indifferent. Some lawyers close to the Law Society politician/bureaucrats in Wellington will grieve. Few others will pay much attention.

But the shelving has political significance. It reveals the weakness of a seemingly strong Minister who tries to change law without a framework of principle.

In opposition the Hon Phil Goff staked his populist reputation on two vows. The first was to toughen up on bail, which he managed in 2001 with only a little watering down by his officials. The second was to end the lawyers’ alleged monopoly on conveyancing.

Who better to deliver on such a promise than a Minister of Justice with an army of policy advisers and law drafters, and the advantage of starting with his own Member’s Bill already before a Select Committee?

Seven years and two full terms as Minister of Justice have shown the second vow to be empty. Even if passed, the now monstrous Bill would have mocked his original intentions. The Law Society lobbyists got the better of him, though ultimately they scored an own goal with an embarrassingly muddled bill (Unfranked 30 last August summarised my criticisms. See

So the new Attorney General’s decisive shelving has rescued Mr Goff. A freshly empowered law society could have flexed new anti-competitive muscles against the eight non-lawyer conveyancers now in practice, against the accounting profession’s competition with law firms, and against innovative lawyers working outside the traditional private partnership.

Prisoner Payouts Bill

This companion example of dithering ineffectuality is still unfolding. The Select Committee report is due in early May. The Minister was forced to produce this Bill to hose down near universal outrage at cash awards for prison guard breaches of prisoner treatment rules. After months of huffing (and a draft ACT Bill) Mr Goff produced a Bill to freeze payments until the prisoners’ original victims have had a chance to pursue any civil damages claims.

There is a major drawback. Few victims have civil claim rights worth a fig (ACC blocks them). The bill does not expand victims’ rights to reddress. On the other hand prisoners’ rights may be limitless. They are shiny works in progress by judges making up so-called human rights law as they go. Young J’s judgment reveals a man just thinking of numbers and comparing them to numbers in earlier cases equally unrelated to any measurable loss or damage.

Submissions to the Justice and Electoral Select Committee, including an excellent one from the Law Society, showed conclusively that the Bill will not work even as a cosmetic. It sets up a lottery with derisory odds. Damages to prisoners will be unpredictable and unrelated to the losses caused by their crimes. The few successful victim claims will either undershoot or vastly overshoot the amounts available by way of prisoner payout.

Victims were virtually unanimous in telling us they were not interested in getting money, they just wanted to stop weak sentencing being made even more hurtful by criminals getting money for comparatively fanciful “injury” when their victims got nothing for grave injury. The bill magnifies the insult felt by victims.

The message to MPs from the submissions is crystal clear. The Bill must ensure that criminals are not entitled to cash windfalls unless our law is changed to ensure that victims are at least equally treated, and victims want justice, not cash.
Self governed or UN governed?

There is only one problem – the opinion of UN committees.

New Zealand expressly reserved its freedom not to compensate when signing up to one set of UN rules. But Mr Goff has a burning desire to be lauded by the international bureaucrats who claim that the rules demand cash payouts rights for aggrieved criminals. Not for Mr Goff Australia’s robust response when those hypocrites criticised Australia’s human rights.

I say the answer is simple – just assert NZ’s right as a sovereign nation to do what New Zealanders overwhelmingly want. But Mr Goff’s officials are on the rack to find cute ways to make the Bill look more effective without challenging the UN. And Mr Goff wants to keep getting invited to international photo opportunities (holding hands with Arafat was such a buzz), so he will not tell his foreign affairy mates to take a flying jump.

Contrast that with Dr Cullen’s blithe unconcern about the racism in his Foreshore and Seabed Act, fingered by a UN committee. Dr Cullen will consider that rage from the Law Society about its dud bill is a small price to pay, and Mr Goff should be glad he’s been forced to pay it.

Mr Goff should be equally grateful if the Select Committee submitters, and the MPs who now have a clear idea of what is needed to stop prisoner payouts, save him from more derision.

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