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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

The Hon. S.G. WADE: My first question relates to new subsection (3). Does the government's bill anticipate that the representative needs to be authorised? There is a series of people who are able to be appropriate representatives, but I am just wondering how they get to be identified as an 'appropriate representative'.

The Hon. P. HOLLOWAY: Is that subsection (5)?

The Hon. S.G. WADE: The term 'appropriate representative' appears in new subsection (3)(a).

The Hon. P. Holloway interjecting:

The Hon. S.G. WADE: Yes, that's right. New subsection (3)(a) is the first reference to them, so it does link to subsection (5).

The Hon. P. HOLLOWAY: My advice is that, under the current law, a victim can read his or her victim impact statement, or the court can cause someone else to read that statement. What is being sought to achieve here is that the person who would read out that statement, in the event that the victim did not wish to do it, would be acceptable or appropriate to both the court and to the victim.

The Hon. S.G. WADE: The opposition fully supports that intent. We are wondering how that would be achieved, and we are particularly interested in considering what would happen in the event of a disagreement.

The Hon. P. HOLLOWAY: Ultimately, the power would inevitably lie with the court. However, before that, there would obviously be a process of consultation with the victim. The victim presumably would have an absolute right to read their own statement, but clearly there needs to be some proviso that someone inappropriate would not be chosen by the victim to undertake that task, but one would hope that, in the event that the victim did not want to read their own victim impact statement, they would come up with somebody appropriate as far as the court was concerned. One would hope that the chances of dispute would be low, but ultimately the court has to be in control of what happens in the court.

The Hon. S.G. WADE: I agree with the minister that the occurrence of disagreement might not be large in number, but I am concerned that it may be nonetheless significant. I am particularly thinking of people with a disability. We are talking of people who have experienced significant harm. Victims of crime can often suffer acquired brain injury and the like, which may impair their cognitive and communication skills, and it may be difficult for them to indicate their views to an appropriate representative. In that context I am concerned to make sure that the will of the victim is heard in the court and not the will of other interested parties.

To use an example, the section refers to an appropriate representative, including a relative of the person. If the victim has been involved in an activity which the relative did not approve of, they may well give voice to views in the court that may not be shared by the victim. I have a concern about the lack of actual authorisation within the appropriate representative provisions. In that context, I ask the minister whether a general or standing authority, such as a medical power of attorney, would suffice to ensure that the person nominated by the victim for those purposes would be accepted by the court as an appropriate representative.

The Hon. P. HOLLOWAY: My advice is that section 10 indicates the constraints on what may be discussed in a victim impact statement, so clearly anyone chosen to stand up in court must comply with those requirements in terms of what is discussed before the court case. The purpose is not that this should be used to advance some broader agenda but, rather, it is to be confined to how the victim has been impacted on by the alleged crime. That is really where any constraint on that would be. Clearly, the victim can make their own statement, but this is not meant to be used as a forum for running what you might describe as political agendas. Rather, it is for a person to inform the court of how the victim has been impacted upon. The clause provides:

appropriate representative, in relation to a person, means any of the following:

(a) an officer of the court;

(b) the Commissioner for Victims' Rights or a person acting on behalf of the Commissioner for Victims' Rights;

(c) an officer or employee of an organisation whose functions consist of, or include, the provision of support or services to victims of crime;

(d) a relative of the person;

(e) another person who, in the opinion of the Commissioner for Victims' Rights, would be suitable to act as an appropriate representative.

So there is a fairly wide range of people to whom this clause would apply. As I said, the victim can read their own statement or choose one of those people but, ultimately, if someone was following some other broader agenda, the court would have the capacity to veto (I suppose that is the word), the court being used in that way.

The Hon. S.G. WADE: We would not characterise it as a veto. We think it is appropriate that officers of the court manage the court. The minister referred to section 10. If he is referring to section 10 of the act, that does not relate to victim impact statements. Can he clarify where the content of the victim impact statement is constrained?

The Hon. P. HOLLOWAY: I am referring to the Criminal Law (Sentencing) Act 1988, Division 2—General sentencing powers, clause 10—Matters to be considered by sentencing court. It provides:

(1) A court, in determining sentence...should have regard to such of the following matters as are relevant and known to the court.

