Victims Of Crime (Compensation) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 June 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:56): I rise to speak on the Victims of Crime (Compensation) Amendment Bill 2015 and, on this occasion, welcome this bill and indicate that the opposition will support the same. We do propose amendments, and I will refer to those shortly. Essentially, the bill is to amend the Victims of Crime Act 2001. The Victims of Crime compensation scheme compensates people who are injured by crime, and this, of course, can include mental as well as physical injury. There is no proposal to expand the area of compensation outside of that, but there is, currently, a proposal to expand the amount available in certain circumstances. There has been no increase in the compensation available under the scheme since 1990, with a maximum payout of $50,000.

Compensation is currently assessed on a scale of zero to 50 to reflect the extent of the loss, which is then multiplied by 1,000 to reach a final compensation figure. The Liberal and Labor parties, at the 2014 election, made commitments to double the maximum payout to $100,000. Each of the major parties promised a doubling of the grief payment from $10,000 to $20,000 and to allow children of victims of homicide to be eligible for that payment (it is currently only available to the spouse or domestic partner of a homicide victim). Additionally, there were promises by each party to double the funeral expenses from $7,000 to $14,000. If a victim had died as a consequence of an offence and a person is responsible for payment of the victim's funeral expenses they are able to claim for that expense.

The bill will do a number of things, including, firstly, to amend the scale of compensation from zero to 50 to zero to 60, with the compensation amounts assigned to each value increasing. This amendment aligns the scale with the Civil Liability Act 1936. Secondly, it removes the court's discretion to order costs alternate to those provided in the regulations, although this does not apply to the Crown if costs are awarded against the complainant.

Thirdly, it increases the payments through the regulations available to solicitors representing victims of crime, from $1,000 to $1,400. Fourthly, it increases payments through the regulations available to counsel representing a victim of crime, from $750 to $1,000 for preparatory work, and the first five hours of the hearing on an application and $200 an hour thereafter.

Fifthly, it creates an offence requiring that a claimant who receives compensation or damages from another source to notify the Attorney-General within 30 days, and there is a penalty of a $1,250 fine if that is breached. Sixthly, it allows the Crown Solicitor to disclose to a victim information relating to the whereabouts of an offender for the purpose of the service of documents.

Members will be aware, in reading multiple annual reports in recent months, the Auditor-General's Report and the like, that the Victims of Crime Fund now has well over $200 million in it. From our side of the house, we consider it scandalous that there has not been an upgrade of the maximum entitlement under this fund. It has always been understood that this is a payment that is not designed to fully compensate to the degree of the value of the loss or injury of the party.

It is a scheme which provides for some support and acknowledgement in the circumstances where people are victims of crime. Frequently, the offender or offenders are of impecunious means and/or in gaol; therefore, the capacity to be able to have some civil recourse is very often limited. This scheme has operated for many years—at least, I am old enough to remember (probably the Attorney does, too) when the criminal injuries compensation, which was its predecessor, had a maximum of $2,000.

In its day, I can recall seeking that maximum amount for a client in the Supreme Court as a result of the client being multiply raped after an armed robbery by some scoundrels. She suffered brutally from this and had considerable injuries, and she really had to go through quite an arduous process, including being available to be cross-examined and the calling of evidence, to be able to just line up for $2,000.

I suppose the objective of the scheme has always been that it would be relatively simplified, that there would be some attempt to resolve them early and that we would not be having extensive hearings on the application of this. That is probably the basis upon which the payments available to solicitors for doing these cases has been relatively low. There has been no incentive for them to go past putting in the application and trying to negotiate with the Crown the amount to be paid because the incentive for them to continue on and be paid anything but a pittance is diminished as a result of that payment.

In other words, if they are going to go on, go past what is offered from the Crown and actually take the matter before a judge to be heard on application, they are really going to be doing it for free because the costs schedule with it is so paltry that it is a disincentive to be able to fight on for a fair settlement in these cases. There has been need for reform for some time. We have plenty of money in the fund available to make good. I understand the effect of this legislation is that it will have a retrospective application so that it will apply to all events that have occurred after 1 July this year, so that for the last four months, when no doubt there have been some applications piling up in solicitors' offices, they can then progress to have the benefit of that. Sadly, in my view, if this had been dealt with promptly after the election we could have had this on 1 July 2014 and made some provision for those who have been waiting for some time to have some level of reasonable compensation.

