Victims of Crime (Offender Service and Joinder) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 April 2019.)

Mr PICTON (Kaurna) (16:17): I rise as the lead speaker on the Victims of Crime (Offender Service and Joinder) Amendment Bill 2019. I note that this is a relatively short bill and that it amends the Victims of Crime Act 2001 to remove the requirements for a claimant to the Victims of Crime Fund to serve a copy of their application on the offender. As I said, it is a small bill, but for the relatively small proportion of victims who might be impacted by this it would obviously have a significant impact.

I am advised that around 90 per cent of claimants to the Victims of Crime Fund have legal representation; hence, this change would not apply to them. There is no current requirement for those people to personally serve, but in practice it is the legal representatives who serve a copy of the application on the offender in those 90 per cent of cases. However, I understand that there is a concern that, for the approximately 10 per cent of claimants who do not have legal representation, they may be forced to serve the papers on the offenders themselves.

If this were to happen, it is likely that this would be distressing for the victims. There would be particular concerns for a range of different classes of victims, whether they be victims of domestic violence, sexual violence, or where the victim is a minor. Applications can also contain personal details, including medical reports, which may not be appropriate to provide to offenders.

In her second reading explanation, the Attorney-General represented that South Australia is the only jurisdiction where a claimant to the Victims of Crime Fund is required to serve a copy of their application on the offender. If that is the case, then it makes sense to bring South Australia into line with other states and to make sure that this practice would not have to happen here in this state.

That is something the opposition supports. We support the bill through the house. It is a very small bill with a couple of clauses which seem appropriate to us and which I am sure can be dealt with readily. I am sure that the member for Heysen will have a full 20 minutes to discuss it but I certainly will not use my unlimited time to debate it.

I would make one note. When discussing victims of crime, I think South Australia owes a great deal of debt to the former victims of crime commissioner, Mr Michael O'Connell, who served with distinction in that role. He was recognised very highly, not only by victims in this state but around the country and internationally for his role and leadership in this area. Even though he is no longer in the position, he is continuing to advocate for victims. He is a person that this side of the house will continue to listen to for his guidance.

We think it is very disappointing that the government, particularly the Deputy Premier, decided not to continue with Mr O'Connell in the position. They basically forced him out, as they have done with the DPP, as well who was also doing an excellent job. I think the way he was treated was very disappointing, and I think that South Australians have a pretty dim view of the way he was treated. We absolutely respect the role that he has played and will continue to listen to his advice in making sure that victims are listened to in our judicial system.

I think there has been a lot of progress over the past two decades on this front, but there is a lot more that can still be done to make sure that we are listening to victims and that victims have rights in the legal system and that those rights are expanded upon and protected. With those words, the opposition supports this bill.

Mr COWDREY (Colton) (16:21): I rise today to make a brief contribution to what is a brief bill, the Victims of Crime (Offender Service and Joinder) Amendment Bill 2019. I note that on coming to this place I communicated that I was very keen to support legislative reform that is practical and puts forward common-sense change. I certainly believe that this bill is of that nature.

As I said, it is a very short bill with two parts and five clauses. Operationally, clause 4 of the bill removes section 18(4)(c) of the Victims of Crime Act 2001, in practice removing the requirement to serve offenders of those applicants who have made an application to the Victims of Crime Fund. Clause 5 changes clause 19 of the Victims of Crime Act, providing flexibility for actions that have already been commenced through the court process.

Historically, the reason for these current provisions being in place was to allow offenders the opportunity to make submissions to the Crown Solicitor's Office during the victims of crime application process. This is not necessarily a desirable process from a policy perspective for a range of different reasons. The Crown Solicitor's Office has advised that submissions are very rarely received by offenders and that it is quite rare that the award for compensation is reduced by an offender's submission.

Why are we doing this? I think it is important to draw out a couple of key points. The member for Kaurna has already placed the first on the record, and that is that this brings us in line with other jurisdictions around Australia. South Australia is the only state and the only jurisdiction where offenders are served with applications made to the Victims of Crime Fund. Certainly, there is a risk of retraumatisation for those who do not have legal counsel and who are at times asked to provide the application by themselves. This is especially important in applications that involve domestic violence matters. Consequently, many victims are scared to comply with the requirements of the Victims of Crime Fund and instead make their applications for ex gratia payment.

It is also important to understand the quantum of this issue. The Crown Solicitor's Office has provided estimates-based figures that on average 1,350 claims are made to the Victims of Crime Fund each year. While they do not necessarily categorise the applications down to those that are relating to domestic abuse or assault or breach of intervention orders, they have, using the work group, provided us a base assumption that 25 per cent of those applications (in the range of 330 claims per year) would fit that category.

Importantly, I think we must also recognise that it is not just domestic violence victims who may be at risk from the service requirements. It may also be problematic for patients of James Nash House, particularly for the staff involved in that process. Claimants who have been assaulted by a neighbour or somebody known to them would certainly be potentially vulnerable when a claim is served, as well as home invasion victims who would rather remain anonymous and when material may be shared in correctional facilities.

