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Can The Terror-Injured Citizens Hold the New Zealand Government To Account?

Written By: - Date published: 9:04 am, September 5th, 2021 - 57 comments
Categories: human rights, jacinda ardern, labour, police, terrorism - Tags:

While Prime Minister Ardern is an empathic Prime Minister, good for the country in a crisis, and is genuinely caring, there’s also a time for citizens to say that the state must pay to right wrongs.

On the same day as the terror attack in New Lynn in which multiple New Zealanders were stabbed by a person who was under very, very close watch by the Police, central Auckland shop owners were granted $12 million to be compensated for commercial damage caused by the state’s project City Rail Link causing commercial impact upon the business of shop owners.

One of the most vociferous is Roma Blooms the florist. They have certainly been through a lot since early 2016.

Yes, all comparisons to different kinds of compensation are egregious.

But getting lots of cash for not selling enough flowers is surely a lower harm than getting stabbed by a known terrorist sympathiser. It didn’t require a change to the Public Works Act injurious affection clause. It just required consistent pressure.

Victims of crimes can sue the government under the 1992 ACC Act for mental trauma which is an outcome of physical injury. Also very serious mental trauma is included, because the phrase “mental injury” is defined in Section 3 of that act as “a clinically significant behavioural, psychological or cognitive dysfunction.” But not for trauma from acts of terror.

What I would like to see tested is firstly: mental health claims from an attack in which the plaintiff owed a duty of care to the person who suffered shock – as a result of terrorism. That allegation would depend on a number of features including proximity and relationship. In March this year the Prime Minister said that she couldn’t expand access to cover all those traumatised at the March 15 terror attacks without expanding ACC access more widely.

Empathic though she may be, she prefers to expand state terror powers rather than citizen recovery liabilities.

Secondly a reasonable case could be made by NZPolice that they did all they could, took all the steps they could, and could not reasonably have prevented the attack. Nor did the state cause the attack to occur. But I would like to see that attitude tested in a Court, against the NZPolice.

It’s time the Police were tested in court over their civil liability specifically about prevention of harm when high risk people are being very, very closely monitored. Something with a bit more stick than the Independent Police Conduct Authority. Something that gets the Minister of Police on the witness stand would be useful.

We should not have to be asking some of the same questions about the duty of the state that we did a year several years after the Christchurch attacks.

The state broadly already does quite a bit for victims. Many state services kick in around this sort of event, including Accident Compensation Commission, DHB mental health service, and immediate hospital services, then social welfare. As it should.

I don’t think anyone would say there was flagrant disregard for public safety: the Police were clearly on to him. Exemplary or punitive damages would be a bit out there.

It’s also nigh impossible to win against the Crown because there is no direct liability of the Crown. The Law Commission made some recommendations on that a few years back but strict liability was rejected, and any legislative changes weren’t a priority.

But this government knew there was an issue to be fixed in getting the right powers to prevent terror acts from occurring, because in April the Minister of Justice Chris Fa’afoi introduced the new Counter-Terrorism Legislation Bill.

He commented about the bill:

I don’t want to get into details around a specific case. But if the police were able to monitor preparation for a terrorist attack, then the measures that are contained within this bill would have allowed them to take action and potentially prosecute an individual.”

So the government knew it was on the hook to do more to intervene and prevent such harm.

Even when you’ve done your best, beefed up your resource, cooperated better across the system, when massive damage occurs and you already had them in your sights, you owe New Zealand an apology.

And even then, an apology wouldn’t cut it. The state should pay you. Lots.

Yet another apology isn’t enough.

If they can compensate for flowers they can compensate for people.

57 comments on “Can The Terror-Injured Citizens Hold the New Zealand Government To Account? ”

  1. Ross 1

    Sadly, the system failed the victims.

    on May 31, 2018, the Refugee Status Branch served [snip – MS] notice of its intention to cancel his refugee status – meaning he would be deported back to Sri Lanka – after a string of incidents in which he posted extreme videos and pictures online.

    More than three years later he was still here.

    Immigration NZ refused his initial application, but the Tamil Muslim was approved on appeal by the Immigration and Protection Tribunal after he argued fear of persecution on return to Sri Lanka. … It was not until February 2019 that Immigration NZ cancelled [snip – MS]‘s refugee status – when he was already in prison facing criminal charges.

    Two and a half years later he was still here.

    I note that he was on bail when he allegedly committed a number of crimes. Why was bail granted?