Paragraphs (a) to (o) define those various matters that the court should have regard to. New section 7C provides:

(1) A statement to be furnished to a court under section 7A or 7B must comply with and be furnished in accordance with rules of court.

So, if we are looking at the sentencing bill, new section 7C provides the statements to be provided in accordance with the rules, but the rules are as contained in the Criminal Law (Sentencing) Act. So, in effect, the two complement one another.

The Hon. S.G. WADE: Is the minister suggesting that under section 10 the matters which a court can consider in determining a sentence are delineated and therefore a victim would be breaking the rules of court if he or she made a victim impact statement that went beyond those matters? Or, is the minister suggesting that under new section 7C the rules of court are referenced and the rules of court separately provide that the victim impact statement is limited? I cannot see anything in section 10 which says that the victim impact statements are to be limited, and I cannot see anything in new section 7C that refers us to section 10.

The Hon. P. HOLLOWAY: Section 10 provides:

(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court;...

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

The key part is 'matters as are relevant and known to the court'. I think that is where the victim impact statement comes in and, obviously, it draws the court's attention to the personal circumstances of the victim and any injury, loss or damage resulting from the offence. Where they are relevant, the court in determining sentence is required to have regard to those matters. It is probably that phrase 'as are relevant' that is the key phrase in section 10.

The Hon. S.G. WADE: Our primary concern focuses on the identification of an appropriate person. Considering the minister's last comment, I would not think that section 10(1)(d) limits in any way a victim's right to make an irrelevant statement. It just gives the judge the authority to ignore them.

The Hon. P. HOLLOWAY: That is correct, but I do not think any of us would want the court's time to be wasted, either. It is difficult enough getting cases before the court. Clearly, it is important that victims should have their issues heard but, at the same time, it is important that court proceedings also be relevant and effective, as well. I guess that is all the government is seeking to achieve with its amendment to the bill in requiring 'appropriate persons'.

The Hon. S.G. WADE: That might have been a slight diversion but I return to where the road forked, as I understand it. The minister was responding to my concern that an appropriate representative might well present views to the court which are not the views of the victim. The minister was suggesting that if an appropriate representative was making broader comments—and he characterised them as political; I am not using that in a pejorative sense but, if you like, beyond the context of the immediate offence—that would be inappropriate; and that is where we started talking about the limits of a victim impact statement. I ask the minister to consider the possibility that the matters might be directly relevant to the offence and not of a general nature at all.

Let us say that a victim has acquired a brain injury as a result of hoon-driving behaviour. The victim might still have a strong bond with the accused and might not want to condemn his or her behaviour in the court. A relative might have a very strong view about the behaviour of the driver, quite contrary to that of the victim. I am particularly concerned that the rights of victims who have communication or cognitive impairment are not ignored in the application of this bill.

The Hon. P. HOLLOWAY: I am not sure how their rights would necessarily be impaired. If that person can indicate who they require to give a victim impact statement, providing that complies with the bill—and the Commissioner for Victims' Rights would determine it—that should not be an issue in the case the honourable member is raising. Obviously, if a person has brain damage it will be more difficult to determine their wishes than in most other circumstances which might come before a court.

The Hon. S.G. WADE: It may be a matter the government will want to consider in the future. Section 7A refers to the mode of communication of the victim impact statement to the court. I understand that it specifically refers to audio or audiovisual records, and I seek advice regarding whether that statement includes other forms of communication devices used by people with a disability, such as a synthesised voice or sign language.

The Hon. P. HOLLOWAY: My advice is that a person in such a case would not be impeded in informing the court using such methods.

The Hon. S.G. WADE: In section 7A(5) we go to the range of people and officers who could be an appropriate representative. In subsection (5)(c) it refers to 'an organisation whose functions consist of, or include, the provision of support for services to victims of crime.' Is there a commonly used register or list of such organisations?

The Hon. P. HOLLOWAY: I am advised that there is a list of services included in a booklet given to victims of crime, by police, when they report it.

The Hon. S.G. WADE: Do the organisations referred to by the minister include those such as the Public Advocate, the Public Trustee or the Guardianship Board?

The Hon. P. HOLLOWAY: My advice is that the booklet only contains those peak organisations that were identified through the ministerial advisory committee and those in consultation with victims of crime. We do not believe the three organisations read out by the honourable member would be included because they are not the peak organisations.

