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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (VICTIMS OF CRIME) BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 1341.)

Mrs REDMOND (Heysen) (16:08): I will conclude what I was saying as we approached the lunch break, to complete the story about the two balloons in the sky above Alice Springs, because as it turned out I acted for a number of family members of the people who, sadly, died—

The Hon. M.J. Atkinson: Is this Alice Springs?

Mrs REDMOND: —yes—in that accident. It was quite bizarre to find that, because these people died and they had no dependants, for the most part, their claims in their entirety consisted of just this payment—just the funeral expenses and the grief or solatium (or whatever it may have been called at the time). So, for the most part, the claims were extremely small because, of course, with a death there is no pain and suffering that continues after someone's death. So, there is no payment to the rest of the family for that; there are no ongoing medical expenses.

Had anyone survived, the medical expenses would have been catastrophic—the loss of earnings, and so on—but all of that died with each of those people. They had no dependants, so there was no dependency claim, in terms of the earnings that might have been expected to be spent on the dependants. They really had very limited claims, except for one person who had paid for the ticket with a credit card out of America that covered an insurance policy for the flight.

That person got a significant amount of damages and the rest of them, really, were restricted to the grief and funeral expenses. I pass that on by way of anecdote in terms of the nature of these payments for grief and funeral expense payments. We absolutely endorse the view of the government that it is entirely appropriate that this quite minimal payment that is made to people in often quite tragic circumstances should be equally applicable in the case that is cited in the second reading, that is, the death of a child where the mother and her boyfriend were found guilty of criminal neglect resulting in the death but were not actually convicted of murder or manslaughter.

I want to cover only three more matters in my comments in relation to this bill, and the next one is that of mandatory restraining orders for sexual offences. The government's amendment essentially requires that the court must consider the imposition of a restraining order upon conviction for a sexual offence. That is defined—and it is quite tightly defined. If the court chooses not to impose the order, the court must state its reasons. Basically, there is an onus on the court to satisfy itself as to why not to issue a restraining order should that be the choice the court makes. Indeed, if the court decides not to issue a restraining order that decision is appealable. The court must state its reasons and an appeal can be made against the court's decision in that regard.

We considered this proposal and felt that it has considerable merit, but we did wonder why it was restricted specifically to sexual offences inasmuch as it would seem to us that there could be some offences of violence against persons, for instance, where a restraining order may be just as suitable and just as applicable. I would be interested to know the Attorney's comment on why—apart from the ease of drafting—one would restrict it simply to sexual offences, because it would seem to us that the reasoning should apply to any number of other things. I would imagine that, in considering whether to impose a restraining order, the court would be considering things such as the likelihood of someone approaching the person again.

The whole suggestion in the Attorney's second reading explanation was to do with the fact that they are not to make contact. It would seem to me that if you have been beaten up, for instance, by someone you may be just as fearful. So, whilst we support the notion that it is brought about by this recommendation, it would seem to us to invite the question: why just the sexual offences? The last two matters really concern the Commissioner for Victims' Rights. The first one is a proposal within the legislation that the Victims' Rights Commissioner be exempt from freedom of information.

Our freedom of information legislation includes a range of organisations and agencies that are not subject to freedom of information requests—the Auditor-General's office, for instance, springs to mind. The proposal in this legislation is that the Commissioner for Victims' Rights should also be exempt. Again, we discussed this at considerable length, and our conclusion was that we felt that there would be some occasions where such an exemption might be appropriate but that a blanket exemption for everything associated with the Office of the Commissioner for Victims' Rights seemed to us to be too broad.

Whilst we accept that there may be some occasions, the question then becomes: are not the specific exemptions already available under the act sufficient and, if they are not, is there another way of approaching it? It seemed to us that if someone wants to make a freedom of information application to the Office of the Commissioner for Victims' Rights they will simply be denied before they even have any assessment of what they might be wanting to get and why.

