General policy statement
The Prisoners’ and Victims’ Claims Act 2005 (the Act)—
restricts and guides awards of compensation sought by specified human rights claims made by a person (in this statement called a prisoner) under the State’s control or supervision; and
provides a simplified process (in this statement called the victims’ claims process) for the making and determination of claims that a victim of a prisoner may make against compensation required to be paid in respect of specified human rights or tort claims made by the prisoner.
The restrictions on the awarding of compensation expire on, and the victims’ claims process applies only to compensation in respect of claims made before, 1 July 2012. This Bill makes the restrictions on awards of compensation and the victims’ claims process permanent.
The Bill also implements aspects of the Government’s 2008 general election policy on victims of crime by providing that, for any compensation awarded in respect of prisoners’ claims for compensation made on or after 1 July 2012,—
compensation remaining after the victims’ claims process is to be redirected to a Crown Bank Account, namely the victims’ services bank account established by the Sentencing (Offender Levy) Amendment Act 2009, and used to fund services and entitlements for victims of crime generally; and
the civil limitation period is to be suspended when the compensation is paid to the Secretary of Justice, and to recommence following the deadline for victims to file a claim through the victims’ claims process. This suspension is intended to ensure that delays in assessing the quantum of deductions to be made from the compensation do not prevent victims of the prisoner from being able to make civil claims through the victims’ claims process.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 relates to commencement. The Bill as enacted is to come into force on 1 July 2012.
Clause 3 identifies the principal Act amended: the Prisoners' and Victims' Claims Act 2005. A reference in this analysis to a provision is, unless the context otherwise requires, a reference to a provision of that Act.
Main amendments to principal Act
Amendments to redirect prisoner compensation and for other purposes
Clause 4(1) states the Part's main purpose, which is to amend the principal Act so that, for a specified claim made on or after 1 July 2012 by or on behalf of a plaintiff who is or was a person under control or supervision, the principal Act—
restricts effective redress for the plaintiff in relation to the act or omission (by or on behalf of the Crown, and affecting the plaintiff as a person under control or supervision) on which the claim is based by redirecting away from the plaintiff all money that a person becomes liable to pay as compensation and in satisfaction of a court's or tribunal's final judgment on, or as, or as part of, an out-of-court final settlement of, the claim (clauses 5(2),6, 16, 17, 19, and 20):
ensures that its restricting effective redress by redirecting compensation away from the plaintiff does not make any person, or result in any person being, liable to pay to, or for the benefit of, the plaintiff compensation in respect of the claim (clauses 5(1), 7(1), and 9):
requires a court or tribunal to determine whether and, if so, to what extent, to award compensation in respect of the claim as if the principal Act did not redirect away from the plaintiff all money of that kind (clauses 7(3) and 12):
redirects away from the plaintiff all money of that kind by ensuring that any money that is related to the claim and that is not paid out of the victims' claims trust bank account under the principal Act before, during, or at the end of, the victims’ claims process in subpart 2 of Part 2 is forwarded to the victims' services bank account (clauses 5(2),6, 16, 17, 19, and 20):
requires money related to the claim and forwarded to the victims' services bank account to be paid to the plaintiff if the claim is based on an act or omission affecting the plaintiff as a person under control or supervision that arose solely from an event or a series of events that results in no guilty plea or finding of guilt, or in a conviction that is set aside—
without an order for retrial; or
with a retrial being ordered that is not proceeded with, does not result in a conviction, or is ended by a stay of proceedings (new section 52A inserted by clause 21).
Expiry of prisoner compensation restrictions and guidance, and process and limitation periods for victims' claims
Clause 4(2) states the Part's other purpose. That other purpose is to amend the principal Act to—
prevent subpart 1 of Part 2 (which restricts and guides the awarding of compensation sought by specified claims) from expiring on, or at a stated time after, the close of 30 June 2012 (clause 13):
extend the victims' claims process in subpart 2 of Part 2 to money to be paid as compensation in respect of specified claims made on or after 1 July 2012 (clause 14):
extend subpart 3 of Part 2 so that, for actions based on claims made on or after 1 July 2012 by or on behalf of victims and against money received under section 17 that is compensation in respect of a specified claim of the offender made after 30 June 2012, it also suspends the running of limitation periods until the standard deadline for the filing of a victim's claim in the victims' claims process under the principal Act (clauses 22 to 24, amending sections 63 and 64, and inserting new sections 64A and 64B).
Saving and repeal amendments to principal Act
Amendments to effect saving and repeal
Clause 25 states the Part's purpose.
Saving for specified claims made before 1 July 2012, related compensation, and related victims' claims
Clause 26 adds a new subpart 4 of Part 2, which ensures that the principal Act as in force immediately before 1 July 2012 will generally continue to apply to specified claims made before 1 July 2012, related compensation, and related victims' claims. (See also the related new sections 3(4) and 12(1) that are substituted by clauses 5(4) and 8 respectively.)
Repeal of spent provisions amending other Acts
Clause 27 repeals Part 3 which, when the principal Act came into force on 4 June 2005, made related amendments to other Acts. The repeal of Part 3 (as section 17(1)(d) of the Interpretation Act 1999 provides) does not affect the amendments made by Part 3, but removes amending provisions now spent. Other enactments related to, and to be read with, the principal Act are to be identified by new section 3(2A) (to be inserted by clause 5(3)).