    The PM and others have suggested the Police did all they could. In 2016, a bunch of elderly people, mostly women, who had gone to a meeting to discuss euthanasia were stopped by police on the way home. To be sure, it will an illegal stop by police. But police justified it on the grounds that the investigation and the checkpoint took place "in the interests of preserving life". In the interests of preserving life, did police stop [deleted] when he was about to enter Countdown and check that he wasn't carrying a knife into a well-populated and confined place?

    [link deleted]

    https://7news.com.au/news/terrorism/new-zealand-terrorist-wrongly-given-refugee-status-as-family-speaks-out-c-3874953

    https://www.nzherald.co.nz/nz/false-checkpoint-targeting-euthanasia-supporters-part-of-investigation-police-confirm/WVYMAPOOBJB4U3DCPFPFGYN6EY/

    • Ghostwhowalksnz 1.1

      He used a knife that was for sale on the shelves in the store. When he had knives at his home he has been arrested previously.

  2. Gabby 2

    How far were the courts responsible for the situation? Were they just taking their sweet time in dealing with it? It seems odd that the guy could refuse mental health evaluation and that couldn't be pursued.

    • Ghostwhowalksnz 2.1

      A psychopath isnt a treatable mental illness in the sense cane he held in a secure unit 'for treatment' .

    • Ngungukai 2.2

      Surely the Judge should be held accountable however they are above the law ?

      • Sacha 2.2.1

        The whole point seems to be that they are not. Hence the govt needing to change the law so future judges could act differently.

        • Ghostwhowalksnz 2.2.1.1

          Thats quite absurd. Who would be a judge if the baying mob wanted accountability like you say.

          There was a recent Family court case where it seems the chief District Court judges were trying to infer in an ongoing case. The judges are independent of each other as well.

          • Gabby 2.2.1.1.1

            Damned if you do, damned if you don't. Who wouldn't want to be a judge if you could rule partially and with impunity?

        • Ross 2.2.1.2

          Hence the govt needing to change the law so future judges could act differently.

          How would judges act differently? The offender was on bail at the time of the attack. Bail is a privilege. Even with a law change, we're talking about a finite prison sentence and parole and or bail. One only has to look at the Adrian Bayley case in Australia to see that that isn't the answer.

          https://www.theage.com.au/national/victoria/adrian-bayley-how-the-justice-system-left-him-free-to-stalk-melbournes-streets-20150325-1m70ps.html

          • Sacha 2.2.1.2.1

            Please do some reading. The terrorist's refugee status was also a complicating factor. Do you seriously believe the guy was let free without considering other legal options?

            • Christopher Randal 2.2.1.2.1.1

              That raises the question did his immigration lawyer know what he was dealing with or was it just another lucrative case to him

              • Chris

                A lawyer's duty is to their client.

                • Ghostwhowalksnz

                  Not soley to client ,and other things

                  The rules are based on the fundamental obligations of lawyers set out in section 4 of the Act, namely—

                  • to uphold the rule of law and to facilitate the administration of justice in New Zealand:
                  • to be independent in providing regulated services to clients:
                  • to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
                  • to protect, subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients.

                  Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

                  https://www.legislation.govt.nz/regulation/public/2008/0214/latest/whole.html

                  • Chris

                    So are you saying that a lawyer's duty to the Court, as you've referred to, means his lawyer should've acted differently, or argued for a different outcome? A lawyer's duty to the Court doesn't extend that far. The only way that it possibly could in a case like this, would be if his lawyer did some thing like withhold psychological reports, or argue for an outcome the legislation didn't allow the Court to reach. Even the latter might come down to incompetence rather than falling into the category of breaching their duty to the Court. So far as the lawyer stays within the bounds of adhering to the Court's processes then it's the lawyer's duty to the client that prevails, which is set out in the section following the one you've quoted: s 5.

          • McFlock 2.2.1.2.2

            No, it's a right. It's a right than can be restricted under certain circumstances, but the principle is to prefer freedom rather than imprisonment before trial.

            So even if he had some offences that precluded bail as a right, the judge still had set criteria upon which to decide whether to remand him in custody.

  3. Tony 3

    I agree wholeheartedly which is what this situation requires, whole heart .. A troubling aspect for me is that the Commissioner initially said the police on hand responded in 60 seconds, that was expanded yesterday to .. between 60 and 90 seconds, now go watch the second hand on a clock travel 60 to 90 seconds, that's quite a passage of time after screams were heard at 3 seconds in .. the police were apparently in the aisle next to the terrorist. By way of comparison, my hens let me and the neighborhood know when they have laid an egg, I can leave my kitchen, go down 3 steps WALK to the henhouse, collect the freshly laid egg and walk back into the kitchen having taken 72 steps and check the clock and it took 47 seconds, I am 67 ..