The Hon. S.G. WADE: So, would the minister's understanding of the impact of the bill mean that such organisations would not be within paragraph (c) but might well come under paragraph (e) where the Commissioner can identify them as being appropriate?

The Hon. P. HOLLOWAY: Yes, that is the case.

The Hon. S.G. WADE: Moving on to paragraph (d), regarding the relative of a person, is a relative of a person who receives the direct consequences of crime regarded as a victim in their own right?

The Hon. P. HOLLOWAY: My advice is that that could be the case.

The Hon. S.G. WADE: Again, in passing I would like to mention that we need to be careful, particularly in relation to a victim, that someone is not speaking for them without their authority. I know that paragraph (5)(d) of the act refers simply to a relative of the person, but the second reading explanation referred to the relative as a close relative, so I would like to clarify what is intended by paragraph (5)(d). What does 'close' mean? Is it a legally defined term, or the like? I seek your advice on that.

The Hon. P. HOLLOWAY: It is incorporated into the act really to manage the situation of someone who has an extra large family. It is just a matter of trying to put some reasonable interpretation on it, but I am advised that 'close' is not legally defined.

The Hon. S.G. WADE: Is it possible, under these provisions, for there to be more than one appropriate representative and more than one victim impact statement offered?

The Hon. P. HOLLOWAY: Yes.

The Hon. S.G. WADE: My reading of the definition of 'prescribed summary offence' is that it is the act that is prescribed and not the offence.

The Hon. P. HOLLOWAY: I think it would be more correct to say that it is a consequence of the offence.

The Hon. S.G. WADE: In terms of the definition of 'total incapacity', what is meant by the term 'independent function'? Where does the term come from and who will assess independent function?

The Hon. P. HOLLOWAY: My advice is that it was taken from the Criminal Law Consolidation Act, so that is sufficient information.

The Hon. S.G. WADE: Thank you, minister.

The Hon. J.A. DARLEY: I move:

Page 4, lines 24 to 28—

Clause 6(7), inserted subsection (5)—Delete the definitions of prescribed summary offence and total incapacity and substitute:

prescribed summary offence means a summary offence that has caused the death of or serious harm to a person;

serious harm means—

(a) harm that endangers, or is likely to endanger, a person's life; or

(b) harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

(c) harm that consists of, or is likely to result in, serious disfigurement.

The difference between the amendment and the clause proposed by the government is that it provides a wider definition of a prescribed summary offence. Whereas both definitions provide for cases where death has occurred, the government's definition of 'total incapacity' is much narrower than that given to 'serious harm'.

This narrow definition could potentially lead to terrible injustice for victims and, in cases where death has not occurred, limiting the clause to victims who are permanently physically or mentally incapable of independent function simply does not go far enough. I ask the question: what does independent function mean? For example, you could be a quadriplegic and still be capable of independent function. You could suffer from a withered arm and take pain medication, or even have amputated limbs and still be capable of independent function.

Somebody may have suffered enormous trauma which resulted in mental impairment or serious disfigurement as a result of an industrial accident, or perhaps even fallen into a coma for a prolonged period of time which seriously endangered their life or left them with a physical impairment. These cases would not be caught by the government's definition of a prescribed summary offence, unless the victim was permanently incapable of independent function. In these cases the victim may not end up permanently physically or mentally incapable of independent function but they have, nevertheless, suffered serious injury which warrants some sense of restitution.

Members may recall that, in May 2006, former MLC the Hon. Nick Xenophon proposed similar provisions be incorporated into the Criminal Law (Sentencing) Act. The case that prompted the Hon. Nick Xenophon to introduce that bill involved the death of Lee Charles McIntyre. Mr McIntyre died as the result of a motor vehicle accident in November 2004. In that case, the man in question was charged with the offence of driving without due care, and the police and prosecution service did not decide to proceed with the more serious offence of driving in a manner dangerous.

I might add that, as recently as yesterday, a similar event occurred in the Murray Bridge court. The defendant in the McIntyre case (Benjamin Staveley) was not required to attend any court hearings, and he pleaded through his lawyer. The family of Mr McIntyre were not afforded the opportunity of facing the defendant or reading their victim impact statements in court.

