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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-28 Daily Xml
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STATUTES AMENDMENT (VICTIMS OF CRIME) BILL

Committee Stage

In committee.

Clause 1.

The Hon. P. HOLLOWAY: I intend to explain the government's amendments that were filed very late in the piece. I apologise to the committee for any inconvenience that may have caused. The amendments are designed to fix an anomaly discovered late in the course of the passage of this bill. The amendments themselves are somewhat obscure and I will now try to explain their reason and effect. Sections 32(7) and (8) of the Victims of Crime Act 2001 say, in effect, that a court must impose the levy set for each offence and only the Governor, not the court, can remit or forgive any levy or part of a levy.

The levy is enforceable under the Criminal Law (Sentencing) Act 1988. Section 13(1) of the Criminal Law (Sentencing) Act 1988 provides that the court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that:

(a) the defendant would be unable to comply with the order, or

(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant, and in such a case the court may, if it thinks fit, order the payment of a lesser amount.

Section 14 in effect directs the court that, when exercising that discretion, it must give primary place to any order for monetary compensation in favour of the victim. These discretions apply to any pecuniary sum. That is a defined term. The definition specifically includes a VIC levy.

It necessarily follows that under the Criminal Law (Sentencing) Act a levy is treated just like any other monetary sum and may not be imposed in whole or in part like any other. Furthermore, sections 70I and 70J of the Criminal Law (Sentencing) Act appear to confer general powers to remit or reduce the levy if it has been imposed. The two acts are inconsistent, and the inconsistency should be fixed. The policy should be that the victims levy should not be treated as just another pecuniary sum. It should be more difficult to get dispensation from paying it.

It is not feasible or desirable to set up an entirely separate regime for just victims' levies. A set of amendments to the bill has been drafted implementing a policy that has the effect of making sure that (a) the levy cannot be remitted or varied by the court of sentence; (b) the levy cannot be remitted or varied by a registrar; and (c) the levy can be remitted or varied by the court on review.

The existing system has its own test for dispensation. The test is: if the court is satisfied that the debtor does not have and is not likely within a reasonable time to have the means to satisfy the pecuniary sum without the debtor or his or her dependents suffering hardship. This is an appropriate test.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

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

Page 4, lines 19 to 23 [clause 6(6), inserted subsection (5), definitions of prescribed summary offence and total incapacity]—

Delete the definitions of prescribed summary of events 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.

Members previously agreed to this amendment when I moved it in 2008. It amends clause 6 of the bill to extend the circumstances in which a victim has the right to tender a victim impact statement to the court where a summary offence has been committed. The government limits the circumstances to summary offences resulting in the death or total incapacity of a victim. My amendment extends this to summary offences resulting in death or serious harm. This would allow more victims the opportunity to deliver a victim impact statement where a defendant's actions have had very serious and life-changing consequences. As I said, honourable members, with the notable exception of government members, have supported this previously, and I urge them to do so again.

The Hon. P. HOLLOWAY: I note that this same amendment was moved by the Hon. Mr Darley when the Criminal Law (Sentencing) (Victims of Crime) Amendment Bill 2007 was before the council. The government continues to oppose the amendment. The government bill extends the right to make a victim impact statement that exists now only for indictable offences to prescribed summary offences.

A prescribed summary offence is a summary offence which results in the death of the victim or which causes total incapacity. The purpose of this measure is to capture those cases where, for example, an offender has been reckless or negligent in his or her driving, and death or total and permanent incapacity to the victim results, but the offender has been convicted on a summary offence as opposed to the major indictable charge of cause death by dangerous driving. There are not many of these cases, but the impact of these offences warrants a victim impact statement being read.

It should be noted that it would also apply, for example, to industrial accidents constituting summary offences under workplace safety law. The amendment proposed by the Hon. Mr Darley seeks to broaden this general right to include those victims who have incurred serious harm as a result of a summary offence. The government believes this to be impractical. The practical exigencies of the business of the Magistrates Court and the need to deal with a list in an expedient manner mean that business cannot be interrupted or delayed except at great disruption to the summary dispensation of justice.

A glance at the cause list on any day in a magistrate's court in South Australia provides the requisite proof of this. However, the government did take on board the general thrust of the amendment and included an additional provision in the bill when reintroduced. The compromise applies to victims of serious harm and other offences. Clause 5 amends section 7 of the Criminal Law (Sentencing) Act 1988 so that in cases where the offence is not an offence to which a victim impact statement may be furnished in accordance with section 7A the court must, nevertheless, allow particulars to be furnished, which includes a victim impact statement, unless the court determines it would not be appropriate to do so.

There is a compromise to this proposed amendment already contained within this bill for victims of serious harm and other offences, and that is achieved in clause 5, which proposes to amend section 7 of the Criminal Law (Sentencing) Act 1988. Clause 5 of this bill states that, in cases where the offence is not an offence to which a victim impact statement may be furnished in accordance with section 7A, the court must nevertheless allow particulars to be furnished, which includes a victim impact statement, unless the court determines it would not be appropriate to do so. The government provision respects the balance between a victim's right and 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 this table (which I tabled during the committee stages of the predecessor to this bill), and, until fresh figures are publicly released by the Office of Crime Statistics later this year, the following statistics still remain an accurate snapshot. There will be between 100 and 200 such cases per year, which could be considered as falling within the definition of serious harm. I seek leave to insert the document in Hansard; it is purely statistical.

Leave granted.

Defendant Convictions

Assault GBH Major Assault Other
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: The amendment is not workable, particularly when the court system is under stress and under pressure to deal with delays in caseloads.

The Hon. S.G. WADE: The opposition was interested to hear the response of the minister because, as the minister and the Hon. Mr Darley indicated, this issue is not new to the committee; we have discussed it before. The committee really needs to decide whether it got it wrong in 2007. As I understand it, the government's explanation is, basically, that the best way to avoid a flood of cases clogging up the Magistrates Court is not to put power in the hands of victims but to put it in the hands of the presiding officer of the Magistrates Court.

The Liberal Party believes, as a general principle, that victims have rights. That is why in the 1990s and in 2000 and beyond it introduced a number of reforms that enhanced the rights of victims. The Liberal Party believes that, wherever possible, the decision should not be in the hands of a presiding officer but in the hands of the person who cares most—and that is the victim.

What we as opposition members ask ourselves, in relation to the Hon. Mr Darley's amendments, is whether this is so radical an expansion of the entitlements of victims that it would put undue pressure on the Magistrates Court in the administration of justice. The minister has informed us that the information provided to the council two years ago in relation to the 2007 bill is still current, and that is that there might be 100 or 200 cases that, shall we say, fall within the definition of serious harm. It hardly sounds like a flood. First, between 100 and 200 sounds like pretty broad figures, and, secondly, we have not been given any indication from the government regarding the propensity or rate of uptake by victims in terms of the use of victim impact statements.

