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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-11-14 Daily Xml
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Bills

Statutes Amendment (Victim Impact Statements) Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (11:59): I move:

That this bill be now read a second time.

I am really pleased to introduce to this house the Statutes Amendment (Victim Impact Statements) Bill 2024. The bill amends the Sentencing Act 2017 and the Victims of Crime Act 2001 in response to concerns that have been raised regarding the experiences of victims during the sentencing process. Through this bill, we are rightly supporting victims and ensuring that in the really often heartbreakingly difficult journey they traverse the process is as supportive and effective as it possibly can be.

Section 10 of the Victims of Crime Act 2001 provides that a victim is entitled to have any injury, loss or damage suffered as a result of the offence considered by the sentencing court before it passes sentence. This entitlement is exercised by providing the court with a written personal statement, known as a victim impact statement.

Section 14 of the Sentencing Act gives victims of an indictable offence or a prescribed summary offence a right to provide the court with a victim impact statement. There are further provisions in section 13 of the Sentencing Act to enable victims of other offences to provide a victim impact statement unless the court determines it would not be appropriate in the circumstances of that particular case. The court may allow the victim the opportunity to read the statement aloud to the court, cause the statement to be read aloud by another person such as the prosecutor, or otherwise may consider the statement without it being read aloud.

Providing victims with an opportunity to provide a victim impact statement is a vital aspect of the criminal justice process and often of a person's healing process. We know that for victims and their loved ones, having their voices heard can have a significant therapeutic and restorative value. We know that having a chance to have your voice heard, to tell your story, to speak about your loved one can feel like a step forward, a chance to express yourself and, as I said, to take a step forward on that journey of healing.

The bill contains four amendments which aim to improve the experience of victims in the sentencing process by ensuring that they are provided with adequate opportunity to tell the court and the defendant about the impact of their offending and to do so, so importantly, in their own words. Legal words are of course an absolutely crucial and necessary part of court processes, but they alone do not give a victim a chance to tell their story nor how particular offending made them feel. In the long journeys ahead that many victims face, a journey of loss and healing, this ability to be heard, to tell your story, to speak about how particular offending made you feel, what it meant for your family, is absolutely crucial.

The first three amendments in the bill, contained in part 2 clauses 3 and 4, amend the Sentencing Act. Firstly, the bill addresses a concern raised by the former Commissioner for Victims' Rights, Bronwyn Killmier, that victims are sometimes denied that opportunity to prepare a victim impact statement, particularly where a guilty plea is unexpectedly entered and the court proceeds immediately to sentencing submissions and the imposition of a sentence.

It is understood that this concern primarily arises in the Magistrates Court, which hears the highest volume of criminal matters and where there is significant pressure to deal expeditiously with matters. The bill inserts new sections 16(1a) and 16(1b) in the Sentencing Act to ensure that victims who are entitled to provide a victim impact statement are given adequate opportunity to do so, to exercise that right.

New section 16(1a) provides that where a victim has not had that reasonable opportunity to provide a victim impact statement or has requested more time to prepare one the court must, on application by the prosecutor, adjourn sentencing proceedings to give the victim that reasonable opportunity to prepare their statement. Pursuant to new section 16(1b), the court can refuse to grant the adjournment only if satisfied that special reasons exist that justify that refusal.

Secondly, the bill responds to a concern that was raised regarding the editing of victim impact statements by prosecutors prior to them being provided to the court. It was suggested that whilst well-intentioned the practice can cause victims to perceive that they are being censored and can leave them feeling dissatisfied with the criminal justice process and, again, possibly not able to tell their story using their words drawn from their experiences.

The government considered and consulted on a recommendation made by the former Commissioner for Victims' Rights to prohibit this type of editing. However, the feedback provided by the Director of Public Prosecutions and South Australia Police suggested that editing of a victim impact statement by prosecutors is not common practice in South Australia.

Changes to a victim impact statement may on occasion be suggested by a prosecutor where it contains irrelevant material, including unproven allegations or language that is gratuitously insulting or abusive. This feedback is reflected in the DPP's prosecutorial guidelines, which make it clear that prosecutors should not edit or censor a victim impact statement in any way contrary to the wishes of the victim even where the statement includes gratuitously insulting or abusive language or information that is irrelevant to sentencing. The guidelines emphasise that it is the responsibility of prosecutors to provide reasonable assistance to victims, which might include explaining the risks of including irrelevant or abusive material, but that it is for the victim to consider what course of action, if any, they might then take.