Someone might put in a freedom of information request about things one might normally expect to find in an annual report; for example, the number of complaints, the nature of the complaints and how many complaints of a certain nature were dealt with by the commissioner. It seems to us that there would be no harm in that sort of freedom of information request and no basis in other circumstances why the commissioner would be unwilling to provide the information, and to put in place a blanket exemption seems to be a sledgehammer to crack a nut. While we foresee some circumstances where the reasoning would follow that the government would want to exempt its having to disclose—and there are lots of things which I expect under the existing legislation it would not be prepared to disclose—the blanket exemption seems to be a little wide.

The last issue relates to who may represent a victim in making a victim impact statement. The proposal in the current legislation has been broadened from that which was in the original bill. The current proposal is to allow a victim impact statement to be presented by another person on behalf of the victim, and it lists a number of people including an officer of the court, an immediate family member or close relative or, in the absence of these people, a person who, in the opinion of the Commissioner for Victims' Rights, is suitable to act in the role or, in any event, an employee of a group or organisation devoted to victim support or the Commissioner for Victims' Rights or a person acting on behalf of the Commissioner for Victims' Rights.

Again, the opposition supports the principle that the government is driving at here, but it seems to us that this is unnecessarily restrictive. For instance, why would it be necessary to restrict the person who could be chosen to an immediate family member or a close relative. If it is neither of those two, then you have to go through the process of its being someone appropriate in the opinion of the Commissioner for Victims' Rights. In the case of an Aboriginal person, for instance, someone who would qualify as kin would not necessarily be a close relative. Why could it not be a friend? Why could it not be any number of other people? Why should that person have to get the tacit approval of the Commissioner for Victims' Rights?

We support the principle. If someone does not feel competent or comfortable, and feels that someone else could do a better job of presenting the victim impact statement, why not just allow them to choose whomever they want to choose? If they themselves do not want to make that choice, then the Commissioner for Victims' Rights could propose someone to do that job for them; or if they feel they do not know anyone who could do it for them, then engage the Commissioner for Victims' Rights. We support the thrust of what the government intends, but we think it is probably unnecessarily restrictive and could be worded slightly better. Perhaps we can think about that between this house and the other place in order to meld it into an easier form of words.

With those comments, I indicate that, in essence, the opposition supports the bill. It supports the increasing of the interests of victims in the court process. I began my comments by saying that it is important for victims to feel that they have been heard in the court process. It is often highly therapeutic for them to have that feeling. Even in the road accident cases with which I used to deal most frequently, often it was not so much about the money that people were getting—although sometimes that became a major factor—but, rather, people wanting their day in court and wanting to be heard and understood. That is the real function of a victim impact statement. People who have been affected by criminal behaviour should have the chance to have their day in court, to be heard and understood as to the impact the criminal behaviour has had on them and their family.

We support the bill. I hope we will not be too long in committee. I indicate that we will not be moving any amendments in this house, in any event. If we are going to move any amendments, that will occur in the other place.

Dr McFETRIDGE (Morphett) (16:20): The member for Heysen, the shadow attorney-general—soon to be the first female attorney-general in South Australia—has expressed quite a good view on this piece of legislation and, as she has said, we support the legislation. I will speak only briefly, but I need to speak on this bill because I have seen the impact on victims of crime, both within my own family and on constituents and friends. It is an important piece of legislation in that, as the shadow minister has said, the victims do get to have their say, whether it is in court or through other legal channels. It is an absolutely necessary part of the justice process.

The impact of a burglary on my daughter in New Zealand is still fresh in her mind a couple of years later. She is paranoid about alarms and breakdowns. It is terrible, and, like many crimes, the person who committed the crime was never caught but for the victim—in this case, my daughter—the impact will live on for a long time. Just last year my son and his wife packed their car a couple of days before Christmas ready to go to visit in-laws in Eden in New South Wales. Fortunately all the Christmas presents were not in the car, because it was stolen. The impact could have been far worse than just the car going; it could have been all the presents and a lot of other personal belongings as well, but it is still a severe impact. My soon-to-be four year old grand-daughter could not understand where the car was and why someone would take it, so it is not just adults that are impacted upon, children are affected as well.

My wife was at home alone (I was out at a parliamentary function) when three males came over the front fence, banging on the windows and doors and terrifying her. It had a significant impact on her, and now the alarm system in the house has been upgraded and more locks put on the doors just because she wants to be able to feel safe in her own home. The impact has been quite severe.