While the government indicated at the time that it would be introducing reforms of its own, other members of the Legislative Council supported the provisions introduced by former MLC the Hon. Nick Xenophon, and the bill passed this place. I would urge honourable members to support this amendment. Even where there is no prospect of a custodial sentence, it is important in terms of giving some sense of restitution to the victims and their families.

The Hon. P. HOLLOWAY: The government bill extends all general rights to make a victim impact statement that exists now only for indictable offences to what the bill calls 'prescribed summary offences'. In the government bill these will be confined to any summary offence that results in the death of the victim or that causes total incapacity. Total incapacity is defined as 'permanently physically or mentally incapable of independent function'. This is then a limited exception to the indictable rule.

It is limited because the superior courts may have the luxury of time to allow these extended rights, but summary courts do not. The practical exigencies of the business of the Magistrates Court and the need to deal with the list in an expedient manner mean that business cannot be interrupted or delayed, except with great disruption to the summary dispensation of justice. This is what summary courts are for—to be summary.

The practical reason for the election policy, which the bill proposes to fulfil, is that sometimes the defendant will plead down to a summary offence where there has been an outstanding charge of causing death by dangerous driving or something similar. There are not many of these, and the exception can be justified on balance to the harm caused and the practical delivery of speedy justice.

The Hon. Mr Darley proposes to amend the exception to all cases where the victim has suffered serious injury or what used to be called in the old language 'grievous bodily harm'. The result of this will be that the full panoply of the victim impact statement process will be applicable in any case where the offence has resulted in (a) harm that endangers or is likely to endanger a person's life; (b) harm that consists of, or is likely to result in, loss of or serious and protracted impairment to a part of the body or a physical or mental function; or (c) harm that consists of, or is likely to result in, serious disfigurement.

This amendment should be opposed. It does not respect the balance between, on the one hand, extreme danger to a victim who happens to have turned up in the Magistrates Court and, on the other hand, the necessity for the delivery of summary justice in a summary court. There will be many of these cases. The Office of Crime Statistics has provided a table. There will be between 100 and 200 such cases per year. I seek leave to have the document incorporated into Hansard. It is a table of the summary convictions.

Leave granted.

Defendant Convictions

Assault GBH Major AssaultOther
2003 58 43 101
2004 40 39 79
2005 58 40 98
2006 67 68 135
2007 38 167 205
261 357 618


The Hon. P. HOLLOWAY: I should explain that, on 14 May 2006, section 23 of the Criminal Law Consolidation Act, 'inflict grievous bodily harm on a person' was replaced by the new law CLC24(1) 'intentionally cause harm to another'. The old law is reported under the offence of 'assault GBH', the new law under 'major assault other'.

The new law will also include some offences which would have been charged under the old, less serious law of 'commit assault occasioning actual bodily harm' which also ceased to exist on 14 May 2006. In addition, there will be plenty of scope for the agreed victim of any bar fight to argue that his case falls within the scope of this when the prosecutor thinks not. Indeed, one can well see that it would not be uncommon for both sides of a bar brawl or a domestic flight to argue that this applied to them both. This kind of complicating scenario may be multiplied many times over, and it is not workable, particularly when the court system is under stress and under pressure to deal with delays in case loads.

The Hon. S.G. WADE: The opposition is attracted to Mr Darley's amendment. We think that there are a lot of people who suffer serious impacts of crime, who should be heard and who are not covered by the current scope of the government's bill. The congestion in the courts is not the consequence of Mr Darley's amendment: it is the consequence of the government's proposing to take it down to the summary courts.

The Hon. P. HOLLOWAY: I indicate that, under section 7 of the Criminal Law (Sentencing) Act, victims have a right to furnish the court with a victim impact statement. What is being sought here is to extend it to an absolute right. There are two types of victim impact statement. Under section 7 of the current act, there is a global right for a victim impact statement, and it is at the discretion of the court whether that statement is read out. However, under new section 7A that the government proposes to enact, the victim of an indictable offence has an absolute right to read out the statement.

So, there is an absolute global right for victims to provide a victim impact statement, but it is at the discretion of the court whether it is read out. However, for victims of indictable offences, and the prescribed offences as proposed, we are giving them an absolute right to have the victim impact statement read to the court.