Some concern does remain, however, that prosecutors may provide inconsistent advice to victims about the need to remove irrelevant or inflammatory content from a victim impact statement or that there may be a perceived need to suggest editing for fear that the court would refuse to receive it in its entirety. To address this remaining concern the bill inserts new section 16(1c) in the Sentencing Act which provides that a court must not refuse to receive a victim impact statement on the grounds that it includes material that is irrelevant or otherwise should not be included in the statement. The bill makes clear that nothing in section 16(1c) requires the court to have regard to any such material in determining sentence.

Thirdly, the bill contains an amendment from the Hon. Connie Bonaros MLC that remedies a gap that was exposed in the law after the mother of a victim who was killed on our roads was denied the opportunity to provide a victim impact statement to the court.

Tragically, on 19 February 2022 Jason Edwards was travelling along Brighton Road when a vehicle collided with his wheelchair and ran him over. The driver of the vehicle ultimately pleaded guilty to one count of driving without due care. The magistrate sentenced the driver on the factual basis, as agreed by the parties, that the driver's failure to drive without due care did not cause the collision.

Jason's mother, Jeanette, was present in court and was rightly prepared to read her victim impact statement. However, the magistrate found that the court was not empowered to allow a victim impact statement to be provided in the circumstances because there was no causative link between the injury and loss suffered by Jason's family and the offending before the court for determination. I imagine this was absolutely devastating for Jeanette and all who loved Jason.

The entitlement in the Sentencing Act to provide a victim impact statement only extends to those who have suffered injury, loss or damage resulting from the offending before the court. The bill inserts new section 15A in the Sentencing Act, to rightly ensure that in the future those in a tragic position similar to Jason's family are no longer denied the opportunity to have their voices heard about the impact of their loss on their lives.

The amendment will give the court a discretion to permit the loved ones of a person who has died or suffered an injury resulting in total incapacity to provide a written personal statement to the court, where that death or injury resulted from any conduct occurring in connection with the commission of the offence. The amendment further clarifies what is meant by conduct occurring in connection with an offence. However, given the statement would be provided in circumstances where the court has not accepted causation between the offending and injury, section 15A(3) clarifies that the court is not required to have regard to the statement in determining sentence.

I wholeheartedly thank the Hon. Connie Bonaros MLC for introducing this really important amendment to the bill in the other place and the family of Jason Edwards for their incredibly courageous advocacy in Jason's honour—advocacy that they took amongst utter heartbreak.

Finally, the bill contains an amendment to the Victims of Crime Act to enshrine the right of victims to be informed about their entitlement to provide a victim impact statement. Currently, section 10 of the Victims of Crime Act provides that a victim is entitled to have any injury, loss or damage suffered as a result of an offence considered by the sentencing court before it passes sentence.

Division 2 of part 2 of the Victims of Crime Act contains a declaration of principles governing the treatment of victims by public agencies and officials. This includes an express entitlement to certain information, such as information about the progress of criminal investigations, court processes, the availability of services and how to obtain compensation for harm suffered as a result of an offence.

The bill inserts new section 9C into the Victims of Crime Act, which falls within the declaration of principles in division 2 of part 2. The amendment gives victims an express entitlement to be informed about, firstly, their entitlement to provide a victim impact statement and, secondly, the manner in which the court may use the material, including the circumstances in which certain material may be disregarded by the court or not read aloud to the court.

I can indicate that the government will be moving two amendments to this bill at the committee stage. The purpose of those amendments will be to, firstly, extend the time limitation for making an initial application for statutory compensation under the Victims of Crime Act. They have been developed in response to concerns that were raised by the current Commissioner for Victims' Rights, Sarah Quick, about the impact of the existing time limitations.

Currently, the timeframe limitation for an application made by the victim of the offence is three years after the commission of the offence. An application arising from the death of a victim must be made within 12 months after the date of death. The amendment would extend the timeframe limitation for both an application from a victim, or for an application arising from the death of a victim, to five years.

Whilst the amendments do not relate to victim impact statements, given the overarching objective of this bill to improve the experience of victims of crime in our justice system, this bill is an opportune vehicle for those amendments to be progressed and, as such, the name of the bill also needs to be changed. I commend this bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

3—Insertion of section 15A

This clause inserts a new section 15A allowing a sentencing court to accept a written personal statement from a broader category of people.