The government's decision to go from a one to 60 model is consistent with what they have done in other jurisdictions in relation to motor vehicle claims in relation to compensation. I am not going to go on at length about that. It would spoil the one occasion that I am being complimentary of the Attorney in bringing this bill to the house. We do welcome the legislation, but to have introduced a one to 60 model in any of these I think has been not so much unfair but dismissive of the importance of recognising compensation for what it is and letting people have a false hope of some reasonable increase in the categories other than catastrophic.

This is the third time we have come to this parliament to find that the government have promised a lot and then, when it comes to the detail, it is great for the person who has been catastrophically injured at a very serious level, the very few who would ever have the chance of getting the $100,000 maximum, but for so many others they will have a relatively small increase. For many others, our understanding is that if there is an expectation of what you would have got under the act as it currently stands of, say, a $7,000 payment, the best you are going to get out of this new model, because the scheme has changed (we have gone to a one to 60 scheme), will be $9,000. I think there was an expectation that there would be some relative increase similar to the maximum, but clearly that is not the case.

Nevertheless, there are two aspects of this bill which we consider need attention; the first is to make provision for the costs not applying to the Crown. We say that the Crown should line up, effectively, to have the same right to costs as the claimant, otherwise we have an unfair situation again of the Crown being able to ask what it considers to be its costs without restriction; if the reverse occurs, and an application merits the claimant seeking an order for costs, they are going to be restricted to the total of $1,400. That is not acceptable to us. It will be $1,400 under the new regulation. I will be moving an amendment accordingly to delete subsection (2a) in clause 8.

The second area of amendment is to allow for the imposition of the levy to children—that is, children who are convicted of offences—to be relaxed in this way, namely, allowing the judge, who has the obligation currently without any discretion to impose a levy, to in fact have the discretion not to impose it if the person being convicted or sentenced is under the age of 18 years.

The exoneration of the defendant to pay that liability ought to be obvious to the government. It is not the first time we have raised it. It is not the first time others have raised it. It is my understanding that magistrates have raised this with the government, notwithstanding their blistering attempt to look like they are tough on everything and only support victims and do everything they can to smash the offenders and say, 'There will be no mercy to anyone who has convictions.'

They will have a levy applied to all the offences with no discretion or relief and no matter what their age or financial position. That has created this absurd situation where children sometimes receive an order that they pay a multiple group of the levy for multiple offences and, furthermore, that even if they are in a circumstance where they are not working and have no money and no capacity to pay, they are still ordered to pay it. There is absolutely no discretion, and magistrate after magistrate has raised it with me. They claim that it has been raised with the government, but it appears that the government, in their insistence on trying to look tough on law and order, has this absurd situation prevail and continue.

There has to be some relief because even this year, as we have clearly identified and as has been tabled in the annual report from the fines unit, the outstanding debt for levies to be paid by offenders has gone from something like $38 million to $52 million. That is a $14 million increase just last year and that could be that more children are being prosecuted and are not paying or it could be that more adults are being prosecuted and are not paying. I do not know. We still do not know the answer as to why there has been such an increase, but it is logical, isn't it?

Of the hundreds of thousands of people who are prosecuted and are paying this levy, there is a good number of them who are children and there is a good number of them who are people who cannot pay so, at the very least, we say that in a known circumstance where children do not have access to that, unless they have a parent who is prepared to line up and actually pay for it for them, it is never going to be paid, so it is ridiculous to have it there and not have a situation where the judicial officer has the capacity to relieve that liability. That is the import of our second amendment.

Commissioner Nyland recently published a press release suggesting that that should be attended to. It suggested that it be actually removed. I did seek clarification from the commissioner on this in respect of her interim recommendation and she wrote as follows:

I advise that the recommendation is aimed primarily at the mandatory nature of the current obligation. I appreciate that there may be some circumstances in which the imposition of a victims of crime levy might be appropriate to the circumstances of a young offender, and would not conflict with the objects of the Young Offenders Act.

In those circumstances, while I remain of the general view that there is little utility generally in applying the levy to any youth, I would support an amendment which removes the mandatory nature of the obligation, and provides judicial officers with a discretion regarding its imposition.

I hope that the Attorney has got the message.

