"Bad" may be too harsh a word for the Redress System for Abuse in Care Bill, which had its first reading on Tuesday — the Bill is still to be considered by the social services and community which the Southland National MP is chairman of, and may be improved to the point of being unimpeachable.
But it is certainly troubling and problematic law, as the government continues the potentially impossible task of finding a way to appropriately and adequately compensate the thousands of people who suffered harm while in the care of the state or agents of the state.
However, it is the third leg which is problematic: if passed, it would include a proviso which could make it possible for some survivors of abuse ineligible for redress.
Outrageous, you may be thinking. These are people who have suffered an appalling injustice and endured misery such as most of us could not imagine.
And the government would, largely agree with you. It wants to do its level best for victims of abuse while in state care: from Prime Minister Christopher Luxon down, there is no backsliding from the promise the government made almost a year ago that it was sorry and would try to make amends.
But — and there is a terrible but — people who suffered abuse tend to find themselves before the courts. The root of their addictive and/or criminal behaviour can often be traced back to the unforgivable harm they suffered during their childhood — and in cases such as covered by redress scheme the Crown has taken responsibility for that.
The redress scheme, as a whole, accepts the part the Crown may have played in this: having a criminal record does not disqualify a survivor from applying to the scheme.
But the Bill introduces an exception to that: a survivor of abuse in State care, convicted of serious violent or sexual crimes and sentenced to five years or more in prison, will not be automatically eligible for a financial payment of the redress scheme.
Instead, their application will be considered by an independent person — a retired judge, a King’s Counsel, or an experienced lawyer, who has an understanding of the criminal justice system and the findings of the royal commission into historical abuse in State and faith-based care.
What worries the government is the response of the victim, or the family of a victim, to the news that the person who committed a vile crime against them or a loved one has just received a large pay-out from the state.
Their expectation is that they would not be best pleased and they have reason for believing so: legislation which has long been on the books, such as the Proceeds Of Crime Act was born from such concerns.
What the government has attempted to do is strike a balance — something which seldom makes everyone happy.
There is a schedule of offences which might disqualify someone from the redress scheme, and as the five-year plus jail sentence requirement for these provisions to kick in implies, they are at the top end of wrongdoing.
Even then, disqualification is not intended to be automatic: the "independent person" could still accept that their application for redress is a fair and reasonable one.
The first part of the redress process, the Responding to Abuse in Care Legislation Amendment Bill, has passed unanimously so far, although with some grumbling discontent. The redress system Bill, however, drew stinging criticism from the other side of the House with successive speakers claiming — and they have an argument — that denying abuse survivors redress was to punish them for being victims.
Those are the competing claims that the social services and community committee will have to consider: we can only wish them the best of luck trying to sort that out.
Mooney was under no illusions of the magnitude of the task.
"I myself have worked in criminal courts and prisons around New Zealand, and I do know that the victims often become the victimisers," he said.
"I understand the challenge of the balance that we are seeking to strike here, and it is a challenging one. Like I said before, it is important that we keep the public with us, to ensure this scheme is not brought into disrepute."
"Disrepute" is crucial here. Whether or not approving a claim would bring the scheme into disrepute is the key matter for the arbiter to answer.
Unhelpfully, "disrepute" is not defined in the Bill’s interpretation section — doing so would surely be necessary for the independent person to do their job in an objective rather than subjective way.
"This is a carefully balanced piece of legislation, and I look forward to hearing submissions at the select committee," Mooney said.
He and the committee will need a fine sense of balance to put this Bill on straight and level footings.