4—Amendment of section 16—Statements to be provided in accordance with rules

This clause requires the court to adjourn sentencing proceedings in certain circumstances to allow a person who has suffered injury, loss or damage resulting from an indictable offence or a prescribed summary offence to prepare a victim impact statement. However, the court is not required to do so if satisfied that special reasons exist. This clause also prevents the court from refusing to receive a victim impact statement on the grounds that the statement includes irrelevant or other material and makes some consequential amendments.

Part 3—Amendment of Victims of Crime Act 2001

5—Insertion of section 9C

This clause requires that a victim be informed about their right to have any injury, loss or damage suffered as a result of an offence considered by the sentencing court before it passes sentence, and the manner in which the court may use any material provided to the court in exercise of that right.

Ms O'HANLON (Dunstan) (12:16): I, too, rise to speak on the Statutes Amendment (Victim Impact Statements) Bill 2024. As has been said, this bill makes amendments to the Sentencing Act 2017 and the Victims of Crime Act 2001 as a means of responding to the concerns raised by the Commissioner for Victims' Rights about the experiences of victims during the sentencing process. The bill has been designed mindful of the feedback given on both the draft bill and a discussion paper and has received broad support from stakeholders.

Victim impact statements give the victim of a crime the opportunity to tell the court how a crime has impacted them. The victim can speak to the injury, both physical and psychological, the loss or damage they have suffered as a result of the crime perpetrated against them. A victim impact statement can help the court understand how a crime has affected the victim and may be considered by the judge or magistrate as they determine the penalty to be given to the offender.

In my work as a mediator, I frequently witnessed the restorative value of finally just being heard. Not being heard leaves a burning frustration that not only has a perpetrator had the complete disregard or, at the very least, careless indifference for a person's humanity to inflict a crime against them in the first place, but they also then have no interest in taking responsibility for their actions and hearing how they have affected the victim, further dehumanising them.

The victim impact statement forces the perpetrator to listen or, at the very least, hear how their actions have, at a human level, impacted the victim. Even if a crime is accidental, the consequences can be no less damaging, traumatic or permanent, and the victim impact statement no less important as well, giving the victim the opportunity to place on the record the injury they have suffered as a result. The outcome is the same: the victim is heard.

This bill provides that, where a victim has not had a reasonable opportunity to provide a victim impact statement or has requested more time, the court must, on application by the prosecutor, adjourn sentencing proceedings to give the victim a reasonable opportunity to prepare their statement. Currently, a decision as to whether to adjourn sentencing proceedings is a discretionary matter for the court, with no specific factors for consideration.

It was raised by the former Commissioner for Victims' Rights that some matters can proceed to sentencing earlier than expected, risking the victim missing out on preparing a victim impact statement, particularly in the Magistrates Court, which, as we have heard, hears the highest volume of criminal matters. This change is modelled on the ACT practice.

Secondly, the bill makes clear that the court must not refuse to receive a victim impact statement on the grounds that it contains irrelevant or inflammatory material. Currently, courts have discretion as to whether to accept a victim impact statement, meaning there is a risk the court could refuse to accept a statement. While editing of victim impact statements does not appear to be a common practice, this amendment is intended to minimise the chance that editing may occur by prosecutors due to perceived issues of admissibility. The statement will be given in the victim's words, even where the statement is perceived as insulting or abusive or contains information that is irrelevant to sentencing; however, any such material cannot be taken into consideration for sentencing purposes.

Finally, the bill amends the Victims of Crime Act 2001 to give victims an express right to be informed about their entitlement to provide a victim impact statement and about the manner in which the court may use the statement, including the circumstances in which certain material may be disregarded or not read aloud to the court. This change focuses on keeping the victim informed about how a victim impact statement may be used.

As has been heard, the Hon. Connie Bonaros MLC lodged an amendment in the other place that will provide the court with discretion to permit the family of the person killed or suffering total incapacity to provide a victim impact statement where that death or incapacity occurred as a result of conduct occurring in connection with the charged offence. The government supported that amendment.

Currently, the entitlement to provide a victim impact statement only extends to those who have actually suffered injury, loss or damage resulting from the particular offending before the court. The government amendment is the result of a change recommended by the Commissioner for Victims' Rights in relation to current limitation periods for certain statutory claims under the Victims of Crime Act 2001.

