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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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STATUTES AMENDMENT (VICTIMS OF CRIME) BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's Amendment No. 1 be disagreed to.

The government bill extends the right to make a victim impact statement that exists now only for indictable offences to 'prescribed summary offences'. A prescribed summary offence is a summary offence that results in the death of a victim or that causes total incapacity. The purpose of this measure is to capture those cases where, for example, an offender has been reckless or negligent in his or her driving and death or total permanent incapacity to the victim results, but the offender has been convicted for a summary offence as opposed to a major indictable charge of cause death by dangerous driving.

There are not many of these cases, but the impact of these offences warrants a victim impact statement being read. It should be noted that it would also apply, for example, to industrial accidents constituting summary offences under workplace safety law. The amendment proposed by the other place seeks to broaden this general right to include those victims who have incurred serious harm as a result of a summary offence. The government thinks this is impractical. The exigencies of the business of the Magistrates Court and the need to deal with a list in an expeditious manner means that business cannot be interrupted or delayed except at great disruption to the summary dispensation of justice.

A glance at the cause list on any day in any Magistrates Court in South Australia provides the proof of this. However, the government did take on board the thrust of the amendment and included a provision in the bill for the benefit of victims of serious harm and other offences.

Clause 5 amends section 7 of the Criminal Law Sentencing Act so that, in cases where the offence is not an offence to which a victim impact statement may be furnished in accordance with section 7A, the court must nevertheless allow particulars to be furnished, which includes a victim impact statement unless a court determines it would not be appropriate to do so. The government provision respects the balance between a victim's right and the necessity to deliver summary justice in a summary court. The amendment is not workable, particularly when the court system is under stress with delays and heavy caseloads.

Ms CHAPMAN: I note the schedule of amendments made by the Legislative Council. I understand, from the Attorney's contribution, that the government is rejecting the Hon. John Darley's amendment No. 1, but otherwise is accepting the balance, if I heard his presentation correctly.

My understanding was that this was coming back. I have not viewed it in any detail but, in general, we accept the position as espoused in the Legislative Council. Obviously, we do not have the numbers here to make any difference in that sense, but I indicate that, as a general principle, we support the position of the Legislative Council. We are hardly in a position to make any difference to amendment No. 1, but I note the Attorney's comments.

Motion carried.

Amendment No. 2:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendment No. 2 be agreed to.

Amendments Nos 2, 4 and 7 in the schedule form a series of amendments designed to fix an inconsistency between the provisions of the Victims of Crime Act and the Criminal Law (Sentencing) Act. Sections 32(7) and 32(8) of the Victims of Crime Act provide that a court must impose the Victims of Crime levy set for each offence, and only the Governor not the court can remit or forgive any levy or part of a levy. The levy is enforceable under the Criminal Law (Sentencing) Act.

However, section 13(1) of the Criminal Law (Sentencing) Act provides that the court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that the defendant would be unable to comply with the order or compliance with the order would unduly prejudice the welfare of dependants of the defendant. In such a case, the court may, if it thinks fit, order the payment of a lesser amount.

Section 14 provides that the court, faced with a defendant who has insufficient means to pay compensation and a fine or other pecuniary sum, must give preference to compensation. The definition of a pecuniary sum includes the Victims of Crime levy. It necessarily follows that, under the Criminal Law (Sentencing) Act that the levy is treated just like any other monetary sum.

Sections 70I and 70J of the Criminal Law (Sentencing) Act confer general powers to remit or reduce the levy if it has been imposed. This is inconsistent with the section 13 of the Victims of Crime Act. The inconsistency should be fixed. The government believes that the policy should be that the victim's levy should not be treated as just another pecuniary sum.

It is not feasible or desirable to set up an entirely separate regime just for victims' levies. A set of amendments to the bill has been drafted to make sure that the levy cannot be remitted or varied by the court of sentence, and the levy cannot be remitted or varied by a registrar. The levy can be remitted or varied by the court on review.