Every one of us in this place would have had complaints from constituents about the impact of crimes committed against them or their friends. It does not matter whether it is just your letterbox being ripped out or whether it is a major assault, the impact is severe. So I applaud this extension of the ability of victims of crime to speak up and have their day in court, as the shadow minister has said, and look forward to negotiations for what the shadow attorney-general has called an improvement in the legislation, so that victims are able to have their day and, hopefully, gain some personal comfort so that they can move on with their lives. I support the bill.

Mr HANNA (Mitchell) (16:19): I speak in support of the government's reform of the victims of crime legislation. This is beneficial legislation and I have no hesitation in supporting it. In part it is the legacy of the great enthusiasm that the Hon. Chris Sumner, a former attorney-general, had for extending the rights of victims of crime. He, of course, was attorney-general throughout the 1980s and up until 1993; he would probably be considered too progressive for that role in today's parliament. Nonetheless, this is fine legislation.

There is just one area on which I want to expand a little. I was considering an amendment because of something the Attorney-General said when he was describing this legislation. He was particularly referring to victim impact statements in the context where the accused person may not fully understand what is being said, perhaps by reason of a mental impairment. The Attorney-General said:

It has been brought to my attention by the DPP that there is a deficiency in the right of a victim to make a victim impact statement where the accused is found unfit to stand trial or not guilty by reason of mental impairment.

After some discussion of that point, the Attorney-General went on to say:

In my opinion, there is only benefit in allowing the elocution of a victim impact statement where there is some prospect that the defendant /accused will understand it to an appreciable degree.

It seems to me that victim impact statements have three benefits; one is that there is the potential to inform the judge, and it may actually be of use in the sentencing process. It may also have a salutary effect on the accused, if the accused has any conscience at all; it can be beneficial to be confronted with the harm done by the criminal act. Thirdly, there is a cathartic experience for the victim in being able to present the feelings of hurt, perhaps shame or perhaps anger in a formal experience such as the court environment at the conclusion of a trial or following a plea of guilty.

Upon looking at the legislation more closely, I do not think there is need for an amendment. It seems to me that there remains a judicial discretion for people to give a victim impact statement where the defendant has a mental illness or intellectual disability and thereby would perhaps not fully appreciate the victim impact statement that is being made. I think this is important. If the victim in such a matter was to communicate perhaps through the prosecutor to the judge that it was very important personally for the victim to be able to address the court, even if the defendant had no understanding of what was being said, then I am sure that the presiding judge would take that into account and the discretion might be exercised to allow the statement, even though one of those three benefits of victim impact statements I have outlined would be rendered inapplicable due to the state of the defendant's mind.

I wanted to address that specific point and make clear that it is not just about telling the defendant what harm they have done; it is also about the victim's experience in the courtroom and having the satisfaction of having stated for the record the harm that has been done and the dreadful feelings that follow the perpetration of a crime.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:28): I thank the members for Heysen, Morphett and Mitchell for their contributions. I am glad the bill attracted some debate. On the question raised by the member for Heysen about restraining orders, it is proposed to be restricted to sexual offences because our advice from the Commissioner of Victims' Rights was that that was where the problem lay. In the case of domestic violence, of course, specific domestic violence restraining orders are available (apprehended violence orders) which draw attention to themselves. We will see whether the sexual offences problem emerges elsewhere. The government is content to start these proposals modestly and then build on them if they work out.

On the question of freedom of information, the government simply does not agree that its exemption is too broad. If the commissioner wants to release information on what he or she regards as suitable detail or bases, so be it. We just disagree with the opposition's approach on that matter.

On the matter of the victim's delegate, the simple answer is that we want to have safeguards against the victim being bullied into appointing, say, a self-aggrandising publicity hound—no names, no pack drill—or anyone who will do damage by unnecessarily or improperly whipping up outrage to the detriment of the case and, ultimately, the victim himself or herself. On the matter of—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Yes, I agree with you and that is normally what I do. What is incorrect is 'themselves'.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: I agree with you on that; we are at one on that. In relation to community impact statements and neighbourhood impact statements, there is something appealing, at least in theory, about what the member for Heysen says about the weakness of collated statements compared to those delivered personally. There are practical limits as to what can be done in this regard. These are new and unique experiments in Australia and there is a degree to which I think it is wise to take a cautious approach (as we have done) and to see how they work. Of course, we will be open for comments made by the commissioner for victims' rights—and anyone else—in the light of his practical experience of these changes.