Currently, the timeframe limitation for an application made by the victim of the offence is three years after the commission of the offence. An application arising from the death of the victim must be made within 12 months after the date of death. The amendment would extend the timeframe limitation for both an application of a victim, or for an application arising from the death of a victim, to five years. However, it is important to note that claims arising from child abuse and certain other forms of abuse are not subject to any limitation period. As this change does not relate to victim impact statements, the name of the bill consequently needs to be changed to Statutes Amendment (Victims of Crime) Bill 2024.

On a personal note, I would like to add that the primary person who committed crimes against me is no longer alive and so I will never have the opportunity to see them charged or to deliver a victim impact statement. But I think because of this I have a very strong sense of the restorative effect of having the opportunity to face your perpetrator and be heard.

I would like to thank the minister for his ceaseless advocacy for victims of crime, for justice and for creating a safer community. I also want to acknowledge the importance of the contributions made by stakeholders and the former Commissioner for Victims' Rights. This is yet another example of the deliberative, collaborative and thorough way in which this Malinauskas Labor government operates, something I know the members of my community of Dunstan value. I am pleased to support this bill and commend it to the house.

Mr BROWN (Florey) (12:22): It is a privilege to have the opportunity to speak in support of the Statutes Amendment (Victim Impact Statements) Bill 2024. The experience of being a victim of crime can often create long-term impacts upon an individual's life. Every person may be affected differently by their experiences, but it is fair to say, especially where the crime is violent or is serious in nature, that the majority of people who become victims of crime are likely to be affected in a significant and enduring way.

Impacts may manifest in a range of different ways and across different areas of individual experience. People who are affected by crime may experience emotional responses, such as feelings of anger, of sadness or of fear and anxiety. They may experience feelings of grief or loss, or feelings of shame and guilt. They may experience a loss of self-esteem and self-worth. They may even experience a range of physiological responses to the stress and the stress associated with the experience of being a victim of crime or of being affected by a crime.

All of these impacts can be experienced together or they can be experienced at different stages in the following days, months and years. The journey of recovery and healing can be long. Indeed, for some people, the impacts associated with becoming a victim of crime or of being impacted by a crime may be permanently life altering.

The principle that underlies the purpose of the Statutes Amendment (Victim Impact Statements) Bill 2024 relates to the fact that victim impact statements offer an opportunity for persons who have become a victim of crime, or who have been impacted by crime, to provide the sentencing court with a personal statement about the nature and extent of the impact on their lives. They may speak of the injury, the loss or the damage they have suffered. They can explain how the crime has affected them physically, emotionally, socially or financially, or all of these together.

Victim impact statements give people a chance to talk about their individual experience, experience that we cannot ourselves assume or imagine until we hear from the person who has been impacted. Every person's experience will be unique. The notion that underlies the victim impact statement is that a person impacted by being a victim of crime should have the opportunity to make representation about that unique experience to the court.

Importantly, the intent of the victim impact statement is not to provide the person making the statement with an opportunity to vilify the offender; it is about giving a person impacted by a crime the opportunity to feel heard and the opportunity to have their unique and individual experience acknowledged and recognised. Providing a victim impact statement has the potential to offer meaningful, restorative and therapeutic value for victims as part of their process of psychological and emotional healing and recovery.

Victim impact statements do not replace court testimony. They serve the purpose of giving victims a sense of agency and involvement in the proceedings. It is unfortunately the case that victims can sometimes feel like outsiders in the judicial process, and a victim impact statement offers an avenue of engagement that enables victims of crime and persons affected by crime to make a contribution to the proceedings. What this bill seeks to ensure is that they are not, through the circumstances of a particular matter, denied the opportunity to do so. It can be the case, under current arrangements, that victims may miss out on the opportunity to present victim impact statements in the event that matters proceed to sentencing earlier than anticipated.

This bill and the conversation surrounding it have been significantly influenced by the advocacy of a particular family, that of Mr Jason Edwards, a man whose life was taken in early 2022 by a vehicle exiting a service station on Brighton Road in our southern suburbs. Court documents indicated that Jason had fallen out of his wheelchair and onto the road as the vehicle approached, and he was subsequently hit. Jason later died of his injuries. The court found that the 27-year-old driver of the vehicle had failed to look left as she entered the road and therefore failed to see Jason. The driver pleaded guilty to driving without due care and was convicted.

