Human Rights and Prisons - Rethinking Crime and Punishment

Significant New Zealand case law has included the series of decisions
culminating in Taunoa v Attorney General [2008] 1 NZLR 429 (SCNZ). The
Behaviour Management Regime, that had operated at Auckland Prison
between 1998 and 2004, was found (by the High Court, Court of Appeal and
Supreme Court) to have breached prisoners‟ rights to be treated with
humanity and respect for their inherent dignity (affirmed by s23(5) of the New
Zealand Bill of Rights Act 1990). In one case, the impact of the regime was
such that its application to a particular prisoner amounted to disproportionately
severe treatment in breach of s9 of the Bill of Rights Act. The Supreme Court
set a high threshold for triggering these rights and reduced the amount of
damages awarded to the affected prisoners. The original award of damages
made in 2004 was met with significant political objection, and prompted the
introduction of the Prisoners’ and Victims’ Claims Act 2005.
The Prisoners’ and Victims’ Claims Act 2005 deals with the awarding of
compensation to prisoners for breaches of their rights under the New Zealand
Bill of Rights Act 1990, the Human Rights Act 1993 and the Privacy Act 1993.
The Act restricts the awarding of compensation so that it is reserved for
exceptional cases and used only if, and only to the extent that, it is necessary
to provide effective redress. Restrictions on compensation include that the
plaintiff has first made reasonable use of available internal and external
complaints mechanisms and that other remedies are used if they could
provide effective redress.
If compensation is awarded, the Act requires it to be paid to the Secretary for
Justice, and subject to deduction of legal aid, reparation and victims‟ claims.
A „sunset clause‟ limiting the duration of the Act‟s provisions dealing with
prisoners‟ claims, was extended by amendments in 2007 and 2010, so that
these provisions now expire at the end of June 2012.
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