Wiser people than me support that obviously: commissioner Nyland, magistrates, others who had to deal with this issue, resulting in this senseless accumulation of debt which is continuing to spiral. If we were to apply some of the money that is used to accumulate and record all this debt and attempt to follow-up and enforce something that is clearly unenforceable, we would be well served to apply that to the rehabilitation and support of our young people, rather than employing people in a bigger bureaucracy to deal with it. With those few words, I will need to go into committee, but I hope that I will be brief in presenting amendments, and that they will receive some favourable support of the Attorney—a Christmas present would be nice!

The ACTING SPEAKER (Hon. T.R. Kenyon): What would you like, member for Bragg, anything special?

Ms CHAPMAN: It might be wishful thinking. He is not Santa Claus, I know that, but I am ever hopeful.

The ACTING SPEAKER (Hon. T.R. Kenyon): If you would like to pass on your list to the Government Whip I am sure we can make sure it gets to the Attorney.

Ms COOK (Fisher) (17:15): I rise today to make a brief contribution in support of the government's Victims of Crime (Compensation) Amendment Bill. The bill delivers on the election promise made by the government to double the amount of money that victims can access to an amount of $100,000, as well as granting payments to the children of homicide victims. The compensation payment for grief will also double to $20,000 and payments for funeral expenses will double to $14,000. The bill also provides for the indexation of payments annually. This will ensure that compensation and other payments to victims of crime remain relevant over time.

As my colleagues in this chamber and many members of the public know, I lost my own son, Sam, in violent circumstances some 7½ years ago. He was indeed a victim of crime. My husband and I, as well as Sam's sister have suffered immeasurable grief since losing him. We are all victims of crime. There is absolutely nothing financial that can ever compensate for the loss of a loved one and, in our case, a son or brother. No amount of money can ease pain and give reasons to put one foot in front of the other or, in fact, just help you to get through the day.

With the work my family does to stop violent acts and, in fact, the work that I do in my community, there is some comfort. As with others who are victims, we have found a new 'normal' in which to function. They find a way to scrape through life and these compensation payments can make that journey to the new normal just that little bit easier. The mark of a compassionate society must be the way that we look after the most vulnerable, and victims are at increased vulnerability in our community.

I am especially happy to see that children will now be able to access some funds after experiencing one of the most horrific things that can happen to a child, having a parent taken from them especially. In such a short time since being elected, I have already had several inquiries through my office by grandparents on behalf of their grandchildren, the most vulnerable victims of crime. It will be with enormous pride that I cast my vote in support of providing access to funds for children.

Having had the extremely emotional, stressful and draining task of planning the funerals for three of my immediate family over the past seven years, I am really happy to see the increased funds being set aside to assist with funeral costs. When a loved one is lost suddenly, it is in all likelihood that there will not be a prepaid funeral, as especially with the case of younger victims of crime, death is something we avoid discussing.

The sum of $14,000 is more than enough to cover the cost of most funerals and this payment will definitely remove some of the anxiety associated with these decisions. I am also very eager to support the government now indexing payments. This will ensure that the victims receive a relevant payment to the crime committed against them, and to ensure that the Victims Compensation Scheme remains an important and integral part of the victim support process. Thank you for allowing me to speak to this, and I commend the bill to members.

Mr DULUK (Davenport) (17:18): Thank you, sir, and you look very good in that chair.

The ACTING SPEAKER (Hon. T.R. Kenyon): Thank you, sir. I have designs.

Mr DULUK: Grand designs. I also rise today to make a contribution to the Victims of Crime (Compensation) Amendment Bill 2015. Victims of crime often suffer a range of physical and psychological injuries which can have a devastating impact on both the victims and their families. Whilst financial compensation cannot redress the harm that victims suffer, payments are designed to help people address the suffering that impacts their lives afterwards.

Unfortunately, compensation payments available under the Victims of Crime Fund have not increased in South Australia since 1990, and I was about seven years old then. I support this bill and welcome the opportunity to endorse amendments which will increase the maximum amount of compensation payable to the victims of crime, and, of course, endorse the amendments to be moved by the member for Bragg.

Compensation payments in conjunction with the conviction and sentencing of the offender often help victims find some closure, and they also provide assistance on the long and slow process of psychological and physical recovery from the effects of crime. These changes are long overdue, and I welcome them to the house. Let us not forget that these changes were commitments at the last election by both parties, and it has taken some 18 months before we have seen some legislation to consider these changes. Without being too cynical, one often feels that the government has failed to prioritise victims of crime; and, of course, it is not for the first time, unfortunately.