At sentencing in the Christies Beach Magistrates Court in February this year, Jason's mother, Jan Edwards, was in attendance and had her victim impact statement with her, ready to present. However, she was not granted the opportunity to read it out or to have it read out on her behalf. The magistrate gave reasons, of which I offer an excerpt. The magistrate said:

I acknowledge that the family of Mr Jason Edwards has suffered an immeasurable loss and that it would assist them to read statements in court.

However, the Sentencing Act prescribes the circumstances in which the court has a discretion to allow Victim Impact Statements to either be submitted to the court or read in court by the victim or another person.

I find that the discretion to allow that to occur does not arise because, as submitted by defence counsel, there is no causative link between the injury and loss suffered by the victims and the offending that is before the court for determination.

So, while I appreciate it may be difficult for the family of Mr Edwards to hear, it is my understanding, as I have said, that the discretion to allow the Victim Impact Statements to be read does not arise and, therefore, the request by prosecution is declined.

It is the view of this government that the voice of a victim deserves and merits a place in the judicial process. The Statutes Amendment (Victim Impact Statements) Bill 2024 proposes amendments to the Sentencing Act 2017 and the Victims of Crime Act 2001. The intention of these amendments is to address concerns that have been put forward not only but particularly by the former Commissioner for Victims' Rights Bronwyn Killmier in relation to the experiences of victims of crime during the sentencing process.

The bill aims to strengthen and to expand the right of victims to have their victim impact statements heard and considered. First, the bill provides that, where a victim has not had a reasonable opportunity to provide a victim impact statement or has requested more time to prepare it, on application by the prosecutor the court must adjourn sentencing proceedings to provide the individual a reasonable opportunity to prepare and provide their statement.

Under current provisions, the decision in relation to when to adjourn sentencing proceedings is at the discretion of the court. There are no specific factors that must be taken into consideration. The change proposed in this bill is modelled after provisions that are in place in the ACT.

Under existing arrangements, it is also the case that courts may exercise discretion in relation to accepting a victim impact statement. The bill provides that the court may not refuse to receive a victim impact statement on the basis of concerns around its inclusion of material that is irrelevant or inflammatory. The editing of victim impact statements is not understood to be a common practice; however, this bill aims to prevent the circumstance that prosecutors may perceive a need to edit statements due to concerns around admissibility or around material that is of an inflammatory or irrelevant nature.

Irrelevant or inflammatory material cannot be taken into consideration for sentencing purposes. That is the case under current provisions, and it will remain the case under the proposed arrangements. But victims of crime deserve to have the opportunity to be heard authentically. That is what this bill seeks to enable to happen on a consistent basis.

Finally, the bill proposes to amend the Victims of Crime Act 2001 to enshrine the right of victims to be informed in relation to their entitlement to provide a victim impact statement, as well as about the ways in which the court may use the statement.

The reforms contained in this bill were subject to two stages of consultation: firstly, with a discussion paper, and secondly, on the draft bill. The version of the bill we now consider has been shaped by the feedback that arose out of those processes. I commend those who have engaged with that process and whose input has helped to inform the bill that is before the house. Through these reforms, the Malinauskas Labor government continues its efforts to put victims and justice at the heart of our response to crime.

It is the government's view that this bill strikes an appropriate balance between ensuring that matters before the court can be dealt with in an expeditious manner and ensuring that victims can access fair and reasonable opportunities to participate in the judicial process. With the provisions of this bill, we aim to strengthen and protect the opportunity for victim impact statements to be given, and in so doing we can ensure that they are able to play their important role in facilitating healing and recovery for those who have been impacted by crime. I am pleased to commend the bill to the house.

Ms HOOD (Adelaide) (12:30): I, too, rise in support of the Statutes Amendment (Victim Impact Statements) Bill 2024. I cannot imagine the difficult circumstances that an individual or a family must have gone through that lead them to giving a victim impact statement. To be in that position means you have experienced great trauma, pain, suffering or grief, and in so many cases you would not wish it on your worst enemy.

Despite how difficult it must be for these individuals, victim impact statements serve an incredibly important purpose. They give victims of crime the opportunity to provide the sentencing court with a personal statement about the impact of injury, loss or damage suffered by them as a result of certain offences. Importantly, victim impact statements may be considered by the court when determining the sentence for an offence and often have restorative and therapeutic value for victims.

