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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2008-11-13 Daily Xml
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CIVIL LIABILITY (OFFENDER DAMAGES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2008. Page 264.)

Ms SIMMONS (Morialta) (11:20): The government's position is that it supports the general policy of this private member's bill, but thinks that the details are sufficiently flawed that the bill should be opposed. The government thanks the honourable member for bringing the question to the attention of the parliament. The government has asked its legal and policy officers to examine closely the proposals this bill contains. The reasons why this bill cannot be supported in its present form include the fact that, as drafted, it requires each victim to litigate the claim against the offender to final judgment. There is no provision for settlement.

This seems unnecessarily difficult, expensive and time consuming for victims. There is no guarantee about what, if anything, they will get from the trust fund on completing this exercise. Even if they do get something it might not suffice to cover the costs of litigation (which are not recoverable from the trust fund), so they could still be out of pocket. It also appears that in this bill there is no option to settle out of court. So, I ask: why put victims through this process? A more administrative system that pays attention to the reality that the vast majority of claims are settled would, I believe, be much better.

Another problem with the bill as drafted is that if there is more than one victim the appointment rules do not work because each individual judge will not necessarily know how many eligible victims there are. Some of those claims might not yet be ready for trial and others might be before other judges of the same or different courts. The damages likely to be awarded to those victims will depend on many imponderables, such as whether the other judges will find those victims or their witnesses to be truthful. Suppose there are three victims of the same offender (given that we are talking mainly about offenders who were sentenced to imprisonment, and given that, once there is money in the fund, any victim of any of their offences could claim), that is entirely possible.

Let me continue. The trust fund contains $30,000. Each victim's case is tried by a different judge. Each judge decides that the victim before him is more deserving than the other two and orders that she gets $20,000. Then what? In other words, where there is a finite fund of money and competing claims on it, it is hopeless trying to process each claim in isolation without any apportionment rule. We have to decide sensibly who will be eligible under this scheme.

Another problem with the bill is that there is no definition of 'victim'. It is not clear whether the bill intends to pick up the definition of 'victim' as in the Victims of Crime Act or what is actually meant by 'victim'. Experience with the former criminal injuries compensation act suggests that a wide range of persons might consider themselves to be victims of crime, including those physically hurt, those psychologically hurt, their families, witnesses, people who are later told of the offence, people distressed by seeing television footage, etc. Access to the trust fund depends on being a victim and a definition is essential to minimise litigation.

I believe that these examples should be enough to point to the size of the major problems. I understand that there are many other problems of lesser magnitude. In conclusion, I would like to add that, although the bill proposed by the honourable member is based on existing New South Wales law, it does not necessarily mean that the proposed scheme will work. The government therefore opposes the bill.

Debate adjourned on motion of Mr Griffiths.


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