The impact on victims is so important to the administration of justice that in the opposition's view it would need to be a serious detriment to the court's operation for members on this side to discontinue support for the Hon. Mr. Darley's amendments. The opposition does not believe it is appropriate for the government to say that the courts are stretched, that the resources are not going far enough and that therefore we cannot give any enhancement to the rights of victims. It is the government that funds the courts.

Time and again we see the belligerent attitude of the Attorney-General in relation to judicial officers and the judicial system. He has repeatedly failed to give them the resources they need. Why should we trust the Attorney-General when he tells us that the floodgates would open and victims cannot be given an appropriate place in the criminal justice system? Considering the minister's response tonight, the opposition will continue to support the Hon. Mr. Darley in his amendment.

The Hon. P. HOLLOWAY: Surprise, surprise! I do not think one could expect much else from an opposition that is so pathetic, so incapable and so lacking in credibility that I suppose it will do the only thing it can do, which is just use and abuse its numbers in this place. What justice do victims get if the legal system does not work properly? In fact, it is the opposition through its intransigent stance on this that will most damage victims' rights. If our judicial system does not work properly because it gets gummed up in these measures, there will be no justice for victims. So, let us have none of this nonsense that the member opposite is really on about.

This is all about the Liberal Party exercising power, as it loves to do. It is so irrelevant in the political scene in South Australia that the only thing it can do is abuse its numbers in this place, as it perpetually does—but so be it. The opposition's attitude is not surprising. It is why it is where it is—where it deserves to be. Let us have none of this nonsense. What I certainly cannot let go by is this nonsense that somehow or other the Liberal Party is standing up for victims' rights when it is pursuing something that can only make our system unworkable.

An honourable member interjecting:

The Hon. P. HOLLOWAY: The Hon. Mr Wade talks about more resources being needed for the judiciary.

The Hon. S.G. Wade: Hear, hear!

The Hon. P. HOLLOWAY: 'Hear, hear!' he says. Does the Hon. Mr Wade understand the financial situation? Does he really think that there is a magic pudding out there? Does he understand that hundreds of millions of dollars—

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: Do you understand, Mr Wade, that one of these days—God help this state—you might actually be a minister? So, Mr Wade, will you stand up and say that an incoming Liberal government will guarantee—notwithstanding the current financial crisis—additional resources for the court system? Let's hear you say this.

The Hon. S.G. WADE: I can give an undertaking to this committee that an incoming Liberal government will give due priority to the rights of victims and not put this matter at the whim of a magistrate or an attorney-general who shows disregard for the judicial system. In relation to the minister's jump into the gutter, bringing partisanship into this debate, let me be honest about it: attorney-general after attorney-general, Liberal and Labor, have used these arguments. The Hon. Trevor Griffin used the floodgates argument. We in government were cautious. We do not blame the government for being cautious.

We appreciate that the government has gone to the bother of getting an estimate of how many cases might be involved but, faced with a history of attorneys-general who have used the floodgates argument time and again, this council has decided to expand the rights of victims and, lo and behold, the Magistrates Courts are still, brick on brick, standing and operating. So, faced with the information provided to the parliament and faced with a history of attorneys-general who are overly cautious on the entitlements of victims, we believe that this committee should support the Hon. Mr Darley.

I remind the minister to do his numbers. We have only eight members in this chamber. We cannot pass anything without the support of our crossbench colleagues. I remind members of a very recent debate. The Hon. Ann Bressington educated me—as she often does—about why a retail worker in an equal opportunity tribunal should have to ask the tribunal chair to have legal representation. It is the same issue here: why should a victim have to ask a magistrate whether they have the right to have their say? We believe that victims are entitled to rights and entitlements. They are not entitled to suffer under an attorney-general who, in the seven best years that this government has had, gives the judicial system such a low priority. We certainly will not have a government that says no to every idea that comes from the crossbenches and the opposition. We will be supporting the Hon. John Darley.

The Hon. P. HOLLOWAY: Inevitably, of course, the Hon. Mr Wade would seek to dissemble and misinform. What needs to be pointed out is that, under the changes that the government is putting forward, there is a presumption in favour of the victim. The presumption is in favour of the victim. As I indicated, it is only if the courts determine in those situations that it is not appropriate in the circumstances of the case, and that is exactly what we are saying in new subsection (2a). The Hon. Mr Wade talked about previous attorneys-general. If I recall correctly, it was actually the Hon. Chris Sumner, when he was in this place, who—

The Hon. S.G. Wade: A very long history.

The Hon. P. HOLLOWAY: Well, the victims of crime movement does have a long history. Under Chris Sumner, we were one of the first jurisdictions in the world to introduce measures in support of victims of crime. Like everything else, life is complex and difficult. You have to reach a compromise between providing those benefits to victims and the administration of justice. In fact, if you get the balance wrong you will not be helping victims at all, because if it tilts too far in favour of the effective operation of justice, an unfortunate side effect of that is that you will actually be harming the victims. Let us at least have the debate on what really is before us. If you look at clause 5—amendment to section 7, it 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 must nevertheless allow particulars furnished under this section to include a victim impact statement unless the court determines that it would not be appropriate in the circumstances...

This is what we have put forward as a compromise amendment. Let us not have this misinterpretation as if it is some black and white issue. In fact, the clause provides that the presumption of the victim impact statement applies 'unless the court determines that it is inappropriate in the circumstances....(and the other provisions of this division relating to the impact statements apply to such a statement as if it were furnished under section 7A)'. So, let us at least debate the amendment the government has put forward.

The Hon. M. PARNELL: In the spirit of the minister's contribution, I would like to test, through questions, the compromise the government says it has put forward. If I look at the Hon. Mr Darley's amendment and I ask myself the question, 'Should people who fall into that category be entitled to have their voice heard?', I think the answer is yes. However, if I look at the government's amendment, I see that there is still a presumption of these victims being able to have their say. The key words of disagreement seem to be 'the ability of a magistrate to determine that the victim cannot be heard'. The words in the government's amendment are 'unless the court determines that it would not be appropriate in the circumstances of the case'.

My question to the minister is: would a court be able to apply that section and deny a victim the right to have their say because, for example, the court says, 'The court list is busy. There are lots and lots of cases. We're running out of time. People are waiting too long to have their cases heard.'? Would that be sufficient reason for a magistrate to say, 'I'm sorry; even though there is a presumption that you should have your say, we've got to rip through the case list. We're miles behind. We're not going to let you.'? Would that be a reasonable way for a magistrate to interpret the government's amendment?

The Hon. P. HOLLOWAY: If the magistrate refused, he would have to give reasons as to why he would not allow a victim impact statement. So, one would not think it likely that a magistrate would do that. If the magistrate had to give reasons why he would not allow it, I guess that would cause a delay in the system, anyway. If one looks at the specifics of section 7(2a), which is the provision that the government is proposing to insert, it provides that a victim impact statement can be included 'unless the court determines that it would not be appropriate in the circumstances of the case'. It specifically provides 'in the circumstances of the case' which, of course, would not and should not cover whether the courts are too busy.