This bill makes amendments to the Sentencing Act 2017 and the Victims of Crime Act 2001 in response to concerns that have been raised regarding the experiences of victims during the sentencing process, particularly by the former Commissioner for Victims' Rights. I understand the bill has largely been shaped by feedback received during two stages of consultation: a discussion paper and then the draft bill, and I thank everybody who has engaged in this process.

Firstly, I am extremely pleased that this bill seeks to provide victims with reasonable opportunity to prepare a victim impact statement. Where a victim has not had a reasonable opportunity to provide a victim impact statement or has requested more time, the court must, on application by the prosecutor, adjourn sentencing proceedings to give the victim a reasonable opportunity to prepare their statement.

This reform is in response to concerns, as I previously mentioned, raised by the former Commissioner for Victims' Rights that victims can miss out on preparing a victim impact statement as matters can proceed to sentencing earlier than expected, particularly in the Magistrates Court, which hears the highest volume of criminal matters.

Ensuring victims' voices are heard is crucial, particularly given a victim impact statement may be considered by the court when determining sentencing. This speaks to the second point of the bill. Currently courts have a discretion whether to accept a victim impact statement, so there is a risk that courts could refuse to accept a certain statement. Again, I strongly believe a victim's voice must be heard regardless of whether it contains irrelevant or inflammatory material. The bill clarifies that the court must not refuse to receive a victim impact statement on these grounds.

While editing a victim impact statement does not appear to be a common practice, this amendment is intended to minimise the chance that editing may occur by prosecutors due to perceived issues of admissibility. On 9 August last year, the DPP also updated its prosecutorial guidelines relating to victim impact statements. The updated guidelines make clear that prosecutors should not edit or censor a victim impact statement in any way contrary to the wishes of the victim, even where the statement includes gratuitously insulting or abusive language or information that is irrelevant to sentencing.

Finally, the bill amends the Victims of Crime Act to give victims an express right to be informed about their entitlement to provide a victim impact statement. It also informs them about the manner in which the court may use the statement, including the circumstances in which certain material may be disregarded or not read aloud by the court. This change focuses on expectation management of victims around potential editing and how a victim impact statement may be used.

I also acknowledge the Hon. Connie Bonaros MLC in the other place who lodged an amendment in the Legislative Council which passed with the support of the government. The amendment would provide the court with discretion to permit the family of a person killed or suffering total incapacity to provide a victim impact statement where that death or incapacity occurred as a result of conduct occurring in connection with the charged offence. Currently, the entitlement to provide a victim impact statement only extends to those who have suffered injury, loss or damage resulting from the offending before the court.

Once again, this all leads to the fact that victims' voices can be heard. I would like to acknowledge the efforts of the Attorney-General, the Hon. Kyam Maher MLC, in the other place, along with his staff and his department for their work on these reforms. I commend the bill to the house.

Mr TEAGUE (Heysen) (12:34): I rise to indicate I am the lead speaker for the opposition and indicate the opposition's support for the bill. I will commend it to the house. It is perhaps an opportunity to remind ourselves that the history of the role of victims in the justice system is a really quite recent one in many ways, and South Australia has a leading exemplar role in this regard.

Just to place it in terms of the context of history, when South Australia introduced victims of crime victim impact statements in 1985, it was the first jurisdiction to do so in the country, and that was the case then for many years thereafter. Victim impact statements are now applied in different ways throughout the country and around the world in lots of jurisdictions.

The role of victims in the justice system, however, is one that occupies considerable thought and that goes back decades, even back very much to the origins of concepts of rights—really, all the way back to the Magna Carta in some ways, as Michael O'Connell has written carefully about in the course of his consideration of the history of victims and their rights and their participation in the prosecutorial process.

I take the opportunity to thank the three victims of crime commissioners that South Australia has had over the history. Michael O'Connell, of course, was the first Commissioner for Victims' Rights anywhere when he was first appointed. He was in that role for a very long time and, as I say, has been a scholar in this area and continues to be. I acknowledge him and his contribution, as I do the immediate past Commissioner for Victims' Rights, Bronwyn Killmier. She is also a towering advocate and contributed to the capacity for the support of victims, including in relation to the opportunity to provide victim impact statements but then across the board in terms of their participation in the criminal justice process. Her contribution has been extraordinary over a lifetime of service. The current Commissioner for Victims' Rights is Sarah Quick.

