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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-09 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly’s message.

The Hon. P. HOLLOWAY: I move:

That the council do not insist on its amendments.

These amendments were moved by the Hon. Mr Darley in this place to the Criminal Law (Sentencing) (Victims of Crime) Amendment Bill. Of course, we have discussed them at some length. There are essentially two amendments. Regarding the first amendment, the government bill extends all general rights to make a victim impact statement that exist 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 a 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 exigencies of the business of the Magistrates Court and the need to deal with a list in an expedient manner means that business cannot be interrupted or delayed except at great disruption to the summary dispensation of justice. That is what summary courts are for: to be summary.

The practical reason for the election policy that the bill proposes to fulfil is that sometimes a defendant will plead down to a summary offence where there has been an outstanding charge of cause death by dangerous driving or something similar. There are not many of these and the exception can be justified on balance of the harm caused and the practical delivery of speedy justice. This amendment—the Darley amendment—extends 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 all the 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; 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 government believes that the amendment should be opposed; in other words, we should not insist on this amendment because: it does not respect the balance between, on the one hand, extreme damage to a victim who happens to have turned up in the Magistrates Court and, on the other hand, the necessity for 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. The Attorney in another place inserted that table in Hansard on 3 April, and, if anyone wishes to see that, I would refer them to 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 Criminal Consolidation Act, section 24(1)—'Intentionally cause harm to another'. The old law is reported under the offence 'assault GBH'; the new law under 'major assault other'. The new law would also include some offences that would have been charged under the old less serious law of 'commit assault occasioning actual bodily harm', which ceased to exist on 14 May 2006. In addition, there will be plenty of scope for the aggrieved 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 fight to argue that this applied to them both. This kind of complicating scenario may be multiplied. The amendment is not workable, particularly when the court system is under stress and under pressure to deal with delays and case loads.

The government's view is that we made an election promise, we introduced the particular bill, and we believe that, for the reasons I have just outlined, the measure is impractical and unworkable.

The Hon. J.A. DARLEY: I maintain my position and I am disappointed that the government has not agreed to these amendments. I reiterate that this legislation is about empowering victims. The first amendment would have improved and enhanced victims' rights by making the definition of 'prescribed summary offence' wider than the extremely narrow definition proposed by the government, which has the potential of leading to terrible injustices for victims. Limiting the clause to victims who are permanently, physically or mentally incapable of independent function simply does not go far enough.

Again, I ask the question: what if a person is horrifically injured and suffers excruciating levels of pain for a prolonged period of time but is not left permanently, physically or mental incapable of independent function? Should they not also be able to furnish the court with a victim impact statement about the impact of that injury?

In relation to the second amendment, I reiterate that it does nothing to remove the court's discretion and that the court still has the ultimate say in whether an order is to be made. What it does do is, at the very least, allow the request of the victim to be considered by the court.

The Hon. S.G. WADE: The opposition will be continuing to support Mr Darley, and will be seeking to insist on the Legislative Council amendments. In our view, the story of the victims of crime legislation, particularly victim impact statements, is a story of, on the one hand, attorneys-general manning the floodgates and insisting that all hell will break lose if we open this right too broadly and, on the other hand, those who are calling for recognition of victims' rights.

I must say that perhaps the paragraph that clinched it for me was the comment in the Attorney-General's statement in the other place, which has been reiterated by the leader of the government this evening, which says:

The amendment is not workable, particularly when the court system is under stress and under pressure to deal with delays and case loads.

Why is the court system under stress and under pressure to deal with delays and case loads? Because it is not properly funded and not properly resourced and so forth. So this government cannot deny victims' entitlements and the voice of victims within the judicial system because of their own incapacity, or unwillingness to properly manage the courts. We do not believe that victims should pay the price for this government's mismanagement. We do not believe it should happen in WorkCover and we do not believe it should happen with victims' rights in the courts.

The Hon. P. HOLLOWAY: How could it be that, if this bill is proposing something new which will add additional burden to the court, that is mismanagement? It will be mismanagement if we keep adding things to the system; it will cost more money. The Hon. Mr Wade is now a shadow minister. In two years he will be facing an election. Clearly, the Hon. Mr Wade will find millions of extra dollars for the court system. That is great, but he will have to find them from somewhere. I challenge him to tell us now how many more millions of dollars the Liberal Party, if elected, would put into the legal system and where the money would come from. Would the Liberals cut police services? Would they cut health? Would they raise taxes? What would they do? I put that challenge to him.