The Hon. J.A. DARLEY: Section 7 of the Criminal Law (Sentencing) Act provides that the prosecution must—and I emphasise 'must'—furnish the court with particulars of the injury, loss or damage resulting from the offence. How would it cause any more delay to the court to have a victim furnish the court personally with their statement, as I am proposing in this amendment, rather than have the prosecutor do this, as he or she is mandated to do under section 7? If the prosecution must do this, how is it causing a delay if the victim does it instead?

The Hon. P. HOLLOWAY: The statistics that I tabled earlier give some indication to the committee of the impact of Hon. Mr Darley's provision if it were successful. I think those statistics really stand for themselves. By way of compromise, the government is proposing to put an appropriate safeguard into the act that would give the court the option that, if it were not appropriate in the circumstances of the case, the magistrate could make that decision, and, of course, as we indicated earlier, would have to give reasons for doing so.

We are attempting to deal with a practical problem in relation to what impact this might have on our courts, while at the same time maintaining a presumption in favour of victim impact statements. That is what we are trying to do: get the balance right. There is a presumption that there will be a victim impact statement. It is not just indictable offences; it is covering all offences, remember. But, there is this safeguard that, if the court determines it would not be appropriate in the circumstances of the case, the court can so determine and, of course, would give its reasons for so doing.

The Hon. S.G. WADE: I would like to explore the comment reiterated by the minister on at least three occasions that, under the government's proposed clause 5, new section 7(2a), the court would need to give reasons. I note in the Hon. Mr Darley's amendment for a new clause 8A, section 44A(2) specifically provides that 'if a court refuses to make an order under this section, the courts must state the reasons for that refusal'. That is very clear. I presume that parliamentary counsel thought it needed to put that in because courts can make decisions without giving reasons, and that is my understanding. On what basis does the minister assert that new section 7(2a) would require the courts to give reasons?

The Hon. P. HOLLOWAY: The answer is that it is not prescribed in that particular provision, but we are talking here about the fundamental legal principle that courts give reasons, for example, if bail is rejected. They may be very brief or they may be detailed, but I think there are legal principles involved here that, when courts make decisions, they explain them. As I said, it is a fundamental legal principle.

The Hon. S.G. WADE: I must admit that that answer is not credible to me, but the committee will make its own judgment. If the government keeps asserting that they are going to give reasons, I would like to see it in the clause just as the Hon. Mr Darley put it in his clause. However, going back to the minister's data that he tabled, I would like to specifically ask the minister: in relation to the 100 or 200 cases that he referred to that would be eligible under the Hon. Mr Darley's amendments, first, how many does the government anticipate would take up that opportunity and, secondly, to get an idea of the magnitude of this flood that the minister is warning about, how many cases are dealt with by the Magistrates Court in any one year?

The Hon. P. HOLLOWAY: We went through all this when the previous bill was discussed some 12 months ago or more. I believe the information that we then provided was that, within superior courts, we understand that about 80 per cent of cases are taken up with victim impact statements. In relation to the Magistrates Court, I believe it is currently about 5 per cent.

Obviously if this bill were passed, we would expect that to significantly increase. This was all covered during the previous debate. We can only make predictions based on what information we have in relation to other courts. The caution has to be that they will be predictions. In relation to the number of cases before the Magistrates Court, in the annual report for 2007-08 the number of criminal hearings was 230,816.

The Hon. S.G. WADE: Linking those thoughts, if the government is suggesting that the propensity to take up the opportunity for victim impact statements in the Magistrates Court is 5 per cent and if the estimated number of eligible people under the Hon. Mr Darley's amendment is 100 or 200, we are facing the tragic challenge of the courts dealing with between five and 10 victim impact statements in a total case pool of 230,000. To me, the Hon. Mr Darley's amendment is very moderate.

In fact, the minister referred to his clause 5, and his amendment has a lot more risk, because the Hon. Mr Darley's amendment limits the entitlement only to people with serious harm or death. The minister laboured the point that it can be anything. So, considering the total case pool is 230,000, if you want to apply the current data (e.g. 5 per cent of magistrates courts take them up), 5 per cent of 230,000 is certainly a lot more than 5 or 10 per cent of 100 or 200.

I think the government is using this traditional Attorney-General's argument to scare the committee into not maintaining its steady incremental approach to expanding the rights of victims. As I indicated, the opposition will support Mr Darley's amendment.

The Hon. A. BRESSINGTON: I rise to indicate that I will not be supporting this amendment. I am aware that I did last time, but my office has been assured by the commissioner that the government's amendment does cover the amendment of the Hon. John Darley. I believe that, if the commissioner is satisfied with the amendment that has been put forward, it is probably in our best interests to appoint people to these positions for reasons and, when they indicate that they are satisfied with the amendment put forward, perhaps it is in this chamber's best interests to respect the people and their opinions who are in those positions, rather than play political games with this.

The Hon. S.G. WADE: I want to make the brief observation that it is unfortunate that the Hon. Ann Bressington relies on advice from a commissioner that is not available to the whole committee. With all due respect, the Hon. Ann Bressington may interpret that advice in a different way from the opposition, and I indicate my regret.

The Hon. P. HOLLOWAY: The commissioner is available to speak to anybody; the Hon. Mr Wade has chosen not to do so. I think it is a bit out of order for him to try to criticise other members who have taken the time to inform themselves. The only other point I make is in relation to what impact it might have. The victim impact statements can take between 15 and 30 minutes to read out.

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: Why should they be necessarily any different? We know that the magistrates courts are extremely busy, as you would expect if they are dealing with 230,816 cases, as they did in 2007-08. I suspect, unfortunately, that it will probably be more this year.

The Hon. S.G. Wade: Rann's crime explosion.

The Hon. P. HOLLOWAY: It is probably more to do with the economic situation than anything else. This government is quite happy to back its credentials in relation to law and order and the initiatives we have taken. One of the reasons there could be more court cases is that we have introduced many effective laws in this state, and they are all about protecting victims. Remember that victim impact statements are an important part of the process, but there is a lot more to protecting victims' rights than just having statements read, as important as that might be. As I said, we have to get the overall balance right if we really are to give the best deal to victims. It can take significant time, and it has a significant impact on a very busy court.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. (teller) Dawkins, J.S.L.
Hood, D.G.E. Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G.
NOES (10)
Bressington, A. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 7 passed.

New clause 7A.

The Hon. P. HOLLOWAY: I move:

Page 5, after line 17—After clause 7 insert:

7A—Amendment of section 13—Order for payment of pecuniary sum not to be made in certain circumstances

Section 13(1)—after 'pecuniary sum' insert:

(other than a VIC levy)

The Hon. P. HOLLOWAY: As I previously indicated, these amendments are to fix an anomaly that was discovered in the course of the passage of this legislation. I have already indicated the reasons, so I will not repeat them.

New clause inserted.

Clause 8 passed.

New clause 8A.

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

Page 5, after line 41—After clause 8 insert:

8A—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 must 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.

Note—

See section 51(1) of the Young Offenders Act 1993 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.