The Hon. S.G. WADE: Therefore, would it not be the case that the government is not able to tell us whether it would clog up the courts because we have no idea of the propensity of victims in less serious matters and in summary courts to take up the option? Obviously, for an indictable offence in a superior court, the victim is much more likely to take it up. One should not assume that the rates of the discretion being exercised in a superior court are reflected in the lesser courts.

The Hon. P. HOLLOWAY: It is difficult to predict what the outcome of any legislation will be until it is actually tried. Nevertheless, my advice is that victim impact statements occur in about 80 per cent of files in superior courts. I am advised that it is less than 5 per cent in the Magistrates Court. If we can use those as rough figures (80 per cent in the superior court and less than 5 per cent in the Magistrates Court), clearly, if one makes it an absolute right in the Magistrates Court, I think that, based on those figures, there is a very real chance that it will clog up the system.

The Hon. M. PARNELL: I indicate that the Greens will support the amendment. My experience is that floodgate arguments, whenever raised, usually called the corridors of power rather than the corridors of the courts. I am not convinced that this will unduly delay the work of the courts.

The Hon. D.G.E. HOOD: Family First supports the amendment. We have a strong commitment to advocating for victims' rights. In this case, why should they not have the opportunity to outline to the court the harm that has been done to them?

The Hon. P. HOLLOWAY: People do have the right to outline how they are victims. What we are talking about here is whether they should have the absolute right to have it read out and to take up the time of the court. As I indicated earlier, there has to be some compromise in summary justice in a court. Obviously, for those serious cases, this parliament has quite properly indicated that there should be that absolute right which, as we have just heard, is taken up about 80 per cent of the time. However, if we do this for all cases, it has to be borne in mind that people have the right to provide a victim impact statement, and the court will consider it. But as to its being read out in court, we have to make the judgment, given that to provide justice we need our court system to operate effectively, and we do know that it is under enormous strain at the moment.

The Hon. S.G. WADE: I want to clarify a statement the minister has made a number of times—that the victim has a right to make a victim impact statement. As I understand it, that assertion is made in relation to section 7. However, my reading of section 7 is that it is a duty on the prosecutor to make sure that the court is informed of the consequences of the injury. The victim might have a totally different statement to make. Is there in fact a right at the moment to make a victim impact statement rather than a prosecutor's understanding of the impact?

The Hon. P. HOLLOWAY: Section 7 provides that the prosecutor furnishes the particulars of the victim's injury. Obviously, the prosecutor has to get that information from the victim or from the relatives of the victim, as the case may be. One needs to read section 7A in conjunction with section 7. I am advised that section 7(1) is what was introduced to provide for the victim impact statement back in 1988, so that is the section of the Criminal Law Sentencing Act that provides for victim impact statements. So, that is all there is in the law. Basically, it is all there and has been since 1988 to provide for victim impact statements, until 1998 when section 7A came in.

The Hon. S.G. WADE: I thank the minister for those responses, but those responses would confirm the opposition's commitment to support the Hon. Mr Darley's amendment, because it means that the prosecutor's statement of injury—which could be merely technical—is replaced in cases of serious harm with the opportunity for the victim's voice to be heard, including, if you like, the non-technical aspects of the subjective, personal impacts of crime. Therefore we feel doubly encouraged to support the Hon. Mr Darley's amendment.

The Hon. P. HOLLOWAY: That is exactly why we are adding the amendment to section 7, which provides:

If the offence is not an offence in relation to which a victim impact statement may be furnished in accordance with section 7A, the court may nevertheless allow particulars furnished under this section to include a victim impact statement if the court determines that it will be appropriate in the circumstances of the case, and the other provisions of the division relating to victim impact statements apply to such a statement as if it were furnished under section 7A.

Clause 5—which we have just passed—extends the discretion to the prosecutor to furnish particulars of the victim's injury, and that is really a major extension of the victim impact statement.

The committee divided on the amendment:

AYES (13)

Bressington, A. Darley, J.A. (teller) Dawkins, J.S.L.
Evans, A.L. Hood, D.G.E. Kanck, S.M.
Lawson, R.D. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Schaefer, C.V. Stephens, T.J.
Wade, S.G.