  4. Tricledrown 4

    ACC for flowers get real NZers will start a give a little page.

    This is a crime if we compensate for 1 crime we have to compensate all victims which would need funding and would be a good idea.

    This has been put foward before and kicked down the road by successive govts.

    ACC should be upgraded back to lump sum payouts ,for families of victim's so they are not struggling financially with the loss of a loved one through no fault of their own.

    No doubt we will have another loan wolf attack We have small pockets of unhinged white supremacist's who would think it's time to even up the score.These people don't think ,they are followers like cult members they loose the ability to think for themselves .

    Police resources are spread thin ,Maybe we should look at preventative detention like we do for repeat sex offenders for repeat terror suspects all the civil liberties people will be up in arms.But an ounce of prevention ton of cure comes to mind.

    The platforms ie tech companies need to take down this material that's radicalizing these nut jobs who are already easily lead.

    These tech Giants should pay their share of taxes and the compensation as they are complicit and refuse to take any responsibility.

    They are the main reason both the ChCh and New Lynn terrorists were radicalised.

    Their multi billionaire leader's pump $100's of millions into political parties which advocate low or no taxes ,These political parties of low or no taxes say we all have to take responsibility for our actions.

    Time for Tech companies to take responsibility they should be in court alongside any perpetrator as an accessory to the crime,If any individual was involved that would be the case but these giant companies are to big to be prosecuted.One law for the rich one for the poor.

    • Ghostwhowalksnz 4.1

      Those injured will get ACC as the cause doesnt matter if its from a crime or accident.

      • Cricklewood 4.1.1

        Sure but is ACC enough does it really compensate for the trauma does 80% of your income for the next x years really cover the cost of living in Auckand does it cover enough if you're young and find you are never able to work again due to physical and mental trauma?

        As the post says it would be good to test all these things in court.

        • Tricledrown 4.1.1.1

          For those families who loved ones have died ACC just gives a very small amount of money.

          The families should get much more so they can financially recover as well.

          • bwaghorn 4.1.1.1.1

            What funding mechanism do you propose?

            • Tricledrown 4.1.1.1.1.1

              Tax the tech companies in this case if it was a local publisher spreading hatred they would not be allowed yet these platforms say it's not their problem but how are these people radicalised .

              It's time these platforms took responsibility world wide they are enabling.Yet not paying a cent in taxes claiming they can't stop it.

              Which is pure BS the they can use algorithms for any other purpose but not to prevent crime.

              • bwaghorn

                They sure could monitor whats on they seem to monitor everything thing I say.

                More than once I've had a conversation about something like a new fridge etc and the next time I look on fb fuck me if there isnt an ad for said item !!

              • Ghostwhowalksnz

                They arent NZ websites…. who knows where they are or were located.

                Anyone can set up a website. you can do it from your living room. The WWW is vast thing not just a dozen 'platforms'

  5. Byd0nz 5

    When you buy flea treatment from a supermarket you need to take a card from the shelf and present it at the checkout to get the product. Knives should also be purchased that way along with any other dangerous goods. Supermarkets must step up in light of this attack.

    • Ghostwhowalksnz 5.1

      Thats an anti shoplifting measure for flea treatments. Some high value honeys were the same.

      Both chains have removed knives from sale

      • Ross 5.1.1

        Both chains have removed knives from sale.

        A pointless, virtue signalling exercise. Other stores sell knives.

        And supermarkets sell alcohol…which comes in glass bottles.

        Given this guy's rather obsessive interest in knives, it might have been useful for a police officer to have been situated in that aisle rather than near the counter.

        • McFlock 5.1.1.1

          Glad you've solved the world's problems for us, captain hindsight.

          • Anne 5.1.1.1.1

            Imagine Ross' scenario. The guy is trotting down the aisle and behind him walk two tough looking males with a side bulge under their jackets… eyes trained on the guy in front of them. Nobody, including the guy, knows who or what they are. 🙄

            • McFlock 5.1.1.1.1.1

              I'm just worried about where Ross thinks that level of surveillance should stop. And would we end up with watchers watching the watchers watching the watchers who are watching a person who is someone else's watcher?