Again I indicate that I moved this amendment previously when we visited this bill last year. It amends section 44 of the Criminal Law (Sentencing) Act to provide that, if a court intends to impose a sentence of community service for an offence, the victim is allowed to have input into what that order of community service would entail. This would allow victims to at least suggest that a defendant perform service that allows them to face the consequences of their actions: for example, requiring a person convicted of death by dangerous driving to undertake community service relating to helping in relation to driver safety programs or rehabilitation of road trauma victims.

I draw members' attention to the wording in section 44A(1)—'the court may order'. This leaves the matter entirely to the discretion of the court and they still have the ultimate say in whether the order is to be made. The amendment simply allows an option for a victim's request to be accommodated. I note that the government in its new clause 7C allows a victim to make a submission on sentence. My amendment is well within the spirit of the government's amendment and simply allows for the possibility of extending the victim's ability to comment on sentence.

The Hon. P. HOLLOWAY: I note that the same amendment was moved by the Hon. Mr Darley when the Criminal Law (Sentencing) (Victims of Crime) Amendment Bill 2007 was before this council. The opposition supported this amendment but it was unacceptable to the government which, in turn, proposed two compromises. The deadlock conference failed and the bill was later rescinded on 19 June 2008. This amendment, along with other government measures, were also present in the private member's bill introduced by the Hon. Mr Darley in 2008. 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.

The government continues to oppose this amendment for the same reasons as when the amendment was first introduced. Furthermore, it seeks to equip the Community Corrections officer with a power of veto if an offender disagrees with what is being suggested by the Department for Correctional Services. While restorative justice does have its place, particularly in the Young Offenders Act, the inclusion of it in this one stand-alone amendment is inadvisable. Consideration must be given to circumstances where an offender refuses to undertake the community service directed by the victim. It is currently the case that the imposition of community service as a sanction is dependent upon the consent of the offender. If the offender is not prepared to do it, or for whatever reason is only prepared to do community service that does not involve the victim, what occurs then?

The amendment fails to consider the delays that could be caused when a magistrate or judge decides to sentence an offender immediately after submissions on sentence (as is often the case in the Magistrates Court) and it is decided that community service is to be imposed. If the victim is not present in court, must the court then be adjourned and the matter held in the list to enable the prosecutor to make contact with the victim? It is common practice in busy summary jurisdictions for only one police prosecutor to be present in court. Does this mean that the rest of the matters in the list on that day are to await the return of the prosecutor who has left the courtroom to chase up the victim with a telephone call? If the victim cannot be contacted, how long should the matter be adjourned? Whose responsibility will it be to continue attempts to contact the victim? What are the obligations of police prosecutors—to take the opinion of all victims just in case?

I think those questions clearly indicate that there are some serious practical problems in relation to the amendment. There is a chance that use of community service as a sanction will decline in favour of other penalties, mainly to overcome the issue of not being able to contact the victim or the offender not consenting to community service for the benefit of the victim. Much good work occurs as a result of community service performed by offenders. We should be encouraging the use of community service as a sanction, not making it harder to do or putting obstacles in its way.

Another consideration is the logistics of putting this amendment into practical effect. The impact this may have upon Correctional Services should not be underestimated. Issues that spring to mind include insurance problems about variable places of community service or practical problems about not putting offenders into designed programs and resource issues because supervisions 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 was required to consult with victims in circumstances suggested in the proposal, it would be time consuming and create delays in work being completed. How does correctional services overcome unreasonable requests made by victims which are unsafe, impractical or contrary to the spirit of what is being proposed? By what benchmark will requests or submissions made by victims be assessed and deemed appropriate or within the capabilities of the Department for Correctional Services?

In the spirit of compromise and in an attempt to avoid another deadlock, clause 7 of this bill includes a provision that will enable victims to comment upon the sentence to be imposed by the court in their victim impact statement. This, of course, will be a choice and not a mandatory requirement on the victim. If a victim did elect to make a comment or suggestion for penalty, the court could take notice of the suggestion in the same fashion that it currently takes notice of the prosecutor's and defence counsel's submissions.

The government believes that permitting victims to comment on sentence is the best option to achieve the outcome desired by the Hon. Mr Darley, minus the logistical problems and impracticalities that this amendment would create if passed.

The Hon. A. BRESSINGTON: I will not be supporting this amendment. I did not support it last time. I would just like to make a couple of very brief points. I notice that we are starting to throw around this terminology 'restorative justice'. Somehow we are of the belief that one amendment in one bill will change the course of handling victims after crimes have been committed. I remind members in this place that restorative justice is a whole other process in its place. We cannot take only one bit of a restorative justice process, implant it into a piece of legislation and hope that we will get the desired outcomes that you get from a true restorative justice process.

In my contribution to this bill last year I made the point that sometimes victims are not the best people to be involved in this kind of process. Sometimes the grief and loss of victims in dealing with the trauma that has been left behind does unhinge them for a while. We hear that some of these processes will give a victim closure. Closure is a myth. You do not get closure until you have been able to go through your own grief process in your own sweet time. There is no judicial process and no restorative justice process that will give any victim closure after the loss of a child or the maiming of a child, a partner or whatever. I think that even in psychological circles that is accepted.

Closure is a personal thing that you achieve going through your own personal process, and it has nothing to do with the judiciary. We need to be very careful that we are not blurring the lines or crossing the border between parliament and our wishes, hopes and dreams for our constituents and interfering with that legal process. I stand by my objection to this amendment as I did last time.

The Hon. S.G. WADE: I thank the Hon. Ann Bressington for her comments, because it does highlight that, whilst restorative justice elements might improve, shall we say, the traditional justice system, quite different processes are involved. I just indicate that, in spite of the ALP policies in support of restorative justice, I understand that the Attorney-General publicly stated to a workshop earlier this year that whatever the ALP policy says he did not believe in it. I do not know why the minister thinks we can trust an Attorney-General who does not believe in restorative justice to manage a bill with elements of it.

In terms of the logistics argument, I do not propose to delay the council by trying to pick up a number of the issues the minister raised, but let us use just one. He suggested that the absence of the prosecutor or the victim might delay the proceedings of a court, as the court needed to establish whether or not the victim or the prosecutor wanted to make a statement. That is just spin. Section 44A(1)(b) provides that if 'the court is advised by a victim of the offence'. The onus is on the victim or the prosecution to advise the court.

The third issue—and this is not a response to the government but, rather, to reiterate why the opposition is willing to even countenance this proposal—is the phrase that the Hon. John Darley highlighted in section 44A(1), which provides that 'the court may order'. We would not be comfortable with the court losing its sentencing discretion, but we believe that it is appropriate for the victim to have an opportunity to express their view.

We welcome new clause 7A and we think it is an improvement to the bill. It is interesting that it takes opposition and the crossbench members staying committed to the views of the council at a deadlock conference to get the government to come back with compromises. Let us remember that this was not a long and protracted deadlock conference where the council tried long and hard to come to an agreement with the House of Assembly and failed. My recollection is that it did not meet more than once.