I cannot let pass this nonsense that somehow or another this has resulted from mismanagement when what is being proposed here is an additional significant burden, if you like, for the court to carry. Of course, there must be a balance. Of course, victims should be represented. The Labor Party pioneered this area with Chris Sumner but, as always, there must be a balance between reasonableness (in terms of the capacity to fund these things) and achieving the desirable social objectives. It is all very well for the opposition to make glib comments about mismanagement, but I challenge members opposite to say what they would do and how they would fund it.

The Hon. S.G. WADE: I find it extraordinary that the Leader of the Government would suggest that the comments of the Attorney-General are glib when he says 'the court system is under stress and under pressure to deal with delays in case loads'. This is a recognised problem in the current environment in South Australia, and we are being told that the government does not want to recognise an opportunity for further recognition of victims' rights because of a situation that it has itself created. It is our view that the courts should be resourced and managed in an appropriate way—and that does not necessarily mean more money; it might mean, for example, people being available for judicial appointments, and so forth—to facilitate the progressing of cases.

The point is that over many years attorneys-general—both Liberal and Labor—have wanted to constrain the expansion of victim impact statements, usually on the basis of a floodgates argument. I think this parliament has every right to maintain the tradition of the parliament and to be cynical of those claims. If the government wants to issue challenges, the opposition, too, can issue challenges. I challenge the government to give one example where it has been proven to be true that a victim's rights have been wound back because an attorney-general has claimed that the courts have been overwhelmed by the expansion of the rights.

My understanding is that these incremental rights have been established over time. They have not been wound back once, because every time an attorney-general has claimed it would overwhelm the courts it has not been proven to be correct. We believe that the Hon. Mr Darley's amendment is responsible. The provision of serious harm is a significant impact. We believe that victims who are experiencing that sort of impact have the right to be heard in the court. There is a proud tradition of attorneys-general wanting to scaremonger on the floodgates argument, but we are not convinced and we will continue to support the Hon. Mr Darley.

The Hon. M. PARNELL: I put on the record that I believe we should insist on this amendment. I think that the amendment is a sensible addition to the right of victims to engage in the process. I agree with the Hon. Stephen Wade's comments that, rather than this being a situation of the floodgates opening up, it is likely to lead to only a small increase in demand on court time. In the justice system we do not prevent defendants from presenting all the evidence they want to present. Criminal trials can go for a long time. It seems to me that the purpose of this legislation is to ensure that a wide range of people with an interest in the matter—the defendant, the prosecutor and the victims of crime—have an opportunity to have their say. I do not think this is an unreasonable extension. I agree that if increased resources to the courts system are necessary to enable this amendment to be carried through without adding to the current unacceptable delays in the court system, then there is a budget coming up and the government can allocate the necessary resources.

The CHAIRMAN: The first question is: that the Legislative Council insist on its amendment No. 1.

The committee divided on the question:

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. Parnell, M.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.
Wade, S.G.

NOES (6)

Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.

PAIRS (2)

Lucas, R.I. Zollo, C.


Majority of 7 for the ayes.

Question thus agreed to.

Members interjecting:

The CHAIRMAN: Order! Members will take their seats. The next question is: that the Legislative Council insist on its amendment No. 2.

The Hon. P. HOLLOWAY: Members may recall when this amendment came before the committee. The effect of it is that if any court intends 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 must consult with the victim before issuing any directions requiring a person to perform projects or tasks.

Interpreted literally, as the Attorney pointed out, it seems that the Community Corrections officer would have to consult with the victim before directing the offender on whether to pick up that kind of litter, paint that colour or whatever detail may arise. As I argued, it is completely unworkable.

My colleague the Minister for Correctional Services also spoke and indicated that it would create great difficulties for her department if it were required to consult with victims in the circumstances suggested by the proposal. It would be time consuming and create delays in the work being completed. Normally, community service is group work. It is really impractical for a number of reasons, and the government believes that this amendment should not be insisted on.

The Hon. S.G. WADE: In his earlier remarks, the Hon. Mr Darley indicated why he believed that we should insist on this amendment. He highlighted that it clearly states that the court may order community service. The opposition believes that, with that discretionary element in place, the amendment is entirely workable.

I note the comments of the minister in relation to clause 3 in terms of the implementation of these orders on the ground. I note that he used the term 'if the order were to be interpreted literally'. I would go so far as to say that the government's interpretation is clearly absurd, and I would not expect a court to interpret it in that way. The opposition therefore will continue to support the Hon. Mr Darley and believes that the committee should insist on this amendment.

The Hon. M. PARNELL: I believe that the committee should insist on this amendment for similar reasons to those given by the Hon. Stephen Wade. It seems that the discretion is still with the judge and that it is not further fettered by this provision. It provides that the court may order that the community service be conducted in a certain way; if the court refuses to make such an order, it has to give reasons.

