Victims of Crime (Victims Rights) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2017.)

The Hon. M.C. PARNELL (22:50): I will be very quick. The Greens are supporting this bill. We congratulate the Hon. John Darley on introducing it, and I acknowledge the presence in the gallery of the Commissioner for Victims' Rights. One issue that this bill seeks to address is the problem that victims often find that they are not kept in the loop when it comes to decisions around the prosecution of the person whose actions resulted in them being a victim.

I know from personal family experience that sometimes the police are reluctant to disclose to victims what it is they intend to do in particular circumstances, whether they are going to lay charges or not. I think that it is unacceptable that a victim of crime should have to use the Freedom of Information Act to find out what action the police were proposing to take in relation to the perpetrator of the injury that was bestowed on them.

I think that this bill makes a lot of sense. It strengthens the existing provision in section 9A of the Victims of Crime Act. It creates a right, if you like, or an entitlement on the part of the victim to be informed about various changes that might be made to the charges, whether it be a downgrading of charges or a dropping of charges. Overall, I think that it strengthens the legislation and makes it clear that there should not be any wriggle room. The victim is an integral part of the process. They should be kept informed and their views should be sought before serious decisions are made. That is what this bill does, and the Greens are happy to support it.

The Hon. J.E. HANSON (22:52): I rise on behalf of the government to oppose the bill. I will outline some of the reasons in regard to that. South Australia has traditionally been a leader in the areas of victims' rights and recognition of the important place that victims hold in the criminal justice system. The current Victims of Crime Act 2001 has extensive provisions outlining the rights of victims and the support that should be provided to them. The language closely mirrors the language of the United Nations 'Declaration of basic principles of justice for victims of crime and abuse of power'. The declaration was adopted in 1985 and was an important influence when drafting the act.

Consultation with both the Director of Public Prosecutions (DPP) and South Australia Police (SAPOL) was undertaken in relation to the bill as it would have significant impacts on the operation of both agencies if passed. The DPP is strongly committed to the principles outlined in the Victims of Crime Act, and he strives to adhere to the standards as required by the act when dealing with victims of crime. However, in the view of the DPP, the bill is unnecessary where it merely changes the language from 'should' to 'must'. If an agency is noncompliant with the Victims of Crime Act, it is likely that a minor change in language would not address the issue; the bill would act as mere window dressing.

Furthermore, the DPP outlined very strong concerns regarding the more substantial amendments in the bill, which I will discuss in more detail as follows. The amendment of section 9A(2), which requires that the prosecution obtain the consent of the victim before making certain prosecutorial decisions, directly contradicts the recognition in sections 5(3) and 5(4) of the Victims of Crime Act that the principles and rights within the act are not to affect the conduct of criminal proceedings.

Furthermore, prosecutorial decisions take into account wider factors than just the wishes of the victim, and it is an unacceptable restraint on the prosecution to impose such a condition on their decision-making process. Victims are also not best-placed or appropriate persons to make the prosecutorial decisions as they are, for obvious reasons, emotionally involved in those proceedings. Consultation with the victim is an existing and appropriate right; however, elevating victims to a decision-making position does not fit well with the adversarial context of our criminal justice system.

In relation to the amendments to section 16A, agencies are already required to consult with the commissioner in the existing VOC act. The new provisions would, in some instances, make agencies such as the Office of the DPP and SAPOL subject to the direction of the commissioner without any ability to refuse to provide information or any check on the power of the commissioner. There may be instances where the provision of information may not be appropriate or may be prejudicial to matters. Secondly, the amendment to section 16A(2)(a) will no longer require the commissioner to consider whether compliance with part 2 of the act would have been practicable.

The commissioner will be able to recommend that a written apology be given to the victim without the commissioner having to consider whether compliance with the act might have been practical. It is not appropriate for agencies such as the DPP to apologise in writing if a reasonable assessment of what occurs indicates that the agency was not at fault.

As I mentioned earlier, SAPOL was also consulted in relation to the bill. The prosecution, victims and legislative review areas all examined the bill. All acknowledged the principles behind the bill and, like the DPP, are very supportive of victims rights, but there was no support for any aspect of the bill. SAPOL advised that the bill would, if passed, significantly change the conduct of many prosecutions to the extent that the proposed amendments would be unworkable.

It was made clear to the government that this bill, whilst it may have good intentions behind it, would end up doing a disservice to victims of crime in harming the prosecutorial processes which are the mechanism for seeking justice for the offences done to them. It is for these reasons that the government opposes the bill.

The Hon. A.L. McLACHLAN (22:57): I rise to speak on behalf of the Liberal opposition in relation to the Victims of Crime (Victims Rights) Amendment Bill. I advise the chamber that the opposition will not be supporting the bill. We will support the second reading to allow the progression of the bill into the committee stage, but will be opposing it at the third reading.

The Liberal opposition's reasoning mirrors that of the government, which has just been outlined by the Hon. Mr Hanson. The Liberal Opposition has had regard to both the provisions of the bill and the substantive provisions of the Victims of Crime Act, as has the government, in particular focusing on prosecutorial decision-making. There is a need to delicately balance the involvement of victims of crime in the criminal justice process with the need to ensure that the independence of the Director of Public Prosecutions and his office is maintained.

The Victims of Crime Act, in its current form, already enables victims to be informed of a broad range of information, including, for example, the progress of investigations, charge details, applications for bail, amendments of charges, outcomes of proceedings, sentencing details and the like. Further, the current act also enables a victim who is dissatisfied with the determination made in criminal proceedings to request that the prosecution consider an appeal.

We trust that the DPP and his office and staff will continue to carry out their important role in upholding these legislative rights. It is the opposition's view that the bill encroaches too far on the Director of Public Prosecutions' prosecutorial discretion. This is particularly in respect of the proposed amendment that the victim can seek a stay of proceedings through the Commissioner for Victims' Rights if the prosecuting authority made certain decisions without first consulting the victim.

Whilst we must ensure that wherever possible we keep victims informed and involved, we have an equal duty to ensure that prosecutorial discretion and the independence of the DPP is maintained. As I have indicated to the chamber, the Liberal Party will support the second reading to allow the bill to go into committee, but we will be joining with the government to vote against the bill at the third reading.

The Hon. J.A. DARLEY (22:59): I want to thank the Hon. Mark Parnell, the Hon. Justin Hanson and the Hon. Andrew McLachlan for their contributions. I also thank the Victims of Crime Commissioner, Mr Michael O'Connell, for the assistance he has given on this bill and his tireless work to support victims of crime. With that, I commend the bill to the house.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. J.A. DARLEY (23:01): I move:

That this bill be now read a third time.

Third reading negatived.