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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-03 Daily Xml
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VICTIMS OF CRIME (ABUSE IN STATE CARE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 4312.)

The Hon. R.P. WORTLEY (15:56): The government opposes this bill, although it commends the sentiments behind the proposal put forward by the honourable member. It is recognised that the honourable member hopes to serve victims of abuse in state care, and that the goal of this bill is to recompense a group of victims who have endured incomprehensible injustice and suffering. The government praises this intention and also wants to ensure that this group of victims experience justice. However, the government is of the view that this bill does not appropriately deal with the extensive issues surrounding this subject.

The government is committed to responding to the needs of victims of sexual abuse in state care and has carefully deliberated on how to respond to this group in addressing the harm suffered by victims in state care on a number of levels. These include: the initiation of the Mullighan inquiry, the move to carry 49 of the 54 recommendations of the Mullighan Report, the increased funding of $2.24 million to the Director of Public Prosecutions to prosecute alleged perpetrators of sexual abuse, and the massive financial commitment ($190.6 million over four years) dedicated to improving the safety of children under the Children in State Care Inquiry.

Also, most importantly, in 2003 the government took up the former honourable member Pastor Evans' initiative and changed the law to remove the statute of limitations that prevented sex offenders from being prosecuted for offences that occurred before December 1982. This has seen about 40 offenders being found guilty of over 150 offences, including indecent assault, unlawful sexual intercourse, carnal knowledge and rape.

In further investigating the need to compensate victims in state care, the government reminds this council that it has also recently committed more than $7 million in additional resources to administer claims for compensation by alleged victims of abuse in state care compassionately and efficiently. This includes taking a sympathetic approach to applications for extension of time for litigants who wish to pursue their claims at common law where the state would not suffer insurmountable prejudice as a result of doing so.

The ex gratia payment system under the Victims of Crime Act provides an alternative avenue for claimants who cannot (due to the burden of proof) or choose not to bring their case before a court. Finally, the government has publicly apologised to victims in state care.

In turning to the bill, the government notes that it resembles that which was recently introduced by the Hon. Mr Brokenshire MLC, with some notable exceptions. The government opposes the bill for reasons similar to those raised in the course of debating the Brokenshire bill.

The effect of the Bressington bill is to introduce a dedicated compensation scheme under the Victims of Crime Act for victims who have been abused or neglected in state care. Whereas claims for victims of crime, including claims for ex gratia payments by victims of abuse in state care, remain capped at $50,000 under the act, this bill proposes to allow for a payment of up to $80,000 for victims who have been abused in state care.

Does this amount represent a cap where people are assigned a place on a scale similar to that which exists under the Victims of Crime Act, or is it an absolute amount where people who can establish an entitlement for $80,000 (for pain and suffering) are entitled to it? The government notes that under this bill it will also be required to compensate victims for costs and expenses associated with an application for an ex gratia payment, as well as costs associated with any other civil proceedings. The scheme also prohibits any requirement that victims sign confidentiality agreements and requires the government to make an apology to victims in state care that refers to the circumstances of the abuse or neglect as well as acknowledges that it is in breach of its duty of care.

The government opposes the bill on the basis that there are comprehensive legal mechanisms in place for victims of crime and on the basis of recent steps taken by the government to deal with the important issues of an apology and compensation to victims of abuse in state care.

The Premier has delivered a public apology on behalf of the parliament and previous parliaments to victims of abuse in state care. This apology was gracious and genuine. We believe that the apology by the Premier is more important than any statutory apology to victims of abuse. No argument has been put forward to suggest why such an apology would not suffice in the present circumstances, given its obvious importance to victims. Indeed, a statutory apology in the terms framed in the present bill has the potential to be fraught if special care is not taken, notwithstanding the best intentions of the drafter to frame the apology in a way that may not cause further distress to a victim. This is because of the bill's requirement to refer to the circumstances of the abuse.

There is also the difficulty that the apology, if it goes into detail about the alleged abuse, could expressly or implicitly identify a known person, including other victims or an alleged abuser, even though such a person had not been found guilty of any offence. This not only has the potential to cause distress to potential innocent third parties but it does not protect the government against liability and defamation by alleged perpetrators. We believe that the Premier's apology has achieved its objective. It was appropriate, sincere and magnanimous and afforded a further opportunity for healing.

The bill proposes to raise the compensation cap in some way to a maximum payment of $80,000. It also allows a claimant the right to pursue separate proceedings before a civil court. This is because a claimant will not be obliged to sign a waiver for damages or compensation that exist apart from the Victims of Crime Act. Furthermore, the government will be obliged to pay the costs associated with each of those claims. While the government expresses its deep concern about the costs of these proposals, which require virtually an open cheque-book, there is a dearth of information about how the compensation scheme will be funded. The source of revenue for these measures has neither been identified in the bill nor clarified by the Hon. Ms Bressington.