The act already has a test for remitting or reducing a pecuniary sum. The test is: if the court is satisfied that the debtor does not have or is not likely within a reasonable time to have the means to satisfy the pecuniary sum without the debtor or his or her dependants suffering hardship. This is an appropriate case to be applied by the court when considering remission or reduction of the Victims of Crime levy.

Ms CHAPMAN: The opposition notes the importance and retention of the Victims of Crime levy maintaining a position of priority, other than its being subject to variation or suspension in the circumstances indicated by the Attorney.

Motion carried.

Amendment No. 3:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendment No. 3 be disagreed to.

The effect of this amendment is that if any court is intending to impose a sentence that requires community service in any form, and the court is informed that the victim wants the community service to be performed for the benefit of the victim or of a kind requested by the victim, the court should do it or give reasons why not.

Further, if such an order is made, Community Corrections has to consult with the victim before issuing any directions requiring the person to perform projects or tasks. The government opposes this amendment for the same reasons as when it was proposed in the bill. The amendment seeks to make the victim the Community Corrections officer, equipped with the power of veto if he or she disagrees with what has been suggested by the department or Corrections. This is not the role the government believes victims should have in the sentencing process of offenders.

Consideration must be given to a circumstance in which an offender refuses to do community service directed by the victim. It is currently the case that the imposition of community service as a punishment is dependent upon the consent of the offender. If the offender is not prepared to do it or, for whatever reason, is prepared only to do community service that does not involve the victim, what occurs then?

The amendment fails to consider the delays that could be caused when the magistrate or judge decides to sentence an offender immediately after submissions on sentencing, as is often the case in the Magistrates Court, and it is decided that community service is to be imposed. If the victim is not present in court, must the court be adjourned and the matter held in the list to enable the prosecutor to make contact with the victim?

Another consideration is the logistics of putting this amendment into effect. The impact this may have upon Correctional Services should not be underestimated. Issues that spring to mind include: insurance problems, about various places of community service; practical problems, about not putting offenders into designated programs; and resource issues, because supervision will be scattered over so many individual programs, rather than concentrated on joint programs. So, the offender will not be part of a team any more; he will be an individual clearing out a gutter or weeding someone's front yard.

Thousands of hours of community service are ordered each year. If the department were required to consult with victims in circumstances suggested in the amendment, it would be time consuming and create delays in work being completed. In the spirit of compromise, and in an attempt to avoid another deadlock, clause 7 of the bill includes a provision that will enable victims to comment upon the sentence to be imposed by the court in their victim impact statement. This, of course, will be a choice: it is not mandatory on the victim. If the victim did elect to make a comment or suggestion for penalty, the court could take notice of that suggestion in the same fashion that it currently takes notice of the prosecutor's and defence counsel's submission.

The government believes that permitting victims to comment on sentence is an important step forward in victims' rights, but that amendment No. 3 in the schedule goes too far. One might describe it as the Saudi Arabian amendment.

Ms CHAPMAN: Well, it did not take long, did it? After all the shouting by the government as to how important it is that victims of crime be considered and recognised and participate and be consulted, here is an opportunity where they could have a direct involvement in a community service—this is incredible, after all of the wind-bagging of the Attorney out there in the public about how he cares about victims—here is a classic opportunity for the Attorney to welcome with open arms an initiative for victims of crime to have any serious say, and what does he do, he rejects it.

That really demonstrates how shallow and insincere the Attorney's comments are about victims of crime. At least he recognises that in the victim's impact statement the victim will have an opportunity to give an indication of where a certain area of community service might be able to deal with this. What the Attorney might not be aware of is that the Minister for Correctional Services is here in the parliament this afternoon to continue amendments to the Correctional Services Act.

One of the things that is being presented to the parliament right at this moment is that we abolish the committees that give advice on community service orders. We have had these committees for decades as part of the sentencing options, which, incidentally, for the last, I think, 7½ years have not actually been operational because this government does not like them. So, the government is proposing to abolish them in some legislation that we are going to be considering shortly.