I acknowledge them all, relevantly, because this bill has had a gestation period of time and it has had the support and input of both Bronwyn Killmier, the immediate past commissioner, and Sarah Quick, the current commissioner. They are both in support of the bill.

Just providing some broader context, I commend Michael O'Connell's contribution to Crime, victims and policy. His chapter 10 contribution to that text spells out the modern history of engagement activism on behalf of victims over the decades. Having signalled those reforms in the early to mid eighties in South Australia that led the way, it might be instructive to reflect that in terms of the decades broadly it is fair to characterise victim advocacy in the sixties as being globally focused on compensation schemes, the advent of state compensation processes for victims of crime.

That then became, in the 1970s, broadly, a movement-based approach to support for victims, and we have seen that now really being amplified through the decades. We recently mourned the loss of Helen Oxenham, whose first studies in women's studies, then practical work in terms of provision of women's shelters, and so on, were very much in line with the broadly predominant focus of advocacy and work for victims that characterised the 1970s, that movement-based approach. I will just refer briefly to what Michael O'Connell had to say about that. I quote:

Insofar as victimology is also said to be a social movement, it received its impetus from the women's movement in the 1970s that was spurred on by the civil rights movement in the 1960s. The former began to draw attention to the unenviable and essentially powerless position of victims of sexual crimes and domestic violence in particular…They exerted pressure on governments that resulted in the establishment of crisis centres for victims of rape and other sexual assault and shelters or refuges for women escaping domestic violence.

In South Australia in the mid-1970s, for instance, a rape and sexual assault service was set up in a public hospital, a women's shelter was opened and a Crisis Care Service was open 24 hours a day and 7 days a week, which was funded to, among other functions, assist police attending domestic violence incidents…

So you see there what we recognise now in so much of the work that is ongoing in terms of work against violence and in support of victims. As Michael O'Connell has described, that very much also characterised the debate around victims and support for victims in the 1970s.

We then moved to the 1980s and what Michael O'Connell describes as a reintegration of victims in the justice system. In this regard, it is a view I share, the work at that stage then really began to turn its focus thoughtfully to what a majority of victims sought, which was assistance to receive support with their role in the criminal justice process, including assistance in preparing for court and, as Michael O'Connell describes, help with understanding the court process in particular. Many of these victims had no experience with the criminal justice system, so they wanted information on their role and responsibilities; and so, to that, what Michael O'Connell describes as reintegrating victims into the justice system.

I recognise the work of the Tonkin government. In the course of that parliament, in 1981, the committee of inquiry into victims of crime in South Australia led the way in terms of what were 67 recommendations about reforms comprehensively to reintegrate victims into the justice system. As I said, that led to what remained groundbreaking leadership in South Australia, led by then Attorney-General Chris Sumner, who was recognised for that groundbreaking work, going on 20 years later.

It has been referred to in the course of the debate about what purpose and role victim impact statements have. It is important to observe that there is an ongoing debate, and there needs to be carefulness, about what in fact the purpose of the victim impact statement is.

The amendments that are the subject particularly of clause 4 and the new subsection (1c) of section 16 are a point at which it is convenient to be clear about this. The amendment will permit the provision of a statement that includes material that is irrelevant or otherwise should not be included in a statement, and the heading of the section is changed accordingly from one that requires a statement to be in accordance with the rules to be saying that it is a statement that the victim can make, and it will be received regardless of whether or not it contains such irrelevant material.

The focus in the debate might be on material that is said to be inflammatory or scandalous or otherwise reflecting a victim's view of the circumstances, whatever they might be. It is important to zero in on what is also not relevant for the purposes of a victim impact statement, and that is broadly—and with a few exceptions—an opinion as to sentence. That is actually a freeing aspect so far as victims are concerned.

Victims are not cast in the role of decision-maker, they are not bearing a burden of having to somehow be part of that determinative process. There are jurisdictions in the US, for example, where victims are invited to include in their response some indication of a view about sentence. That, in my opinion, remains wholly outside the scope and purpose of a victim impact statement. It is, with very few exceptions, unhelpful for the court process and the determination of sentence, which must remain one of the court applying the court process to the particular circumstances.