The government is sympathetic to the idea of generously compensating victims of crime, including victims of abuse in state care. It also recognises its obligation to the community to be economically responsible, particularly in this new era of fiscal austerity faced by governments worldwide in the wake of the global financial crisis and its own budgetary imperatives. In balancing these interests, the government believes that it has achieved the right balance in generously compensating victims in state care either through an ex gratia payment from the Victims Of Crime Fund or in responding to litigation compassionately.

The flexibility of the various compensation systems in this state mean that victims still have the right to pursue alternative remedies before a civil court. The design of the government's proposal to assist victims in state care under the ex gratia system, however, will give a helping hand to those who may experience genuine difficulty in proving their claims to the requisite legal standard; those who may be statute barred; those who may not receive adequate compensation under the Victims of Crime Act for a very old offence; and those who simply wish to have their claims resolved quickly.

The Attorney's ex gratia system is both flexible and generous in this regard. It provides for a maximum payment of $50,000, which compares very favourably to other schemes in Australia. The Attorney-General's comments in providing a sympathetic approach to the processing of ex gratia claims by alleged victims in state care also need to be noted.

The government is puzzled by the bill's proposal to eliminate the need for confidentiality under the ex gratia payment system. This bill precludes a claimant from being required to enter into a confidentiality agreement regarding the amount or the reason for payment. The interests of the parties, especially the victims of crime, stand to be protected by confidential proceedings. Confidentiality clauses are common and appropriate conditions of such payments. The preservation of confidentiality is also important and integral to the promotion of frank and open dialogue in the resolution of claims.

The government's response to the revelation of abuse in state care has been understanding and sensitive but still measured and responsible. The government's response has not been knee-jerk but based on a careful assessment of the needs of victims and responsible government. Although the sentiment of this bill is commendable, these matters are already being very appropriately addressed by the government. Therefore, the bill is opposed.

The Hon. A. BRESSINGTON (16:05): I thank all honourable members for their contribution on this most important bill. I understand very well why the government would not want to see a redress scheme set in legislation, but I remind members in this chamber and the government that it was the Premier himself who said that this payment would come from the Victims of Crime Fund; it was not my original idea. I am just providing a passage for the Premier to be able to keep his promise and to be the model litigant and make sure that these people do not suffer any more at the hands of the courts or anyone else. The state acknowledged its responsibilities to these people and it acknowledged that the abuse happened, and it was all very sincere.

I disagree with the Hon. Russell Wortley when he says that the apology should be enough. For example, if I ran over his child in a car and simply apologised, would it be enough? These people's life has been absolutely ruined. They have extensive medical costs, and they are unable to access the specialist care. Internal damage has been done to these men that has not been repaired or dealt with. Their digestive system has been completely screwed because of homosexual sex being forced on them when they were five, six or seven years old—at the hands of the state.

So, we can all sit back and say, 'Well, it's all been nice and fuzzy and warm, and we've apologised and we've said sorry; everybody should get on and heal now', but it is just not that easy, I am afraid. I am very pleased that the Liberal Party has indicated its support for this bill; even if it is just on principle, it is still a start. This government needs to be aware that this issue will not go away. These people need money from the government to be able to get on with their life. Some of them do not have a family, some of them do not have a home, and some of them live in cars—all because they were removed from their families and abused at the hands of the state.

We have a lot of catching up to do. I would much rather that we did not have to legislate this. I noticed that the Attorney-General was busily preparing guidelines for people to be able to access this money through Victims of Crime. They are still not released, so no-one actually knows what those guidelines are. We know now that the majority of people who were victims of abuse in state care will not be able to apply for money from this fund. It excludes the majority of those victims—something this government, in its responses over time on a number bills, has chosen to just ignore. Sweep it under the carpet!

This bill will at least put the matter on the map. It will at least send a message to the victims of abuse in state care that members in this place do care about them and their future—they do care about the abuse that happened and care far more than can be possible with just cheap words—sincere words but cheap.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Very briefly, I mention to the committee that I think the Hon. Ann Bressington raises a very good point: the Attorney-General has done guidelines on these matters. The guidelines should be a bill. We should have a dedicated statutory redress scheme, reviewable by this parliament, so that we can get justice for victims.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. A. BRESSINGTON (16:11): I move:

That this bill be now read a third time.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (16:11): The government does not support the bill, but we will not waste the time of the parliament by dividing on the third reading.

Bill read a third time and passed.

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