The balance of the Victims of Crime Fund as at 30 June 2015 was $203 million. During budget estimates the Attorney-General confirmed that the total moneys expected to be received into the fund in this financial year is a further $68.7 million, and a total estimated expenditure of $28.2 million is to come out of the fund.

The Attorney also confirmed that, over the forward estimates, the expected income for the fund is more or less stable between $68 million to $69 million, and with outgoings stable between $20 million to $30 million per annum, that is an expected inflow of approximately $40 million year on year through to 2018-19. This essentially is a result of the Victims of Crime Fund increasing to well over $300 million within that four years.

So, here we are, with over $200 million in the Treasury coffers with a forecast of this to grow by more than $100 million, and that is more than a 50 per cent increase in the four years, for maths and science students. How is this government planning to utilise these funds? That is a great question, and today in question time the Minister for Corrections was not sure how much could be allocated from the fund from people who had been incarcerated for domestic violence offences.

Certainly some funds could be used out of that. We could support services, of course, for children who are victims of crime. We could consider allocating additional resources for our overburdened justice system. Of course, we could focus on better perpetrator programs and more early intervention in the youth justice systems, but, unfortunately, I do not know whether this is going to be coming.

Also during the budget estimates the Attorney-General was asked about the potential use of the fund and he was very circumspect in his options. He certainly kept his cards close to his chest. He does want to use the money, it is true. The Attorney in estimates said that he was thinking about using the money, but he put nothing on the table, and for me that is a bit of a problem. It is a bit of a problem to me because this government is using victims of crime to prop up this budget bottom line, and it has been doing so for years. Throughout the department, throughout the agency, time and again, we see price gouging, we see increases in the ESL and we see increases in other fees and charges to essentially prop up this $11 billion debt that this government has.

Let us remember that it was only four years ago that the fund held less than $100 million. It now holds about $200 million, and in four years' time it is going to hold about $300 million. There is no doubt the government could have increased compensation to victims of crime several years ago. It did not. It could have explored opportunities to use the fund for the benefits of victims. It has not.

The Attorney-General has repeatedly been asked by the opposition to consider ways to ensure that the Victims of Crime Fund is utilised, and too often I think those questions have been rebuffed, but it is good to see today that we are finally talking about this matter. I go back to why. Why are we here? For me, I am cynical. I have been here for 10 months and to me it is about the bottom line of the state coffers.

The victims of crime levy is imposed by legislation on any court fine or SA police expiation notice and all expiation notices once they have been enforced. The levy is paid to the Crown in order for people who are victims of crime to be able to draw on these funds if eligible.

The amount that can be spent in any one year from the Victims of Crime Fund is set in the context of the total state budget and any change to the net position of the fund will be reflected in the bottom line of the state budget. Any change that would affect the bottom line, of course, needs permission from cabinet and the Treasurer, permission that the Attorney-General has not been prepared to request so far. He will not because he knows what we know, that the state budget is in bad shape.

We have a massive $279 million budget deficit for 2014-15, the public sector debt is well over $10 billion and the government will pay $971 million total in interest on all debt in this financial year. Of course, this interest will increase to $1.4 billion in 2016-17 when the Royal Adelaide Hospital debt comes onto the balance sheet. This equates to an interest-only payment of just over $3.8 million per day—$3.8 million per day, every day, in interest only. It is no wonder that the ESL has increased as well, water prices have increased and South Australians are paying more but receiving less. With numbers like this, it certainly explains why the government is holding onto every dollar that it can.

Unfortunately, it is the people of South Australia who are once again forced to pay for this government's poor economic management. Victims of crime have been paying through inadequate compensation, a slow justice system and under-resourced support services, and ordinary South Australians pay by being slugged a fixed fee victims of crime levy regardless of the offence, a fee that the Rann Labor government doubled from $30 to $60 only a few years ago. Whilst I acknowledge that it is a levy that you only pay if you do commit an offence, to me, personally, $60 is a hefty charge to add on top of an $80 parking ticket or a $160 speeding fine for going a few kilometres over the speed limit.

When it comes to parking and these sorts of infringements, it is indeed a levy that many South Australians struggle to pay. Under recent FOI documents, the value of unpaid victims of crime levies has skyrocketed to almost $14 million in one year alone. In June 2015 there were more than $52 million in unpaid levies, up from $38 million as at 30 June 2014. The number of clients who have not paid the victims of crime levy has increased by 53 per cent, meaning there are now almost 122,000 clients that have an unpaid victims of crime levy debt.