NOES (6)

Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Wortley, R.P. Zollo, C.

PAIRS (2)

Ridgway, D.W. Hunter, I.K.


Majority of 7 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 7.

The Hon. S.G. WADE: In relation to community impact statements, as referred to in new subsection (2)(b), I wonder whether particular sections of the community would include non-local organisations, such as a church or an ethnic club.

The Hon. P. HOLLOWAY: My advice is that in new section 7B(2)(a) we talk about a neighbourhood impact statement. In such a case, as one example, suppose a church was burnt down or somehow or other was vandalised as a result of a crime. It could be a situation where hundreds of the attendees at that church would obviously be impacted by that act and they would want to make a statement. In that case, that is where the neighbourhood impact statement would come into effect.

The Hon. S.G. WADE: I was presuming that a body such as a church or an ethnic group would not come under section 7B(2)(a) because they would not be people living or working in the location in which the offence was committed. Particularly in the modern era, churches often draw their members from wide catchment areas, and that is certainly true of ethnic clubs. Therefore, I assume that they would not fit the definition of 'people living or working in the location' and that such a statement would need to be made under section 7B(2)(b). That is my interpretation.

However, whether it is under (a) or (b), can the minister confirm, in relation to the large number of people in such a group, that he was not suggesting that members of churches or ethnic clubs would not be entitled to make the court aware of the impact on them?

The Hon. P. HOLLOWAY: They could make individual statements, of course; they are entitled to do so. However, what we are doing here is giving them the opportunity to make a collective statement. So, rather than individual statements, you can have a collective statement on behalf of those people about how serious it is, and any statement, I guess, would obviously reflect the number of people who were affected by it, which the court would take into account.

Clause passed.

New clause 7A.

The Hon. J.A. DARLEY: I move my amendment in an amended form:

After clause 7 insert:

7A—Insertion of section 44A

Before section 45 insert:

44A—Assistance to victims, etc.

(1) If—

(a) a court intends to—

(i) impose a sentence of community service on a person in respect of an offence; or

(ii) include a condition requiring the performance of community service in a bond imposed on a person in respect of an offence; and

(b) the court is advised by a victim of the offence, or by the prosecution on behalf of a victim of the offence, that the victim would like the defendant to be required to perform community service in accordance with this section,

the court may order that the community service, or a specified number of hours of the community service, consist of projects or tasks—

(c) for the benefit of the victim; or

(d) of a kind requested by the victim.

(2) If a court refuses to make an order under this section, the court should state the reasons for that refusal.

(3) If a court makes an order under this section in relation to a person, the community corrections officer to whom the person is assigned must consult with the victim before issuing any directions requiring the person to perform projects or tasks.

(4) This section does not apply in relation to the performance of community service by a youth.¹

¹ See Young Offenders Act 1993, section 51(1), which provides that work selected for the performance of community service under that act must be for the benefit of specified persons and bodies, including the victim of the offence.

This clause amends section 44 of the Criminal Law (Sentencing) Act 1998. It provides that, if a court intends to impose a sentence of community service on a person in respect of an offence or include a condition requiring the performance or community service in a bond imposed on a person in respect of an offence and a court is advised by a victim or the prosecution on behalf of the victim of the offence that the victim would like the defendant to be required to perform community service in accordance with this clause, the court may—and I emphasise 'may'—order that the community service, or a specified number of hours of the community service, consist of projects or tasks for the benefit of the victim or other victims of crime.

An example of this would be where a victim of an offence thinks it is appropriate for the defendant to actively participate in road safety education courses conducted by schools by speaking to schools about the potential ramifications of their actions. Another example would be where a victim suffers some physical impairment as a result of the offence committed by the defendant and cannot maintain his gardens or perform general maintenance around their home. The victim can advise the court of their request that the defendant be required to spend a specified number of hours of the community service performing these projects or tasks and the court, if it thinks it appropriate, can make an order to this effect.

The court still has the ultimate say in whether such an order is to be made, but this amendment would at least allow the request of the victim to be considered by the court. Where the court makes an order, the community corrections officer to whom the person is assigned must consult with the victim before issuing any directions requiring the person to perform projects or tasks. If a court refuses to make an order, the court should state the reasons for the refusal. Similar provisions apply in section 51 of the Young Offenders Act 1993 which provides that work selected for the performance of community service or other work pursuant to an order or undertaking under this act must be for the benefit of specified persons and bodies, including the victim of the offence. This amendment does not apply in relation to the performance of community service by youth. I ask honourable members to support the amendment.