This is certainly a bill that I think makes a lot of common sense. It is certainly a bill that I support in regard to a shift towards assisting victims of particular instances. I also note that the Crown Solicitor's Office, the Bar Association and the Victim Support Service are all supportive of these amendments to the bill. I commend the Attorney for bringing the bill to the house.

Mr TEAGUE (Heysen) (16:26): I rise also to make some brief remarks in support of the Victims of Crime (Offender Service and Joinder) Amendment Bill 2019. As has been observed, this is a relatively short piece of legislation that is directed towards making the path that victims must travel towards obtaining appropriate compensation just that little bit less traumatic than it inevitably is.

There are two substantive aspects to the bill. They have been addressed previously. The first is an amendment to section 18 of the Victims of Crime Act so as to remove the previous obligation for a victim to serve their application for compensation on the offender. That previous obligation will be gone. Bear in mind, the compensation process is a two-stage process, the first being the submission of an application to the Crown Solicitor for compensation. It is that application that the victim will no longer be required to serve on the offender.

Then, in the event that an amount of compensation is not agreed following the application being served on the Crown Solicitor and an application to court being required to be made, the provision requiring that the offender at that point ought to be joined to the proceeding is now modified to give the court a discretion in all circumstances not to require that the offender be served. Previously, the discretion of the court to make such an order was limited to circumstances where the whereabouts of the offender were not known or could not be readily ascertained.

This is about shifting the focus towards ensuring that the victim can go about applying for appropriate compensation in an orderly way. It means that the offender will not necessarily be involved at all, and that will be particularly the case in those circumstances where the amount of compensation is settled by agreement with the Crown Solicitor. It may mean that in a number of cases the offender will not be involved, even in circumstances where an application is made to the court after there being no agreement. That application to the court is made pursuant to section 18(5) of the act.

In both stages of the application process, there is now an opportunity for the victim to proceed without necessarily taking positive steps to engage the offender in the process. This is a reform that continues, appropriately in my view, a focus that has been increasingly applied to the wellbeing of victims—indeed, to providing as full and thoroughgoing as possible, justice to victims as part of our justice system. It is one that I applaud and we ought to continue in every way to ensure that all the objects of our system of justice are served. That is largely concerned with the appropriate punishment of offenders. It is also substantially and relevantly concerned with providing justice for victims. This is certainly a substantial step in the right direction.

At this time when the parliament contemplates further reform in relation to the rights of victims, it is appropriate that we take the chance to step back and get some perspective of the time frame in which victims have been considered in the system of justice. It has not been very long in the history that a focus on victims has been applied. On a day when we have spent considerable time appropriately reflecting on the life of a great Australian political leader, one whose origins commenced in South Australia, I think it is appropriate in the course of this debate that we take a moment to reflect on the contribution in this area of Ray Whitrod.

Ray Whitrod was born 104 years ago and died more than 15 years ago after an extraordinary life of service to police and to our to our justice system in a number of ways. I would encourage members to reflect on the extraordinary scope of his contribution. As is well known, Ray Whitrod was a very significant South Australian. He perhaps came to greatest national prominence during the time he was the police commissioner in Queensland. He became known nationally when he relinquished that role in protest against the corruption of the then Queensland government. He made some very hard decisions about maintaining his commitment to integrity. That was in the early 1970s.

He returned to South Australia and, in 1979, founded what was then known as the Victims of Crime Service. He was an instrumental factor in the commencement of an organised structure that was looking to provide practical support for victims. It has since become known as the Victim Support Service and it has since gone national, and models along the lines of that which Ray Whitrod set up back in 1979 have been rolled out across the country.

The original service that was set up by Ray Whitrod was, in fact, independent of government and called on community to get around victims and to provide practical supports. There has since been the provision of a fund from which compensation can be paid. The concept that Ray Whitrod brought to focus on victims has since been formalised and very much brought into the public framework, but it is good to recognise that a great South Australian, as part of the significant work of his life, was a founder for this now national structure.

I am very proud to reflect on Ray Whitrod because he encouraged me, and I still have his copy of the Queensland Criminal Code, which he gave to me 25 years or so ago and which he held dear to him as a reminder of the difficult times that he went through as commissioner in Queensland. He was someone who throughout his life in all sorts of ways stood up against corruption. He stood up for those who were, for whatever variety of reasons, left in circumstances where they could not fully speak for themselves, and in so many ways he provided an example for all of us of the enormous achievements that can be made when one commits oneself to community service.

This bill is another step along the way to ensuring that victims can achieve as full a justice as we can deliver for them. I commend the bill to the house, and in particular would take the opportunity to dedicate my remarks to the memory of Ray Whitrod, another particularly significant South Australian and great contributor in this area.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:38): I indicate my appreciation to all speakers for the contribution to the consideration of this bill. I thank the opposition for their indication of support for the bill, and members on this side, the member for Colton and the member for Heysen, for their supportive comments.

In concluding the consideration of the bill, can I just also place on the record my appreciation to the Commissioner for Victims' Rights, Ms Bronwyn Killmier, a former longstanding member of the South Australian police force and who now has the role of commissioner, for her support to this advance.