It is of concern that we are now going to be left with a situation where victims might have a chance to have a say about what might be useful—we have nobody in the community having a say any more—and we have correctional services officers who are currently, and are going to be, the sole advisers to magistrates and judges as to what may be available and/or imposed. So, I thought this was quite an important initiative of the Hon. John Darley, as a real and demonstrable way of including it.

For the Attorney to say, 'Well, what happens if the victim didn't turn up? Would we have to adjourn the proceedings?' is ridiculous. What is clearly proposed here is that the victim would have an opportunity to have a say, and if he or she elected not to be there or have a say then, of course, the magistrate would proceed with the matter, but at least there would have been an opportunity for the victim to make that contribution.

Obviously, if a magistrate or judge were to say, 'Well, look, there is a recommendation that they do some gardening work when clearly the offender is 85 years of age and is hardly fit to do such work, so I'm not going to direct that, even though the victim says that this would preferable for them to do,' then they can say so. There does not seem to be any reason why they cannot do it.

In any event, I am disappointed that the government has not taken up this initiative, given all its wind-bagging about caring for victims of crime, and there is this real and demonstrable opportunity to be able to do it and they have rejected it. I am very disappointed, not that we can do much about it, given the numbers.

Motion carried.

Amendment No. 4:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendment No. 4 be agreed to.

This amendment forms part of a series of government amendments to the bill explained in amendment No. 2.

Motion carried.

Amendment No. 5:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendment No. 5 be agreed to.

In the spirit of compromise and in an attempt to ensure that this bill does not suffer the fate of its predecessor, the government supports this amendment. Upon consulting with the Commissioner for Victims' Rights, the government agrees that there is merit in reviewing the operation of section 7A as amended under the Criminal Law (Sentencing) Act and the impacts of extending the definition of prescribed summary offences. The inquiry and report into the operation of the revised form of section 7A of the Criminal Law (Sentencing) Act will allow parliament to assess the extended provision and should provide valuable information about the implications of any further extension.

Ms CHAPMAN: I note the government's acceptance of this. I simply make the point that the Attorney, in saying that he accepts this in the spirit of compromise but, on the other hand, accepts that it actually has some merit, seems to be somewhat inconsistent. However, we note the government's preparedness to accept this and the opposition does, also.

Motion carried.

Amendment No. 6:

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendment No. 6 be disagreed to.

This amendment grants the Commissioner for Victims' Rights the status of an exempt agency under the Freedom of Information Act but places unworkable and ambiguous limitations upon that exemption. The government takes the view that the commissioner's exemption should not be limited and so opposes the amendment.

Currently, a person can make an application for access to documents held by the Commissioner for Victims' Rights as the commissioner is an agency as defined under section 4 of the Freedom of Information Act. Under such an application, documents of any type are able to be accessed by an applicant, unless the document falls within the grounds for refusal set out in section 20 of the Freedom of Information Act.

Under the current provisions of the FOI Act, the commissioner could not refuse access with respect to the bulk of documents in his possession, and this has caused the Commissioner for Victims' Rights alarm enough for him to lobby for the exempt agency status under section 2 of the FOI Act. This amendment only affords exemption to the commissioner under the FOI Act for functions involving the provision of assistance to particular victims, but not functions involving the provision of assistance to victims generally, or any other functions.

Imagine the abuse of the FOI act if someone like Rob Lucas was allowed to invade the privacy of victims of crime in this state. Therefore, under this amendment, documents that relate to specific and identifiable persons who are victims of crime in the possession of the commissioner will be protected. Those that do not currently fall within the exemptions of the act will not be.