Whilst I am disappointed that this suggestion was not made available to a deadlock conference on the previous bill and the government belligerently delayed appropriate reforms to the bill, we will be maintaining our commitment to support this clause, as we did in the previous bill and as we did at the deadlock conference.

The Hon. P. HOLLOWAY: Of course the Hon. Mr Wade would do that. His contribution shows his detest of the Attorney-General. His personal bias has come through into the opposition. How unfit this man is to be a shadow minister! What a tragedy it would be for this state if all he can see is this issue. He will not debate it on its merits. All he does is let us know his personal hatred of the Attorney-General. His comments said it all. It is a trait which Mr Wade has shown before. He lets his personal feelings interfere—

The Hon. C.V. Schaefer interjecting:

The Hon. P. HOLLOWAY: That is what happened; read what he said. Obviously, you were not listening. Why can he not debate it on the merits or substance of the clause? Why does he have to make it personal? The Hon. Caroline Schaefer should not accuse me. What the Hon. Mr Wade said was a personal attack on the Attorney-General—and he will not get away with it. Every time he does it I will remind him of it.

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: Yes, it really will. This is how members opposite operate. It is all personal abuse and never debate on the merits or substance of the argument. Section 44A(1) of Mr Darley's amendment provides:

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…

What we are talking about is 'if a court intends to impose a sentence of community service'.

The point I was trying to make earlier is that this provision will distort, I believe, the use of community service as a sanction. Community service is an important part of the corrections system, but if it becomes impractical to apply then the use of community service will decline in favour of other penalties, mainly to overcome the issue of not being able to contact the victim of the offender. I believe that is the unfortunate side effect of this amendment. I think the honourable member is still the shadow corrections minister and it is something on which he should reflect.

The Hon. S.G. WADE: I want to clarify my comments. It certainly was not a personal attack on the Attorney-General, so perhaps I could sketch the relevance. I presume that the minister is representing the Attorney-General in this place and, because it is his bill, presumably the arguments he is putting in support of the bill to this committee are endorsed by the Attorney-General.

The minister tonight told us that the amendments proposed by the government support the principle of restorative justice. I have been told by a number of people that the Attorney-General has advised a public meeting, I think in February this year, that he does not believe in restorative justice. Therefore, why would the committee give any credence to assurances from the minister that restorative justice is a value that is being reflected in this bill and therefore the government bill should be supported? I do not expect the minister to confirm whether the Attorney-General said that, but I have heard it time and again.

The Hon. P. HOLLOWAY: What Mr Wade is using is a second-hand reflection of a comment made at a public meeting. In what context was the Attorney-General speaking? In any case, even if it was a throw-away line, so what? The fact is, if he did say it—

The Hon. S.G. Wade: I didn't say it was a throw-away line.

The Hon. P. HOLLOWAY: Well, you do not know in what context the Attorney did say it. Regardless of that, the issue before us is whether this particular clause, if passed, will have a positive impact on the administration of justice. The point that really needs to be addressed is this question of the impact that it will have on the use of community services as a sanction because, as I think I pointed out in my earlier comments, there are a number of problems that would befall our busy Magistrates Court if one was to give effect to this amendment, if it were to be passed into law, in terms of determining a victim's wishes in relation to community service.

The Hon. M. PARNELL: To assist in determining the will of the committee, I will say now that I do not support this amendment. I think that the role of sentencing and all its discretions is most appropriately left to our judges and magistrates. That includes community service. I think there can still be creativity in the choice of community service projects. It does not necessarily require the input of the victim, and I think that, whilst we are debating in this bill the appropriate role for victims in the criminal justice system, there are limits to that role. Without detaining the committee too long, I have often thought that, if it was someone who was close to me who was the victim of a crime, I would very much prefer the sentencing to be in the hands of someone other than me, because I know that I would not be able to approach it in the sort of impartial way that is needed to do justice.

So, whilst I accept what the Hon. John Darley's amendment is trying to do, that is, to increase the role of victims to give them an extra opportunity to have input into the appropriate sentence, especially as it relates to community service orders, I do not believe that it is an amendment that is so useful that it warrants the administrative difficulties that it would cause, and they are those difficulties that the minister has set out.

The Hon. DAVID WINDERLICH: I also oppose the amendment, primarily because I think it is a camel. The idea of victims having input into the sentencing I think comes from the broader notions about bringing home the personal impact of the crime or the offence to the offender. Those ideas do come out of restorative justice, but the point of restorative justice is the skilfully mediated coming together of the victim and the offender in a non-court setting, partly to avoid getting to court and partly because that can be seen as the best way of achieving both redress and rehabilitation.

This brings that idea from restorative justice and puts it in a court setting after people have already been through the adversarial court system, and I do not see what you get out of that. I think there are only two possible motives for this sort of approach. One is some sort of vengeful payback, which I am sure is not the intent of the mover, and the other is to have the best effect by bringing the offender face-to-face with the personal consequences of their actions and, as I said, that idea comes from restorative justice. It works in a non-court setting. It relies on skilful mediation and a sort of coming together of victim and offender, and you have to choose the sorts of offences for which that happens and the sorts of people and circumstances.

I do not think you can take a very good idea from restorative justice, which is part of a broader approach, and drop half of it into a court setting. I do not think that will work. So, although well intentioned, I think the amendment is a camel and I will be opposing it.

The Hon. D.G.E. HOOD: The last time this amendment was put to the committee I outlined the reasons why Family First would be supporting it, and our position has not changed.

New clause inserted.

Clause 9 passed.

New clause 9A.

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

Page 6, after line 39—After clause 9 insert:

9A—Report to Legislative Review Committee in relation to section 7A of Criminal Law (Sentencing) Act 1988

(1) The minister must, at the end of two years from the commencement of section 6, appoint a person to conduct an inquiry into—

(a) the operation of section 7A of the Criminal Law (Sentencing) Act 1988 as amended by section 6; and

(b) the likely impacts (including the costs) of extending the definition of 'prescribed summary offence' in that section to include a broader range of summary offences.

(2) A report on the inquiry must be prepared and laid before the Legislative Review Committee of the parliament.

This provides for an inquiry into the operation of the right of victims to present their impact statements for indictable and summary offences causing death or total incapacity and also the impact of extending these rights to victims of crimes resulting in serious harm.

Previously, when I moved unsuccessfully an amendment to extend the rights of victims to deliver impact statements, the government argued that extending the circumstances in which a victim could deliver a victim impact statement would result in further delays and increase case loads in the Magistrates Court and clog up the court system in general.

I do not believe that the impact on courts will be as severe as the government has suggested; the benefits to victims will far outweigh that. Furthermore, the number of victims who would choose to take up this option for summary offences would be low and would not, in my opinion, significantly hold up the courts.

This amendment provides for a person appointed by the minister to conduct an inquiry into the amendments on the second anniversary of their commencement. I think that a suitable person would be independent and in a position to conduct a robust inquiry—for example, a judicial or former judicial officer. This amendment will provide a good opportunity to review the effectiveness of these very important changes.