In this regard, I refer with appreciation, in the course of that broader history, to the contribution to the Australian Institute of Criminology's Trends and Issues in Crime and Criminal Justice No. 33 on victim impact statements by Edna Erez. That was written back in 1991 expressing the then broadly open debate about the application of victim impact statements at a time when South Australia was effectively six years into leading the way, and there were still very much expressions of concern about whether or not they had a role in the justice system.

The author there makes clear one of those aspects that has remained true throughout, and that is that the implementation of victim impact statements does not transform sentencing to a three-way contest. The input might be described as an additional factor for the judge to consider in a sentencing disposition, but it should not be confused with that proper role of the court.

To cite just one more reference, the paper 'Victim impact statements and sentencing' by Associate Professor Sam Garkawe when referring to this question of the issue of victims' opinions cites the practice direction that accompanied the introduction of the UK Victim Personal Statement Scheme, as follows:

The opinions of the victim or the victim's close relatives as to what the sentence should be are…not relevant, unlike the consequences of the offence upon them. Victims should be advised of this. If despite the advice, opinions as to sentence are included in a statement, the court should pay no attention to them.

That is that observation. With very few exceptions there will be occasion where there are particular reasons why the court might pay them due, and I know that is more likely to occur in terms of scholarly consideration of this in circumstances where there is a statement of the victim explaining the circumstances why there should be a more merciful, lenient sentence in particular circumstances. However, it cuts both ways.

To cite that particular reference further, when considering a victim's view about a sentence the other way, I will just quote this observation:

Forgiveness has no place in an independent and impartial legal system; offenders should be judged on the basis of the crime they have committed by reference to predetermined legal standards, and not have their fate left to the chance factor of the particular feelings of their victims.

It is important, as the bill insofar as the amendment relates to it at (1c) is concerned, to be clear what victim impact statements are for and what they are not for. Insofar as the bill provides for practical measures that will facilitate the making of the statement, there are several that are straightforward, both in terms of adjournment of proceedings and extension of time for these to be possible.

There is ultimately a balancing act about the administration of justice. We know there are all sorts of reasons why justice delayed is justice denied. That applies to everybody, so of course it is in the interests of justice that matters are progressed and concluded as efficiently as they can be. These provisions, in the interests of ensuring victims have that capacity to participate in that way, are sensible and are supported.

In terms of a conclusion, I emphasise that observation of Michael O'Connell that in many ways the primary concern of many victims will be that there are ways in which victims can understand the process of prosecution, the process before the courts, and not be left, as it were, perplexed by the judicial process much less re-victimised by that process. It is important to continue to understand the proper role and function of the court and to look, in a thoroughgoing way, at what will, in fact, assist victims in terms of both that aspect of restorative justice and also their own confidence that the court process is being undertaken properly and in a way they are entitled to understand.

I have one final observation, but from those who are remaining frustrated about what they might see as the inadequacy of the criminal justice system in terms of providing justice to victims. There are many who will say that while we retain an adversarial process, then there is some fundamental constraint on the role of victims in the process; and there are those who argue that until we move to an inquisitorial process of criminal justice or a process that is based upon restorative justice, then there are real limits on what can be achieved.

We retain an adversarial system of criminal justice that is an important part of our heritage. Considerations of reform, therefore, in this regard can go very deep and very fundamental. We have, however, for the time being, now 40 years of history of leadership when it comes to the provision of victim impact statements in South Australia. This is a discrete but continuing step in that regard. As I say, it is supported. I commend the bill and look forward to its passage through the house.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:55): I will make my remarks very brief. I would just like to say thank you very much to the Attorney-General in the other place, his staff and the staff of the department for their work on this bill, and also to again thank the commissioners for their crucial insight into what could help the victims of particular offending to feel that their voices are heard and that their stories are told in a way that helps them to begin or to continue through that journey of healing.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.A. HILDYARD: I move:

Amendment No 1 [DeputyPremier–1]—

Page 2, line 4—Delete 'Victim Impact Statements' and substitute 'Victims of Crime'

Amendment carried; clause as amended passed.

Clauses 2 to 5 passed.

New clause 6.

The Hon. K.A. HILDYARD: I move:

Amendment No 2 [DeputyPremier–1]—

Page 4, after line 12—Insert:

6—Amendment of section 18—Application for compensation

(1) Section 18(2)(a)—delete '3 years' and substitute '5 years'

(2) Section 18(2)(b)—delete '12 months' and substitute '5 years'

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:59 to 14:00.

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