I did listen to the member for Kaurna's contribution and his concern about the failure of this government to reappoint Mr Michael O'Connell as the Commissioner for Victims' Rights. I remind the member that the contract of employment for Mr O'Connell had concluded. He was invited to apply, and he did. Ms Killmier was the successful applicant, and she comes with a commendable record.

I do not know whether the former commissioner made any presentation to the former government that the ill that we are remedying in this bill should have been attended to in the 16 years of their government by former attorney-general Atkinson. The time of their government overlapped the time when Mr O'Connell was first the victims' rights director and subsequently the commissioner. If he did, clearly he was not successful in getting the former government to act on this important reform. That is disappointing because the passage of this bill will relieve literally hundreds of applicants of indignity and potentially quite stressful circumstances by virtue of no longer having to serve the offender.

On the other hand, if he did not do it at all—I can only think that there are two circumstances—he did not think it was a matter of such moment that it needed remedying, which I think would be concerning. I read his annual report each year when he tabled it in the parliament. There were a few years when I did not read it because it came to my attention that the former commissioner for victims of crime had failed to lodge his report. I think at one time it was a period of some four or five years since he became the commissioner that he had not lodged a report at all.

I raised the matter with then attorney-general Rau at that stage to ask, 'What happened to this annual report? Has Mr O'Connell submitted this report to you and you have just forgotten to table it in parliament?' 'I will make some inquiry' was his shortened response, and he did. He found that Mr O'Connell just did not think that it was necessary for him to do that, that it was not a pressing matter for him. He thought that he might be in the role for a number of years and that, when he thought it was appropriate, he might report to the parliament what he had been doing.

I am pleased to say that the former attorney reminded him about what the act said and that he was required to tender an annual report, and he did so, covering the work that he had undertaken for that period, to comply with the obligations under the statute. Since that time, in the time that overlapped his appointment and at least my being in the parliament, I duly read his annual report because I think it is important for all of us as members of parliament to keep ourselves informed of these important statutory officers. If they have recommendations for us to consider as a parliament, then we should look carefully at those recommendations.

I do not recall this issue being raised by the former commissioner for victims' rights. As the previous government did not raise it, I would certainly be alert to the fact that it is something that we should consider. I would have considered at least presenting it to my own party at the time to progress it as a private member's bill. It has always been a concern to me. I have done cases in relation to these applications right back from the commencement of the original Criminal Law Consolidation Act, which was passed in 1978.

At that time, and in the early 1980s, I think there was still a maximum compensation of only up to $1,000. I think it fairly quickly moved to $2,000. I remember doing a multiple rape application for compensation for $2,000. I thought to myself at the time how manifestly inadequate that was for the shocking experience of the woman in that case. Over the years, we have remedied that and we have updated it. Although it took a long time for the former government to eventually increase it from $50,000 to $100,000, they did do it. The former attorney introduced a scale of application, which has some significant limitations and deserves some reviewing.

In the meantime, this is an important aspect that we need to remedy. It has not previously been brought to our attention to act on. This government acted on this advice from the Crown Solicitor's Office. It is supported by our relatively newly appointed Commissioner for Victims' Rights, and I am pleased to have her support in that regard and advocacy generally in the support of victims.

I also express my appreciation for the member for Heysen's recognition of Mr Ray Whitrod, who was a pioneer in relation to the establishment of the Victim Support Service, a community-based board-led organisation, which has a history over decades of providing support.

Particular groups, such as those that provide support to victims of homicide within families, are active across the board in providing counselling and support services for the many victims subsequent to the royal commission by the late Mr Ted Mullighan QC into the sexual abuse and exploitation of children in institutional care. They have undertaken a number of roles over the years.

When the previous government advised that they were going to provide funding to the Victim Support Service to provide a legal service—that is, for legal representation and advice at courts—there was some comment that, whilst the service is a very important one for the provision of support of those who are going through court proceedings, I did not feel, and I still do not feel, that that is appropriately undertaken by the Victim Support Service. It needs to be undertaken by a legal service.

Members might be familiar with the recent announcement of that particular work being put out to tender. Last Monday or Tuesday, it was made public that the Legal Services Commission was the successful applicant to undertake that work in respect of court legal advice, so the service will continue but via a legal entity which is able to employ legal services and which will give a greater network of service through South Australia.

This does not in any way reflect on the work that the Victim Support Service is competently undertaking. In fact, I have been impressed by the level of work they have done in relation to counselling, so much so that I have publicly indicated my support that those victims who might now be going through an application process for extra redress under the national scheme for children and who are victims of institutional abuse and have been given a package of money for counselling and support services if they are successful—money for compensation up to $150,000, plus counselling service—may wish to avail themselves of the Victim Support Service for that area of support.

Obviously, in many of our country regions, or areas where the VSS does not operate, it is also important that those applicants are given a chance to still have a service and may employ some other private provider for the purposes of accessing that locally, rather than having to come to Adelaide. I thank members for their very considered contributions, and the support indicated by the opposition, and seek the swift passage of the bill.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.