The Hon. P. HOLLOWAY: I move:

Amendment of amendment No. 1 [Darley-1]—

Proposed new clause 9A(2)—Delete 'prepared and laid before the Legislative Review Committee of the Parliament' and substitute:

provided to the minister and the minister must cause a copy of the report to be laid before each house of parliament as soon as practicable after receipt of the report.

Mr Darley's amendment requires the minister to appoint a person to conduct an inquiry into section 7A of the Criminal Law (Sentencing) Act 1988 as amended by section 6, that is, the inclusion of 'prescribed summary offence' and the impacts of extending that definition to include a broader range of summary offences.

The amendment further requires a report to be prepared on the inquiry conducted and laid before the Legislative Review Committee of the parliament. All of this is required of the minister at the end of two years from the commencement of section 6. The Hon. Mr Darley recently moved a motion, during private members' business, as follows:

That the Legislative Review Committee inquire into and report on:

1. The effects on the court system and its participants of extending the right for victims to deliver a victim impact statement in any court to cases where the defendant has been convicted of a summary offence that has caused serious harm...

2. The current effects and consequences for the court system and its participants of allowing a victim to submit a victim impact statement in the court for an indictable offence.

3. The types of systems, facilities and services that should be in place to aid and assist victims involved in the criminal justice system.

4. Any other relevant matters.

The justification for the inquiry, as stated by the Hon. Mr Darley, was that he did not accept the government's reasoning in not supporting his amendment to extend the definition of 'prescribed summary offence' to include serious harm.

I note the debate on the motion to seek an inquiry from the Legislative Review Committee on these matters has been adjourned. Upon consulting with the Victims of Crime Commissioner, the government does consider that there is merit in reviewing the operation of section 7A as amended under the Criminal Law (Sentencing) Act 1935 and the impacts of extending the definition of 'prescribed summary offence'.

However, the government does not support the aspect of this amendment which requires provision of the report by the minister directly to the Legislative Review Committee of the parliament. In the spirit of compromise, and in an attempt to ensure that the bill is passed, the government has filed an amendment, which alters the Hon. Mr Darley's proposed new clause in a minor way. Specifically, the government seeks to alter the Hon. Mr Darley's proposed new clause 9A(2) by requiring a copy of the report on the inquiry to be laid before each house of parliament as soon as practical after receipt of the report by the minister. This is consistent with the approach taken in other statutes, where there is a legislative requirement for a report to be produced after a period of time has passed. I urge members to support the government's amendment to the Hon. Mr Darley's proposed new clause 9A(2).

The CHAIRMAN: I ask the minister to move his other amendments as I intend to put them first.

New clauses 9A to 9D.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 39—After clause 9 insert:

9A—Amendment of section 64—Arrangements may be made as to manner and time of payment

Section 64(1)—After 'pecuniary sum' insert:

(other than a VIC levy)

9B—Amendment of section 70I—Court may remit or reduce pecuniary sum or make substitute orders

Section 70I(3)—After paragraph (a) insert:

(ab) defer payment of the pecuniary sum in whole or part until such time as the Court thinks fit, being a period not more than 2 years after the date on which the Court reconsiders the matter under this section; or

9C—Repeal of Part 9, Division 3, Subdivision 5

Part 9, Division 3, Subdivision 5—delete Subdivision 5

9D—Amendment of section 70L—Community service orders

Section 70L—After 'pecuniary sum' insert:

(other than any part of the pecuniary sum that is comprised of a VIC levy)

These amendments correct the anomaly I referred to earlier in my comments on clause 1.

New clauses 9A to 9D inserted.

The CHAIRMAN: We now have the Hon. Mr Darley's proposed new clause 9A before us and the minister's amendment.

The Hon. S.G. WADE: I will comment on behalf of the opposition. I do not agree with the minister's description of the amendment being a minor change. To say that a report that was previously intended for a parliamentary committee is now to go back to a minister and be tabled in parliament is not a minor but a fundamental change. The opposition is attracted to the Hon. Mr Darley's proposed new clause, because you have to ask yourself: if the minister appointed the inquirer, which both proposals envisage—the minister regards that person as an appropriate person to undertake an inquiry and the report has been completed—would it not be better for the report to go to a committee that represents cross party members who can give broader consideration to a matter than any one individual might be able to?

It also gives the committee an opportunity to consult with stakeholders. It may well be that a victims' support service or organisation involved in the criminal justice system or prisoner support—a range of people—might want to make comments to the Legislative Review Committee. The opposition, faced with the alternatives, prefers the proposal of the Hon. John Darley. The opposition welcomes the government's willingness, at least on this occasion, to look at a workable solution. After all, we now have the government supporting a review. We were told, 'Don't worry about it; we know that the floodgates will open and the Magistrates Court will collapse.' Now the government is supporting a review, and we acknowledge that.

The Hon. P. HOLLOWAY: The report is in two years. It is extraordinary that the opposition is saying that this report should go to a committee of the parliament but not be laid before both houses of parliament. If the government's amendment to this is not carried, we will not support the rest of the Hon. Mr Darley's proposed new clause.

The committee divided on the Hon. P. Holloway's amendment:

AYES (12)
Bressington, A. Brokenshire, R.L. Finnigan, B.V.
Gago, G.E. Gazzola, J.M. Holloway, P. (teller)
Hood, D.G.E. Hunter, I.K. Parnell, M.
Winderlich, D.N. Wortley, R.P. Zollo, C.
NOES (9)
Darley, J.A. (teller) Dawkins, J.S.L. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.

Majority of 3 for the ayes.

The Hon. P. Holloway's amendment thus carried; new clause as amended inserted.

Clauses 10 to 12 passed.

Clause 13.

The Hon. M. PARNELL: I move:

Page 8, lines 17 to 20—delete clause 13 and substitute:

13—Amendment of Schedule 2—Exempt agencies

Schedule 2—after paragraph (k) insert:

(ka) the Commissioner for Victims' Rights, in respect of functions involving the provision of assistance to particular victims (but not functions involving the provision of assistance to victims generally or any other functions);

This is a very straightforward amendment. It seeks to modify the government's insertion of the Commissioner for Victims' Rights into the list of exempt agencies under the Freedom of Information Act. To briefly explain, members would be aware that under the Freedom of Information Act the default position is that we are entitled to see documents. Section 12 of the act provides:

A person has a legally enforceable right to be given access to an agency's documents in accordance with this act.

That is the starting position. The act then provides that there are exempt documents and there are exempt agencies. When it comes to exempt documents, we are very familiar (especially those of us on the cross benches and opposition benches) with cabinet documents being restricted—we never get to see those—and there are other documents that require consultation. However, when it comes to exempt agencies, the inclusion of an agency in this list basically means that every single document it holds is exempt and we cannot get it under freedom of information.

I do not think that is appropriate for every document held by an agency. In fact, if you go to schedule 2 of the Freedom of Information Act, Exempt Agencies, you will find that even agencies such as the police are not absolutely exempt; only certain of their functions are exempt, such as Special Branch, the Operations, Planning and Intelligence Unit, and the Anti-Corruption Branch. We cannot see the documents for certain areas of their work, and I believe that the same approach should apply when it comes to the Commissioner for Victims' Rights.