A fair proportion of those clients are, of course, people under the age of 18, juvenile offenders. A case has been brought to my attention by a constituent where a high school student did not have his student ID card on him at the time and was charged for using an incorrect concession card on the train. He had to pay the fine, including the victims of crime levy, notwithstanding that he produced his ID down the track to SA Police, and that is a matter we are dealing with at the moment.

The Victims of Crime Fund being awash with money that this government seems unwilling to unlock is a real disappointment. For me, the government could consider reviewing the size of the levy because there is money in the fund. It could consider providing relief to child offenders by allowing judicial discretion on whether the levy should be applicable, or it could stay true to form and continue to reach into the pockets of South Australians and rip their hard-earned money away, as we do so often with the ESL, SA Water prices and across the board.

The Commissioner for Victims' Rights continues to urge the government to improve not only compensation payments but also the types of services that are provided to the victims of crime. It is a view that I share and we certainly share on this side of the house. Victims of crime need support in what is a very challenging time in their lives. The legislative changes put forward in this bill provide the necessary and valuable updates to the victims of crime compensation scheme.

Whilst I welcome the bill, and certainly support it, I would like to see it go a little bit further. We have this kitty and the money is not being paid out, and there are so many avenues of good work to which these funds could be put—combating domestic violence, improving support services for children of victims of crime and, of course, helping our overburdened justice system, to name a few.

The reality is that the kitty is growing at a tremendous rate and the government, if it does not address these issues with the funds available, will be failing victims of crime. It continues to fail those members of the public who pay the victims of crime levy and expect the money to be used to the benefit of all South Australians.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:29): I will be very brief. First of all, I understood where the member for Davenport was going with his contribution, but I thought there was a slight bit of overreach when he talked about reaching into the hands of the pockets of South Australians and taking away their hard-earned money. The one word he did not add in, which would have made it a more complete sentence, was 'reaching into the pockets of South Australian criminals' taking money away. The omission of the word 'criminal' did change the spin a little, but otherwise I commend him for his concern for the criminal classes.

The other thing I wanted to say was in relation to the member for Bragg, who made the suggestion that I might in some way emulate Santa Claus and she might receive a gift. There is good news for the member for Bragg; that is, it is just as well for her that I am not Santa Claus, which means there will not be any need for her to sit on my knee in order to receive a gift.

Can I say that she had me at 'hello'. In fact, even before she spoke she had me because I looked at her amendments and I thought, 'My goodness, they are terrific, and it is Christmas. They are attractive. It is Christmas and I would love to give the member for Bragg a gift.' But before I could get to my feet and do that she had spoken for nearly three-quarters of an hour. I just want her to know that the gift could have been better and I could have spared her all that activity. So, those are my comments.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 7 passed.

Clause 8.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 4, line 36 [clause 8(3), inserted subsection (2a)]—Delete subsection (2a)

I move the amendment for the reasons outlined in my previous contribution.

Amendment carried; clause as amended passed.

Clauses 9 to 11 passed.

New clause 11A.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–2]—

Page 5, after line 15—After clause 11 insert:

11A—Amendment of section 32—Imposition of levy

(1) Section 32(2)—delete 'subsection (3)' and substitute 'this section'

(2) Section 32—after subsection (3) insert:

(3a) A court may, at the time of convicting or sentencing a person under the age of 18 years for an offence, exonerate the defendant from liability to pay the levy in relation to that offence.

(3) Section 32(7)(b)—before 'the court may not' insert:

subject to subsection (3a),

I move the amendment for the reasons outlined in my previous contribution, and I welcome the Attorney's indication of consent.

New clause inserted.

Remaining clauses (12 to 14) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.

The Hon. J.R. RAU: I will move that the house do now adjourn.

Mr PISONI: Point of order, sir. The next item on the green paper says:

The Leader of Government Business will move—That standing and sessional orders be and remain so far suspended as to enable Private Members Business: bills, Order of the Day No.4 set down for today to take precedence over government business, except for the receipt and any consequential consideration of messages from the Legislative Council.

The ACTING SPEAKER (Hon. T.R. Kenyon): We have messages from the Legislative Council, and I will have the Leader of Government Business come down in the meantime.