              I also suspect that wandering around on L4, the cops would have stood out like a sore thumb. Parked outside his home, on every trip to the supermarket… almost a chicken vs egg situation.

              But then if the chicken came first, Rosses of the world would be asking why there were no eggs around this quite obvious chicken. Tortured analogy aside, buggered if I can see a better alternative, even with hindsight.

              • Ross

                I also suspect that wandering around on L4, the cops would have stood out like a sore thumb.

                Yeah undercover cops don't work in L4. Criminals are relieved about that. 🙂

        • Sacha 5.1.1.2

          A pointless, virtue signalling exercise

          I'm sure their staff see it that way, champ.

    • bwaghorn 5.2

      Oh ffs your just being stupid.

    • Incognito 5.3

      Cigarettes can only be sold over the counter because they cause lung cancer and are very dangerous. \sarc

  6. Chris 6

    "Victims of crimes can sue the government under the 1992 ACC Act for mental trauma which is an outcome of physical injury. Also very serious mental trauma is included, because the phrase “mental injury” is defined in Section 3 of that act as “a clinically significant behavioural, psychological or cognitive dysfunction.” But not for trauma from acts of terror."

    I didn't know that. I thought we had a 2001 Act that, like previous Acts, removed the right to sue (except in cases involving claims for exemplary damages) but provided cover for personal injury, which includes mental injury caused by physical injury, mental injury in the workplace (like seeing your workmate injure a limb or worse etc) and mental injury caused by certain criminal acts involving sexual assault. I thought the 1992 Act only came into play via claims under the 2001 Act for injuries that occurred at a time when the 1992 Act was in force, and then only in very strict circumstances.

    I was annoyed and disappointed when Ardern didn't extend cover under the 2001 Act to the victims of the 15 March event. They could've easily passed legislation under urgency to cover that specific incident which would not have extended cover to other situations. There are literally billions in ACC's coffers right now (which is hideous enough in itself given ACC's highly litigious insurance-based approach to assessing claims that sees only obvious injuries covered) so money's not the problem. This would've given much needed relief to the victims and then time for the government to nut out a longer-term solution to what the scope of cover should be. Extending cover for mental injury caused by criminal acts involving sexual assault, for example, was introduced as a result of the unfairness of excluding cover in such situations, including the re-victimisation that occurrs when applying the test for mental injury caused by physical injury. Perhaps it's time to look at somehow extending cover in a way that would assist victims in situations we're talking about now? It’s not as if money’s a problem seeing how sickeningly flush ACC is at the moment.

    • Ghostwhowalksnz 6.1

      The 'Billions in ACC coffers' is what they need to pay for 'long tail' injuries which can last decades. Its actually not enough in the sense it has to earn interest to be able to cover those previously injured.

      Its better explained in that those injured this year need to be paid for from income this year plus interest earned over decades. they have actuaries which keep track.

      You want to raid the money set aside for future payments those injured ?

      The victims of 15 March did receive cover, I cant see how they would not. And of course there was the public fund raising which was something like $12 mill which didnt have ACC restrictions

      • Chris 6.1.1

        I'm talking about extending cover for mental injury, without the need for physical injury, to capture a specific situation, how ever that may be categorised, to include instances such as what happened on March 15. It's this group that did not receive cover, and the government's response was that it would open the floodgates. Well, the floodgates argument doesn't wash because, firstly, it simply means restricting the increase in scope to a specific situation or set of circumstances, in precisely the same way as extending cover for mental injury without the need for physical injury was extended to workplace accidents and criminal acts involving sexual assault. I used those two examples because currently they are the only two exceptions to the requirement that mental injury must be because of physical injury. Secondly, the incident of March 15 wouldn't involve numbers significant enough to put a dent in ACC's reserves. Sure, it's the interest on those reserves that funds payouts current and future, but that cannot be a reason for refusing to introduce legislative change when legislative change is necessary. Heck, that's why we have a Parliament. Whether we can afford it or not is just one factor amongst many to consider when laws are made or changed. And in this case I'm saying that March 15 highlighted a gap in the legislation that needs to be addressed, and that when consideration is given to extending cover to this group cost is insignificant given the reserves.

        Also, the $12 million fund was the result of public fundraising, which is of course great. But it’s basically charity to which there’s never a guarantee of receiving. That’s why social schemes such as welfare and ACC are rights-based.

        • Ghostwhowalksnz 6.1.1.1

          Your dense writing style doesnt make it clear the the mental injury without a physical injury is only covered 'at work' situations.