The task will, therefore, fall upon the commissioner to plough through each and every document to determine whether each constitutes an exempt document or relates to a particular victim. Much of the information held by the commissioner, I tell the member for Bragg and the Hon. Rob Lucas, is of a highly sensitive and personal nature. Victims of crime—and, indeed, the public of South Australia—need to have confidence that their interactions, communications and matters generally raised with the commissioner's office will not be released to an applicant under the FOI act. Classifying the Commissioner for Victims' Rights as an exempt agency pursuant to schedule 1 of the act is the only means by which this can be achieved.

Of most concern is that 'functions involving the provision of assistance to victims generally or any other functions will not be exempted under this amendment'. It appears the intended purpose of this distinction is to admit access to documents where victims are discussed generally as opposed to individually. Applying in practice such a distinction would undoubtedly be a difficult task, given that often practice or procedural changes in the criminal justice system arise from an individual circumstance or case. Equally, one document could contain aspects of both—that is, discussion about victims generally and a specific victim.

I think it is very difficult to establish specifically what the phrase 'provision of assistance' means. Does it relate to written correspondence or communications to a victim or does it also extend to minutes to various interested parties? Most functions performed by the Commissioner for Victims' Rights described under section 16 of the Victims of Crime Act could be considered as providing assistance in one form or another.

The amendment is not workable and creates more ambiguities than it solves. For this reason, the amendments should be opposed. Victims of crime in this state need to be protected from scandal mongers using their gratis access to FOI.

Ms CHAPMAN: We know the government's history in respect of freedom of information. We have an act which is there to ensure the reasonable access by members of the public to government and public records. We have very specific provisions in it—some would argue that overly restrict access—but one of them is to protect personal information. It is a direct obligation of the freedom of information officer who might have the supervision of the determination of any application to identify when those exemptions should apply. Obviously, personal information is one of them.

We have other restrictions in relation to cabinet documents. I remember just a few weeks ago the Premier espousing how he felt it was important that his government, which was open and accountable and transparent, was going to open up the access to cabinet documents, that his government was going to make sure that all those barriers of secrecy were going to be shed. The logical argument is that he wanted to dive into any previous government's information—that is the truth of it—but under the umbrella of being an open, accountable and transparent government. He was going to change the rules and open it all up.

Sure enough, when there is a potential embarrassment to government they want to keep restricting it. A number of different reviews are happening even at the federal level right at the moment to open up access to public documents and records and there are some legitimate reasons why some or part of those documents would not be disclosed. But here, what the government wants to do, while the Premier is out there dancing his approach to present as an open and accountable government, we have the Attorney-General in here refusing to accept a reasonable presentation. The Commissioner for Victims' Rights, as an agency, involves the provision of assistance to particular victims, and we understand why that would be protected but not functions involving the provision of assistance to victims generally or any other functions.

That is exactly what a freedom of information officer is supposed to be able to do: go through documents and if there is personal information about an employee or a record which it is determined needs to be protected, and that is reasonable, then they can issue that determination. If the applicant for that information objects to that and says that it is not reasonable, then they can ask for a review by the chief executive officer of the department that has responsibility for it. If the chief executive says no, that you cannot get that information and the applicant is still unhappy, they can go off to the Ombudsman. The Ombudsman can issue a determination about whether they think the rules have been complied with.

If the Ombudsman makes a decision that you can or cannot get it then either party can go off to the District Court. The Attorney-General would be familiar with this because right at this minute his government is appealing in the District Court against a decision of the Ombudsman where his government has been directed to produce documents in compliance with the Freedom of Information Act, and he does not want to produce them. They are all about the correspondence between the Chapley group of companies, the Glenside Hospital development and the government. But they want to keep them secret. For the first time in the history of the act, they are rushing off to the District Court to appeal against the direction by the Ombudsman. That just tells you the extent to which this government will go right here in the District Court to object to having the Ombudsman, which is that second level of assessment, being able to make a direction to disclose documents.

They will do whatever it takes, members of this house, to stop anyone getting documents that are embarrassing to them. They have decided that, in relation to the Commissioner of Victims' Rights, who sits of course in the Attorney-General's Department, who would have an advisory role on a number of issues of public significance and importance, not just the advocacy of the individual information on a particular victim, and that information of the former should be available.