In other words, let us determine what documents the commissioner holds that ought properly be protected. We should not have access to those. My amendment provides that those documents are ones that involve the provision of assistance to particular victims. So, we do not need to see individual victims' files, but there are documents held by the commissioner that are genuinely in the public interest, and we should be able to access them under the Freedom of Information Act.

I mentioned in my second reading contribution that I have, in fact, lodged a freedom of information application, and, as I understand it, the commissioner had to go to some length to satisfy my request because there were many hundreds of individual victim files that had to be gone through. I do not think we need to put the commissioner to that trouble; nevertheless, there are important documents—relating to law reform, for example—that we should be able to access.

My amendment is very simple. Basically, it accepts that the Commissioner for Victims' Rights can be added to the list of exempt agencies but only in respect of functions involving the provision of assistance to particular victims, not functions involving the provision of assistance to victims generally, or any other functions. In other words, my amendment proposes to keep confidential—secret, if you like—documents that relate to individuals, but allows any member of the community to apply, under the Freedom of Information Act, for access to other documents.

The Hon. P. HOLLOWAY: The Hon. Mr Parnell has filed an amendment that grants the Commissioner for Victims' Rights the status of exempt agency under the Freedom of Information Act in accordance with the government measure, but seeks to place unworkable and ambiguous limitations upon that exemption. This amendment should be opposed for a number of reasons.

A person can currently make an application for access to documents held by the Office of the Commissioner for Victims' Rights, as it constitutes an agency as defined under section 4 of the Freedom of Information Act. Under such an application documents of any type are able to be accessed by an applicant unless the said documents fall under section 20 of the Freedom of Information Act, whereupon access can be refused by the agency—in this case, the commissioner's office.

Under the current provisions of the Freedom of Information Act 1991, the commissioner could not refuse access with respect to the bulk of documents in his possession, and this has caused the Commissioner for Victims' Rights significant alarm, enough for him to lobby for exempt agency status under schedule 2 of the Freedom of Information Act. There is good reason for this: that is, to ensure that victims of crime in South Australia and persons generally can have confidence that the documents received, generated and possessed by the Commissioner for Victims' Rights, in accordance with his prescribed functions under section 16 of the Victims of Crime Act 2001, are not at risk of disclosure to a third party.

Much of the information held by the commissioner is of a highly sensitive and personal nature. Victims of crime—and indeed the public of South Australia—need to have confidence that their interactions, communications and matters generally raised with the commissioner's office will not be released to an applicant under the Freedom of Information Act. Classifying the Office of the Commissioner for Victims' Rights as an exempt agency pursuant to schedule 1 of the act as proposed in this bill is the only means by which this can be achieved.

This amendment only affords exemption to the commissioner under the Freedom of Information Act 1991 for functions involving the provision of assistance to particular victims, but not functions involving the provision of assistance to victims generally, or any other functions. Therefore, under this amendment, documents that relate to specific and identifiable persons who are victims of crime in the possession of the commissioner will be protected, but those who do not currently fall within the exemptions of the act will not be. The task will therefore fall upon the commissioner to plough through each and every document to determine whether each constitutes an exempt document or relates to a particular victim.

What is not considered by this amendment is where the case of a particular victim forms the basis for a law reform measure or is referred to in correspondence to other justice department stakeholders for the purpose of the commissioner advocating on his or her behalf. Such correspondence is originally based on the case of a particular victim, but will often culminate into content regarding policy decisions and internal practices of an organisation. This is most suitably demonstrated by a reference to an agreed victim who has been advised by the Office of the Director of Public Prosecutions that there is no reasonable prospect of conviction on a case. That is not the only reason this amendment should be opposed.

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

The use of the phrase 'provision of assistance' is to be criticised in that it is difficult to establish specifically what this means. Does it relate to written correspondence or communications to a victim, or does it also extend to minutes to various stakeholders? Most functions performed by the Commissioner of Victims' Rights prescribed under section 16 of the Victims of Crime Act could be considered as providing assistance in one form or another.

Examples of the types of correspondence or documents generated or received by the commissioner include letters or telephone calls from victims and applications to the Attorney-General for ex gratia payments. Minutes are also prepared by the commissioner to the Attorney-General in relation to legislative amendments and/or complaints about public officers from other government agencies. Much of the information is of a sensitive nature and, at times, remains uncorroborated or unsubstantiated until further investigations are carried out. The amendment is not workable and creates more ambiguities than it solves. For this reason, the amendment should be opposed.

The Hon. M. PARNELL: Just in response to what the minister has said, in earlier debate on this bill, various members recounted their dealings with the Commissioner for Victims' Rights. The minister has basically just told the committee that, as a result of the difficulty of having to go through lots of files, the commissioner sought some protection. I think I am at liberty to say that I have had discussions with the commissioner as well, because I do not want to put the commissioner and his fairly small staff in a difficult position with an onerous workload. It is certainly my understanding from those communications that the commissioner is very comfortable with the type of approach that I am taking, because it does not involve him having to go through individual client files, if we can call them that.

The other types of information that the minister referred to, such as law reform submissions, complaints about the judiciary, and things like that, are genuine public interest documents that I think members of parliament, in particular, have a right to know about, because we are ultimately responsible for all of these organs of the state and their proper functioning. So, there is nothing in my amendment that I believe is unworkable. I think that it strikes the right balance between making sure that individuals can communicate with the commissioner with confidence and that their information will be treated confidentially, and there are other provisions in the legislation that relate to that. However, when it comes to the right of citizens to access documents held by government agencies, I do not believe that it is appropriate to have a blanket prohibition which basically says, 'Any document held by this agency is not to be disclosed under freedom of information.' I do not believe the amendment is unworkable. I think it actually strikes the right balance, and I urge all members to support it.

The Hon. DAVID WINDERLICH: Will the minister advise what other agencies are exempt in this way? For example, is the Department for Families and Communities and its child protection functions exempt in the way being proposed?

The Hon. P. HOLLOWAY: The following are exempt agencies: all royal commissions; the Motor Accident Commission in respect of any matter relating to a claim or action under part 4 of the Motor Vehicles Act; the Essential Services Commission in relation to various information; the Auditor-General; the Attorney-General in respect of functions related to the enforcement of criminal law; the Parole Board; the Solicitor-General; the Crown Solicitor; the Director of Public Prosecutions; the Ombudsman; the Police Complaints Authority; the Public Trustee in respect of functions exercised as executor, administrator or trustee; SAFA; the Local Government Financing Authority; the South Australian Superannuation Fund Investment Trust; a minister of the Crown in respect of the administration of the former South Australian Development Fund or the Industry Investment Attraction Fund or a fund substituted for the Industry Investment Attraction Fund; South Australia Police in relation to information compiled by the former Special Branch, the former Operation, Planning and Intelligence Unit or the Operations Intelligence Section or a body substituted for the Operations Intelligence Section or the Anti-Corruption Branch; and the Local Government Association.