          And yes it should cover non work occasions like the mosque shooting

      • Michael 6.1.2

        Those "Billions in ACC's coffers" are, clearly, not spent on rehabilitating or compensating "long tail injuries", or they would not be in those coffers at all. Instead, ACC rakes in more from levy-payers every year than it pays out, to the tune of billions every year, or pays to run itself (including toady medical assessors who report to it what it wants to hear). The surplus is invested in world financial casinos, where ACC usually racks up an imppressive return. This is said to be a "reserve" for future claims, an accounting fiction that it not maintained in other arms of the welfare state, such as health or work and income. Why is ACC different? because its bosses like to think of themselves as insurance comapny executives, rather than welfare administrators, and politicians indulge their conceit. None of this is of the slightest benefit to people who suffer personal injury, whether mental or physical. In fact, the misplaced executive focus harms the wellbeing of the people ACC was formed to serve, although those responsible forgot about them decades ago.

        • Ghostwhowalksnz 6.1.2.1

          You just dont get it all. Your otherwise reasonable point is lost when you become dogmatic and repeat financial nonsense.

          The returns are used to pay for long tail injuries, just because you cant 'see it' doesnt mean it isnt happening.

          ‘ACC recorded a $4.8 billion deficit in 2019/20
          This year the Scheme recorded a deficit of $4,809 million1
          Around one-quarter of the deficit was due to levies and appropriations being below the expected cost of new year claims. ”

          https://www.acc.co.nz/assets/corporate-documents/financial-condition-report-2020-acc8233.pdf
          Some injured in road accidents, of which many thousands per year have terrible injuries which in some cases have round the clock care for decades. Every time an ambulance turns up at a work or road accident, who pays for it. Who pays for the helicopter airlifting some one to hospital. Who pays for the medical care where its 2 weeks at a physio or 2 weeks in ICU.

          ACC does thats who.

          Ive never worked for them or had any major claim apart from a smallish achilles heel . That would have been a cheap recovery but cost many thousands. A lot of that is lost income payments

          ‘In 2019/20 ACC invested $102.5 million in injury
          prevention (including a one-off investment of
          $25.4 million in the firearms buy-back scheme)”

    • Michael 6.2

      "Victims of crimes can sue the government under the 1992 Act for mental trauma which is an outcome of physical injury." Not true, at all (the 1992 Act was repealed, by Labaour, in 2002). People who suffer "mental injury" under various, strictly specified, circumstances can receive cover from government (ACC) for those injuries but they cannot sue anyone for compensatory damages. In practice, obtaining cover and entitlements, such as weekly compensation, is a medicolegal obstacle course, with the odds heavily stacked against victims (thanks Labour). So people who suffer mental injury receive neither cover nor damages. Hence ACC's billions.

      • Ad 6.2.1

        Thanks for the correction there Michael.

        • Ghostwhowalksnz 6.2.1.1

          I dont believe a word he says. Theres a fair bit of artful word 'conjuring' going on.

      • Chris 6.2.2

        "In practice, obtaining cover and entitlements, such as weekly compensation, is a medicolegal obstacle course, with the odds heavily stacked against victims (thanks Labour)."

        A major cause of that ‘obstacle course’ was Muldoon winning the election in 1975 and scrapping plans to introduce the remaining recommendations of the Woodhouse Report regarding disability. If that had happened as planned the onus on claimants to show personal injury caused by accident (and the corresponding problem whereby ACC goes out of its way to refuse to accept causation) wouldn't be so vital because of the presence of the accompanying scheme focusing on disability.

        The case of Trevethick v MoH was an attempt to at least get a declaration under the Human Rights Act saying the unfairness whereby people with similar impairment receive different levels of support (ACC scheme v non-existent non-implemented Woodhouse Report recommendations) is discriminatory under the s 19 of the Bill of Rights Act. The case didn't get through the gate because of government lackey High Court judge Dobson J saying the case wasn't about discrimination on the basis of disability, rather than on the basis of "cause of disability', which isn't one of the 13 grounds for discrimination listed in the HRA.

        The lobby right now in terms of ACC should focus firmly on implementing the remaining recommendations of the Woodhouse Report, taking account of historical developments, of course.

        http://www.nzlii.org/nz/cases/NZHC/2008/415.pdf

  7. McFlock 7

    Frankly, if the govt thinks acts of terrorism in NZ will cause so many victims that ACC will be bankrupted, the govt needs to rethink its terrorism prevention strategy.

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