I can imagine that the standard practice of some judges would be to say, 'I don't think it is appropriate, and that is enough.' It is not a decision that is challengeable. If the court does not think that, in the circumstances of this case or, in fact, ever it is appropriate, I do not believe that this clause imposes any obligation on them.

Another point to make is that we are in the realms of conjecture a little bit as to how many people might seek to take advantage of putting their views to the court. It may well be that a common response will be, 'I don't care what community service they do, as long as it is a long way from where I am. I don't want to see them again.' That is not much of a direction, and it might not result in any particular order, but there will be a lot of people who do not care.

On the other hand, cases were provided during the debate on the original bill where, in the case of property damage, the victim might think that there was some restorative value in having the community service order done in the location, fixing up some of the damage that was done. It seems to me that it is not too bold a measure to put this in as an option that may, in a small number of cases, be exercised.

I do not think that that there is a sound argument either in the form of floodgates or unworkability. If it turns out, through the passage of time and the use of this clause, that it is unworkable, bring it back to us and we will have another look at it. However, it seems to me to be a proposal that is worth trying, and it is consistent with much of the theory of restorative justice which is now gaining in popularity in criminal justice circles.

The Hon. S.G. Wade interjecting:

The Hon. M. PARNELL: As the Hon. Stephen Wade points out, the Mullighan report also endorses the restorative justice approach. I think we should insist on this amendment, and I urge the government to allow it to go through and let us give it a try.

The Hon. P. HOLLOWAY: I understand where the numbers are, so I will not waste time in dividing on the amendment. I think it is regrettable that, on yet another occasion, a government reform (in this case one that it went to the election with) has effectively been destroyed by this chamber by the imposition of an unacceptable amendment. Sadly, it is not unusual for the Legislative Council post 2006.

The Hon. R.D. LAWSON: I wonder whether the minister could indicate to the committee the particular inconvenience or cost which the government considers will occur if this amendment, as moved by the Hon. Mr Darley, is carried. I am not convinced by anything that the minister has said thus far that there is any serious inconvenience either to the scheme of the act or to the general scheme of the Criminal Law Sentencing Act.

The Hon. P. HOLLOWAY: It is quite clear that, if this scheme is implemented, apart from the problems it creates in relation to the principles of restorative justice, there are some problems particularly for Correctional Services. Corrections would inevitably have industrial concerns about victims giving directions to their officers; insurance problems about various places of community service, namely, the victim's home or perhaps the victim's roof; or practical problems about not putting offenders into designed programs.

Community service is generally designed for supervising a number of workers involved in the program. If this program is ever to be employed, clearly, it will create all sorts of problems for Correctional Services in terms of implementing it. If it is actually used and is to be effective then, clearly, it will cause a number of difficulties for Correctional Services which they can only overcome at significant cost. That is why it really is unworkable.

The Hon. R.D. LAWSON: The minister has just talked about difficulties and problems, and finally mentioned costs. Has the government factored in or determined the estimated cost of meeting this new requirement? The minister also mentioned industrial issues. Does the minister suggest that Correctional Services officers have industrial concerns about this particular amendment?

The Hon. P. HOLLOWAY: I am suggesting that they are some of the issues that are likely to arise. This is not the government's amendment; it is not the role of the government to cost amendments made by others. However, how does one do it anyway? Obviously, it depends on the take-up. However, it certainly has the potential to raise a number of these issues. I have indicated the sorts of issues that could arise and could create significant costs.

If one trades that against the benefit, surely what is important here—if we are talking about victims' rights—is that the victim should be assured that the perpetrator of the crime is appropriately dealt with. If community service is the choice, surely the victim's interest is that that community service should be performed, and performed adequately, so that that person does meet their debt to society.

However to try through this amendment to refine that into actually doing work of a kind by a victim does significantly increase the difficulty without, I would suggest, adding any particular benefit in relation to victims' right. What is important is that the community service, if it is ordered by a court, be so performed.

The Hon. R.D. LAWSON: The minister also mentioned insurance concerns in his justification for the government's dog-in-the-manger attitude to this amendment. Will the minister described to the committee the precise nature of the insurance concerns which have led the government to oppose this amendment?

The Hon. P. HOLLOWAY: In indicating some of the potential pitfalls, if an offender on a community scheme is injured, presumably they would have the right, if there is some negligence. If they can claim negligence for a scheme, I presume they have legal rights in relation to any injury that may occur. That is why these schemes for community corrections are carefully designed so that the occupational health and safety requirements of correctional service officers and the people they are responsible for are properly looked into. Issues could arise if a person is doing work as part of a community service program that is not of a nature that has been well-designed. These sorts of issues could possibly arise.

Question agreed to.

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