The Hon. P. HOLLOWAY: The effect of this amendment is that, if any court is intending to impose a sentence that involves 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. Interpreted literally (and there seems no other way of doing it), it seems that the community corrections officer would have to consult the victim before directing the offender whether to pick up that kind of litter, paint that colour or whatever detail might arise on the spot.

This amendment should be opposed, but not only for that reason. First, in essence it seeks to make the victim the community corrections officer (as noted above, quite literally) or at least give power of veto. Victim dictated sanctions are a bad idea. While restorative justice has its place, particularly in the Young Offenders Act, the imposition of it in this one-off, stand-alone amendment is inadvisable. If we are to have adult restorative justice, it should be done properly. For example, proper restorative justice gives the offender a say as well. How much of a say should be worked out properly.

Secondly, the system is unworkable. The imposition of community service as a sanction depends in the first place on the consent of the offender. If the offender is not prepared to do it, it will not work. I repeat the comment about the need to involve the offender in restorative justice.

Thirdly, the system is unworkable in another sense as well. This is most likely to arise in the Magistrates Court. The court will be running through its cases. It will form an intention to impose community service only as it hears submissions. What if the victim is not there? Does the court adjourn the matter while the victim is found and consulted? What are the obligations of police prosecutors to divine the possibilities in advance, to take the opinion of all victims just in case?

Fourthly, all this may well mean that the use of community service as a sanction will decline in favour of other penalties. That is highly undesirable: we should be encouraging the use of community service as a sanction and not making it harder to do or putting obstacles in its way.

Fifthly, I doubt whether correctional services has been consulted about the implications from its viewpoint. I suspect that it will have industrial concerns about victims giving directions to its officers, insurance problems about variable places of community service, practical problems about not putting offenders into designated programs, and resource issues because supervision will be scattered over a whole lot of individual programs rather than concentrated on joint programs.

Thousands of hours of community service are ordered each year. If the department is required to consult with victims in circumstances suggested in the proposal, it would be time consuming and create delays in work being completed. It may well be unworkable. Resource implications for the department, should this proposal proceed, may well be significant. For that reason the government cannot accept the amendment.

The Hon. S.G. WADE: The opposition feels that the government has deliberately overstated the honourable member's amendment. Our understanding (and the member moving the amendment may clarify in his subsequent comments if we are mistaken) is that the court 'may' order the community service or a specified number, and so on. We saw the 'may' as a discretion by the court and in that context we are willing to support it.

I am disappointed that the minister suggests that there might be problems in the administration by the Department for Correctional Services, but the government has not seen fit to give us further details on that, and it sounds as though it is expecting the member to consult the department rather than it taking the opportunity to inform the council. The opposition has some concerns about clause 3, but in terms of the totality of the section we would not want to lose the reform for the sake of that point without further information from the government.

The Hon. CARMEL ZOLLO: As the Minister for Correctional Services I concur in the comments made by the Hon. Paul Holloway in taking through this legislation. Certainly, the government has consulted in relation to how it would affect the Department for Correctional Services, and I reiterate that thousands of hours of community service are ordered each year. If the department was required to consult with victims in circumstances suggested in the proposal, it would be time consuming and create delays in the work being completed.

I place on record that it may well be unworkable. The resource implications for the Department for Correctional Services are significant. To remain a cost effective alternative to prison, community service must be able to be performed by a reasonable number of offenders under the supervision of an officer. At present, most community service details would consist of between six and eight offenders to each community service officer, and many community service projects require groups of just that size. For the offender to be directly and properly supervised, any work carried out for the benefit of an individual victim or of a kind requested by a victim could, by inference, require one-to-one supervision.

So, for all the reasons that have already been outlined, the government believes this particular suggestion is not workable because, clearly, any community service projects require a number of people working together to actually perform that task. That task in itself is, of course, restorative justice. That is exactly what it is about. I hope the honourable member will accept the government's position.