On the question of submissions of sentence, the member for Heysen is quite right to say that the DPP and the defence do not generally specify the actual sentence thought to be desirable but confine themselves to comments more general than that. We do not think that the provision will cause problems as it is facilitative rather than mandatory, but again it is new in Australia and we will have to wait to see how it turns out.

On the question of mental impairment, the amendment to which the honourable member refers is that in clause 10. The answer to her question appears to be in two parts. The first is to note that just because a person is not guilty of an offence because of mental incapacity at the time the offence is committed does not necessarily mean that the person will not be mentally competent (usually because of the benefits of medication) at the time the trial happens. Indeed, that will commonly be so. Secondly, the relevance of the victim impact statement is to the imposition of the supervision order and that must be done under section 269O of the Criminal Law Consolidation Act.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mrs REDMOND: I was a bit puzzled about the reason for inserting this new paragraph. I will pick up where the section begins. We are talking about the Criminal Law (Sentencing) Act. Currently, section 6 of the act states:

For the purpose of determining sentence, a court—

(a) is not bound by the rules of evidence; and

(b) may inform itself on matters relevant to the determination as it thinks fit.

What then really is added by paragraph (c)? Was it motivated by a particular issue that arose because of other changes that are made, because what is then added is 'must act according to equity, good conscience and the substantial merits of the case'—the sort of basic law principles with which we are all familiar—'without regard to technicalities and legal forms'? Why was that specifically inserted and, indeed, is it connected to the amendment—and I am trying to shortcut this discussion? Clause 6 deals with the amendment of section 7A, victim impact statements (further down the same page). Currently, section 7A(2) states:

A victim impact statement must comply with and be furnished in accordance with rules of court.

That is deleted. If you delete it, it looks to me as though the provisions we already have in paragraphs (a) and (b) are sufficiently broad. I am curious about why we are adding equity, good conscious and substantial merits. Is it there because it was a good idea for some reason or because it is trying to capture something specific?

The Hon. M.J. ATKINSON: The member for Heysen gets the gist of my answer. Section 7A(2) is cut and reappears as new section 7C. There will be occasions when the defence will want to contest a community impact statement, and there has to be a set procedure for them to do so. I doubt that we would want to set up the full panoply of the law of evidence for that contest to occur. As Attorney-General, from time to time I read of cases where it is foreshadowed that the defence will or already has contested aspects of the written victim impact statement. I do not doubt that community impact or neighbourhood impact statements would be any less conjectural.

Mrs REDMOND: My question was really whether it has been the case that the existing provisions in (a) and (b) of section 6 of the act have been inadequate to allow a court to act, in effect, according to equity, good conscience and the substantial merits of the case.

The Hon. M.J. ATKINSON: I cannot think of an example where the parties or the courts have complained to me as Attorney-General about the process. The provision we have put in is a common one in jurisdictions.

Clause passed.

Clause 5.

Mrs REDMOND: I want to clarify whether clause 5 is as broad as it seems to me to be. It provides that, even though you are not entitled as of right under the legislation to make a victim impact statement in any circumstances, unless the court has a reason for you not to you can put in an impact statement through the prosecutor. Is that the effect of this clause?

The Hon. M.J. ATKINSON: The member for Heysen well knows that a camel is a horse designed by a committee, and this is one of the compromises as a result of Mr Darley's amendments in another place.

Clause passed.

Clause 6.

Mrs REDMOND: I have already indicated that in we will probably move an amendment to clause 6(3)(b) to delete the reference to 'director' so that it will simply state that, where a defendant is a body corporate, the court can determine a representative satisfactory to the court. My question is this. In the beginning of that section it says 'subject to subsection (3c) (but despite any other provision of this act), the court must, if the person so requested when furnishing the statement, ensure that' the defendant, or the representative if it is a company, is present when the statement is made. Therefore, given the insertion in the very beginning that I asked about first, that is, that the court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, is that new provision broad enough to enable the court of its own motion to direct that the defendant be present even if there had not been a request? So, if the court has a view that equity, good conscience and the substantial merits of the case dictate that the defendant should be there, the court can initiate it under that earlier provision.