This government pretends with its Premier out there that it is going to open up cabinet documents and records of the public about how open and transparent it is, and yet the Attorney comes and sits in here and tries to protect a person in his department from the same obligation as applies to every other public officer in this state to have to present the documents for adjudication by the Freedom of Information officer and go through that proper process. It is an insult to the people of South Australia.

The Hon. I.F. EVANS: I just want to make some comments in relation to this matter about FOI'ing and victims of crime because it does raise the interesting question in relation to who becomes the victim. The Attorney is aware in his role as acting minister for families and communities that I have FOI'd a series of documents in relation to the Easling matter.

The Hon. M.J. Atkinson: Fielders Steel Roofing made a donation yet?

The Hon. I.F. EVANS: The Attorney asks me whether Fielders has made a donation. I will get that on the record because what the Attorney of course is alleging, for those who are not aware, is an improper motive. What the Attorney is alleging is that Tom Easling's brother—who was employed by Fielders and now runs his own company, for the Attorney's information—has made a donation to me or the Liberal Party. Actually, through Fielders, he was a member of the Labor Party's Progressive Business Alliance and he has attended at least two fundraisers in the Premier's presence to my knowledge.

The Hon. M.J. Atkinson: Because he wanted to raise this issue.

The Hon. I.F. EVANS: No, he was a member well before this issue.

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: Well, to my knowledge. I don't see his accounts, but I do know this and I will put this on the record for the Attorney-General who of course is fearlessly independently looking at this matter with no bias, I am sure. I did say to Tom Easling's brother when I took this matter up that under no circumstances was he to make a donation to the Liberal Party or attend a function so that people like the Attorney-General could not make that allegation with any accuracy.

The Hon. M.J. Atkinson: He took display advertising in The Independent Weekly, and got the story he wanted.

The Hon. I.F. EVANS: Someone is allowed to advertise in a publication but he has made no donation and I specifically gave him instructions not to so that the allegation could not be made, so get over it.

The reason I wanted to comment about this is that this victims of crime issue is an interesting one because at what point do you become a victim of crime? I questioned the commissioner for victims the other day in a committee on this matter. I will not go into the details of the answer because the committee has not reported. The question I am raising is this: one could argue that, having been falsely accused of a crime, the person falsely accused becomes the victim, and at what point do you become a victim? I do not think the victims of crime legislation deals with this issue adequately. The reality is that I have FOI'd—

The Hon. M.J. Atkinson: So, now you are reflecting on the eight alleged victims.

The Hon. I.F. EVANS: Well, the court did not believe the testimony of the eight alleged victims.

The Hon. M.J. Atkinson: No; they didn't make a finding beyond reasonable doubt. That's different.

The Hon. I.F. EVANS: They found Mr Easling not guilty.

The Hon. M.J. Atkinson: Some of them.

The Hon. I.F. EVANS: Well, as the Attorney had to come back and apologise to the house, I am sure he is across the detail and we enjoyed the apology. Twelve verdicts were unanimous and six were majority so one or two out of the 12 believed the evidence of the claimants but the vast majority did not.

The Hon. M.J. Atkinson: Beyond reasonable doubt.

The Hon. I.F. EVANS: Attorney, go and reflect on the Hansard. I will say this to you quite openly because you are in a position to have to look at this issue without bias. There was a report by Mr Moss tabled in the house this week that reflects on the capacity to look at things without bias. If you feel that you do not have the capacity to look at that issue without bias, excuse yourself from the position on that issue.

Mr Easling, through me, has FOI'd numerous documents about allegations made in this place and, when we have sought the information, even though all of that information should have been released under subpoena to Mr Easling, the FOI process does not release it on the basis of the Child Protection Act. Then, what right Mr Easling? I will continue my remarks on another occasion.

Progress reported; committee to sit again.


At 18:00 the house adjourned until Thursday 15 October 2009 at 10:30.


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