The Hon. M. PARNELL: I agree with two of the things that both the ministers have said so far, but it does not lead me to the conclusion that this amendment is not still workable. I accept that victim-dictated sanctions are not appropriate—I have said that in this place previously. I do not see this as victim-dictated sanctions: I see this as victim-suggested sanctions. There is a big difference. Also, I accept that restorative justice should involve the victims and I see this as one way of that involvement occurring. Minister Holloway referred to directions. I do not see that this is providing a direction; it is a suggestion that a court in its absolute discretion may or may not take up.

The way that I see this amendment working is that the first trigger is that the victim needs to notify the court that they believe a community service order, for example, should occur in a certain way. The court then has to decide whether or not they think that is appropriate. Some judges may well have a blanket position that they do not believe it is ever appropriate for the victim to tell the court how it should exercise its discretion. I can imagine some judges not having any truck with this at all.

Other judges might want to take it to the next step, and it is only then that some of the practical difficulties that the ministers have pointed out in terms of community corrections officers needing to liaise with victims arise. I do not see that that will necessarily bog down the system. It is a balancing act. We are balancing the rights of victims to engage in the process. We are also looking at not overly fettering our judiciary and not overly fettering our community corrections officers. So, on the whole, I think this amendment can work, and the Greens support it.

The Hon. SANDRA KANCK: I welcome this provision. I first came across this concept when I was a teenager and, as teenage girls are wont to do, they cut things out of magazines and stick them in a scrap book. I came across this idea, I think, in Time magazine in the 1960s when it was being trialled—I have forgotten where—and the sort of creative solutions that came out of it I thought were quite impressive. For instance, an example given was of an Afro-American woman (at that stage they were called Negros, if people remember) who had been subject to racial discrimination. In setting the punishment, it was agreed that the white man who had abused this woman racially was required to attend the Sunday church service that this woman regularly went to and also participate in some other extracurricular activities of the church such as repairing somebody's fences or doing some gardening for someone who was not well.

I thought at the time I read it that this is the sort of system we should be moving towards because, if you look at that particular example, that man was going to be forced, at least once a week and obviously a bit more often than that, to mix with these people that he had denigrated. It would become very difficult over time for a person in that situation to continue that denigration as he came to know the people in that church as human beings. This may not be the sort of solution that a court would come up with, but it is perfectly possible that it could be entertained within a community service order. I think there is a real place for a victim, in the setting of these sorts of conditions, to exercise forgiveness, and I think that has a lot to offer in terms of the person who has committed the offence learning about give and take. That process of forgiveness I think would go a long way towards stopping some future criminal activity, so I think this is a great idea.

The Hon. CARMEL ZOLLO: Again I place on the record, because I think it has been lost, that community service in itself is a reparation penalty for minor offending, and the focus is on offenders paying back to the community. I think it is important that we put that on the record. South Australia actually has the toughest community service orders in Australia, with clear guidelines in place for compliance management.

It is a valuable reparation initiative, requiring offenders to undertake any number of community service hours—up to 320 hours. Each year community service offenders contribute around 3 million hours, I am told, to the community, undertaking work that might not otherwise be done. So, community service in itself provides meaningful work for offenders. We hope also that in some cases the offenders acquire skills and experience that will assist them to obtain employment.

A few weeks ago I cited a very good example of just that sort of case. I went to Point Pearce, and the offenders in the community, with other work undertaken at the Elizabeth community corrections, had constructed some crosses which were then placed on unmarked graves, and they worked with the Aboriginal elders.

Clearly, those offenders were undertaking some meaningful work, as well as acquiring some skills. The department itself with its specialised staff does need to have the ability to actually identify the types of community work that are appropriate and, indeed, that the community needs, so that those people after they have offended walk away not only having acquired some skills but also having given something back to the community. I believe this clause by inference does require one-to-one supervision. I stress that the resource implications for the department would be significant.

The committee divided on the new clause:

AYES (12)

Darley, J.A. (teller) Dawkins, J.S.L. Evans, A.L.
Hood, D.G.E. Kanck, S.M. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Schaefer, C.V. Stephens, T.J. Wade, S.G.

NOES (7)

Bressington, A. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.

PAIRS (2)

Ridgway, D.W. Finnigan, B.V.


Majority of 5 for the ayes.

New clause thus inserted.

Clause 8 and title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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