The Hon. R.L. BROKENSHIRE: Family First supports the Hon. Mark Parnell's amendment. I put on the public record that we as a party and I personally have the utmost respect for the way in which the commissioner goes about his work. I worked with the commissioner when I was the police minister, and he is a person with high professional ethics and integrity. However, having said that, whilst we need checks and balances in relation to FOI so that we do not breach the confidentiality of victim's statements and correspondence with the commissioner, I believe the Hon. Mark Parnell has explained adequately that those checks and balances are there.

However, when it comes to general correspondence and processes between, for example, the Attorney-General's Office and the commissioner's office, I think members of parliament in particular should have access to that sort of information. One of the things that is frustrating me at the moment is that, time after time, there is a dumbing down and closing off of opportunity for members of parliament, in their role of representing constituents, to get basic information through the FOI process. That is why we have already flagged in this chamber that we will be moving amendments in relation to that issue. I do not think it is in the best interests of the public to put a blanket ban on any access by members of parliament or others to all documentation relating to the commissioner's office, and that is why we support the amendment.

The Hon. S.G. WADE: In accordance with the concerns expressed in the House of Assembly by the shadow attorney-general and also in this place by myself, the opposition has already indicated that it has concerns about the government's proposal to provide such a blanket exemption. In our view, the government's concerns expressed in the chamber tonight are basically requiring too much of legislation. Legislation always needs to be interpreted. That is why agencies have policy documents and operational manuals. FOI is not always easy. FOI laws, and exemptions under those laws, need to be interpreted, and that is why CSO advice is available.

In fact, I thought the minister, in answer to the question asked by the Hon. Mr Winderlich, highlighted that these provisions are already being interpreted. The minister referenced the Motor Accident Commission, which has an exemption which is limited: it is limited to accept in relation to any claim or matter. I cannot see why the Hon. Mark Parnell's statement involving the provision of assistance to particular victims is any more obtuse or difficult to interpret or understand than the MAC exemption. In that context, I imagine that the Commissioner for Victims' Rights will seek advice from the Crown Solicitor's Office, just as the Motor Accident Commissioner, in the interpretation of responsibilities under the FOI act, also probably sought advice from the Crown Solicitor's Office.

I also indicate that, in that context, if the government had the spirit to do so, considering this amendment was tabled some time ago, it might have come with words to tighten that statement. To expect it to turn into some operational manual, such as the minister's recounting of point by point, is expecting far too much of legislation. It would bog down the parliament and involve us too much in the administration of agencies, and it would not support the principles of FOI. On balance, the opposition will be supporting the amendment of the Hon. Mark Parnell.

The Hon. DAVID WINDERLICH: I will also be supporting the Hon. Mark Parnell's amendments. I think that the default position in a democracy is openness. You need to argue the case every time. I think the default position is openness; anything that departs from that has to be argued on a case-by-case basis.

I notice in the disturbingly long list of exemptions given by the minister that there seem to be three categories: there are commercial entities, such as SAFA or, perhaps the Motor Accident Commission; there were specific functions—limited exemptions—for the Anti-Corruption Branch of SAPOL; and there were absolutely inexplicable ones, such as the Local Government Association. Why it would need an exemption is absolutely beyond me.

One that was not on that list, unless I misheard it, was Families and Community Services. That seems to me to be, in many ways, the closest parallel, when one is talking about dealing with sensitive details of individuals and individual cases. It seems to me that that is the closest comparison to this case in relation to victims of crime.

I really cannot see a good reason why one would give exemption to a whole agency. There are already far too many exemptions; no wonder this is known as the state of suppression. I will be supporting the Hon. Mark Parnell's amendments.

The Hon. P. HOLLOWAY: As I indicated, I think the great regret, if this amendment passes, is that it will create a whole lot of unnecessary confusion in relation to its meaning. Clearly, the list of exempt agencies, in terms of the Motor Accident Commission, provides 'in respect of any matter relating to a claim or action under part 4 of the Motor Vehicles Act'. That is pretty clear. Of course, there has to be some interpretation, but, ultimately, its meaning is fairly clear. I suggest that the same is not so when it comes to the particular amendment moved by the Hon. Mr Parnell, which provides:

The Commissioner of Victims' Rights, in respect of functions involving the provision of assistance to particular victims (but not functions involving the provision of assistance to victims generally or any other functions);

The fact that it is so qualified is what creates ambiguity in the system. However, the tragedy of this amendment, which clearly will pass because it has the numbers to do so, and if this bill were to go forward (and I think that is unlikely given the amendments that have been moved) it will undermine the confidence of any victims who want to go forward and supply information to the agency if they know that it can be used potentially for political purposes. Let us be blunt. The main use of the Freedom of Information Act in this state is for political purposes. We had a few—

The Hon. R.D. Lawson interjecting:

The Hon. P. HOLLOWAY: Well, it is not an attitude, Mr. Lawson; it is plain fact. The principal purpose of the Freedom of Information Act is to gain media traction. Everybody knows that. I am surprised that the Hon. Robert Lawson thinks that it has some purer motive. If a document is obtained under FOI, it almost has some quasi-religious significance as though it is at a higher level. Because it has 'under FOI', it has some—

The Hon. R.D. Lawson interjecting:

The Hon. P. HOLLOWAY: It is not a rarity. Far more documents are released now than there were under the legislation of the Hon. Robert Lawson. I remind the committee that that was extensively amended just after the period he was in government. Far more information has been released under FOI in recent times than there ever was under the previous government. That is a simple statement of fact.

In question time recently, the Hon. Mr Brokenshire was complaining that the government actually released information before an FOI was to be given out. It was not about whether or not you released the information; it was about the quasi-religious significance that was given to the label 'FOI'.

To get back to the point in hand here, if the victims are to know that personal information can now be used and used politically—because, make no mistake, that is the implication of this particular clause, that it can be used and released—then I think victims will be much less likely to use the services of the Office of Victims' Rights and I think that will be a tragedy.

Let us have none of this pretend concern that members of the opposition in particular are putting up that they are really concerned about victims' rights. If they were concerned, they would not put the personal details of victims at potential risk of exposure as they will be doing if they support this amendment.

The committee divided on the amendment:

AYES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Parnell, M. (teller) Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Winderlich, D.N.
NOES (6)
Gago, G.E. Gazzola, J.M. Holloway, P. (teller)
Hunter, I.K. Wortley, R.P. Zollo, C.
PAIRS (2)
Lucas, R.I. Finnigan, B.V.

Majority of 7 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 14 and 15 passed.

New clause 15A.

The Hon. P. HOLLOWAY: I move:

Page 9, after line 6—

After clause 15 insert:

15A—Amendment of section 32—Imposition of levy

Section 32(8)—delete subsection (8)

I have gone through the ritual of moving this amendment. I am afraid this bill is now so fatally flawed that it probably has little purpose.

Members interjecting:

The Hon. P. HOLLOWAY: It is a fact. It is not going anywhere, is it? You've killed it.

New clause inserted.

Clause 16 passed.

Title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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