The Hon. M.J. ATKINSON: The answer is: yes.

Clause passed.

Clause 7.

Mrs REDMOND: On social impact statements referred to in new section 7B(2)(b), who is going to make the social impact statements? How is the court going to determine who the appropriate person or people might be to address the court in relation to a social impact statement, and upon what topics it should have an address of a social impact statement?

The Hon. M.J. ATKINSON: The answer to the member for Heysen's question is that the Commissioner for Victims' Rights will do it according to the proposed section, but I imagine he would farm it out to a range of people who are recognised as experts—for instance, on the harm of drugs and alcohol in society—and eventually we hope many of these statements may just come off the shelf.

Mrs REDMOND: In that event, does the Attorney-General then agree with the proposition that I put in my second reading contribution that, in fact, it becomes a matter of judicial recognition of what is happening and what is realistic in the community rather than having to specifically hear social impact statements? It will just be a matter of judicial recognition.

The Hon. M.J. ATKINSON: The member for Heysen may be correct, and we will see as time goes by.

Clause passed.

Clauses 8 and 9 passed.

Clause 10.

Mrs REDMOND: I tried to listen carefully to the Attorney-General's response to the second reading on the issue of the people who are unfit to stand trial or found mentally incompetent to be convicted, and I am still a little puzzled by what the consequence of this clause is—and I assume this is actually the clause dealing with that issue.

Subsection (3), the new subsection inserted into section 269R of the Criminal Law Consolidation Act, seems to say that, if a court is fixing a limiting term (by which I take it we are talking about someone who might be put into an institution other than a correctional services facility, so a mental illness hospital or some such thing), the court still has to listen to the victim impact statement even though the person who has committed the offence cannot do that.

First, I want some clarity about whether I am correct in my assumption that, when you are talking about a limiting term, you are talking about something quite specifically different from imposing a sentence (if that is not the case, I want to know what that term means and why it is there instead of imposing a sentence), and what is the intention of that section? I am still somewhat at a loss as to how a victim impact statement is useful to the court if the person has been found either mentally incompetent and unfit to stand trial or not guilty by reason of his mental incompetence.

The Hon. M.J. ATKINSON: The answer to the first part of the member for Heysen's question is yes. The second part is that, as I said in my second reading response, by the time the alleged offender gets to trial he may be perfectly well, owing to taking medication.

Mrs REDMOND: Is it the case then that this section will only apply if that situation eventuates; that is, will clause 10 only apply to a circumstance where someone is competent by the time they are being dealt with, but found not to have been competent at the time that the offence was committed? Is it that narrow?

The Hon. M.J. ATKINSON: Yes.

Clause passed.

Remaining clauses (11 to 16) and title passed.

Bill reported without amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:48): I move:

That this bill be now read a third time.

Mrs REDMOND (Heysen) (16:48): I want to make one very brief contribution (no more than about a sentence long) on the third reading. It is in response to the comment that the Attorney made (and I thought it was better to do it here than in committee) in response to the suggestion that a blanket exemption for the office of the Commissioner for Victims' Rights was too broad. He said words to the effect that if the commissioner wants to release appropriate information then he will do so, and he will not just hide himself under the blanket of that cover.

My comment is that the blanket exemption is not so used, for instance, by the Auditor-General. I inquired how much he had spent in trying to stop the DPP from making a report to this parliament. Whilst there was no reason on earth why he would not be able to release that and it would not be in the public interest to do so, and all sorts of things, the Auditor-General chose not to agree to it, because all I got back was the sentence, 'No; we are exempt,' when I made an FOI application.

I just wanted to comment that I have no confidence that giving any statutory authority—and I mean no disrespect to the present Commissioner for Victims' Rights, who, I am sure, is an honourable person—a blanket exemption will lead to their ever giving a response other than saying, 'We're exempt. Take your FOI and put it in a dark place.'

Bill read a third time and passed.

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