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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-31 Daily Xml
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VICTIMS OF CRIME (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (16:39): Obtained leave and introduced a bill for an act to amend the Victims of Crime Act 2001. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (16:40): I move:

That this bill be now read a second time.

I rise to introduce this bill and encourage my colleagues to have a look at it, as I know that all my colleagues have an interest in fairness for victims of crime. The bill seeks to amend the Victims of Crime Act 2001 in a number of ways, some of which I acknowledge have been debated in this place before and passed, and I will come to that later in my second reading explanation.

First, I want to go through some history of what was once known as criminal injuries compensation legislation and then victims of crime legislation. There has been criminal injuries compensation legislation in South Australia since 1969. However, after a few decades that act and the general approach to looking after victims of crime was reviewed from 1999, under the former government, and was changed to be the Victims of Crime Act as we now know it.

The landmark legislation reformed the former act in creating a number of principles on how victims were treated by the justice system and creating what was then a victims of crime coordinator. That role has since been changed to a Commissioner for Victims' Rights, a job I believe very ably filled in an extremely dedicated way by commissioner Michael O'Connell, whom I will come back to a little later in my remarks.

The history I have just outlined in brief has, at its base, the question of compensation. We all know that compensation is not the only way to bring about healing and restoration for the harm caused by criminal offending, however, it has been a longstanding principle as a means of rectifying the harm suffered by others, particularly so when there are limited opportunities for civil remedies against offenders as (a) the victim might not be able to afford legal representation to pursue compensation, and (b) perhaps more to the point the offender might not be able to pay or, indeed, be able to be identified or located.

For this reason, a fund has existed for decades to provide money for compensation for victims. It seems to be generally accepted by those who have had dealings with victims of crime compensation that it was very conservatively managed by the government of the day to ensure the fund had money to cover future claims. The levy for criminal injuries and now victims of crime has steadily risen, but never so much as it did in 2011 when it was doubled from $30 to $60.

We have seen in recent years two things: that significant increase but also the continued flat line in the maximum compensation available to victims. The flat line on that maximum means that compensation levels down the chain remain flat and not keeping pace with the cost of living. It is sad that some other things in this place are rectified swiftly to ensure revenue keeps coming in and people get paid a fair wage and yet compensation for victims has lagged.

The Hon. Stephen Wade has told this place, as have others but he in a longer historical analysis, that the maximum payable under either act has been $1,000 in 1970, $2,000 in 1974, $10,000 in 1978, $20,000 in 1987 and $50,000 since 1990. It is quite simply long overdue that this maximum be further reviewed, given that $50,000 in 1990 terms is worth approximately $90,000 in 2012. As the Hon. Mr Wade said, Queensland and Western Australia have limits of $75,000, Victoria has $60,000 and we are ranking equal fourth with other jurisdictions.

Having gone over the history of this, I note that the former attorney-general, the Hon. Chris Sumner, observed in 1987 that 'lifting the maximum to $10,000 in 1978 made South Australia the highest in the country'. In 1987, he observed that 'lifting the limit to $20,000 was bringing South Australia into line with the majority of jurisdictions in the country'.

The former Labor attorney-general was proud to say his government was taking us to the front of the pack, or at least in the lead pack, with the maximum, but under Labor in South Australia today we have sadly fallen well behind the peloton. So proud in fact was former attorney-general Sumner in 1987-88 that he sent copies of the bill to the United Nations, New Zealand, New South Wales and Victoria, as they had expressed an interest in copying the legislation.

I acknowledge that the former attorney-general, the Hon. Trevor Griffin, in a cabinet submission in March 2001 advised against lifting the maximum at that time. He said, rightly, that it would lift the point scale generally. I think that is understood by everyone involved in this debate from all sides of politics. We are going into that issue specifically and, again, I will get to that shortly. However, the key point the former attorney-general made in 2001, in declining to lift the limit, was that the consultation did not ask for that change at that time.

The Law Society told the consultation they wanted a CPI increase to the $50,000 maximum going forward, and we are trying to do that today. The Victim Support Service said at the time that its main concern was the generally low level of awards due to a legal precedent—and, again, I will come back to that issue during the course of my remarks. However, calls to lift the maximum are now coming loud and clear from the community and are reflected in this place, and the time has come for change.

Before moving on to the important contributions of others in this debate, I acknowledge what the Hon. Mr Wade also highlighted recently on Adelaide radio, that the government's moves on criminal asset confiscation presently before this place do potentially threaten the inputs for the Victims of Crime Fund by diverting asset seizures to the work of the courts rather than to victims. He has a valid point. Figures I will give the council later show that recoveries from offenders comprised about 20 per cent of revenue in 2011-12.

The levy stands to potentially help the fund stand on its feet without criminal assets confiscation. Perhaps that is the government's true agenda—to set this fund up to no longer be reliant on the variable results of assets confiscation, stand on its own on levies alone—and yet whatever moneys, windfalls, you could argue, come spasmodically through assets confiscation for courts funding purposes. This is debate for another day, but it does relate to the fund we are talking about in this bill.

I acknowledge at this point the good work of the Hon. Ann Bressington MLC on the Victims of Crime (Compensation Limits) Amendment Bill that she had moved. We were not clear about the fate of that legislation when we moved this bill and apologise if we are at cross-purposes with what the Hon. Ann Bressington might have been intending with her bill. Our bill is similar to hers in respect of what she was pursuing, and there is likely majority support in this place for the principle of doubling the maximum compensation and indexing it into the future. That is positive.

However, this bill is a broader bill dealing with other matters that I will soon go into, and it is an opportunity for other honourable members to test the parliament on reforms they would like to see to the system. In fact, if the government does not like $100,000, give us another figure—go ahead; let's have a genuine debate. Here is the opportunity to reform a compensation system that most argue is overdue for reform.

That brings me to the victims of crime levy. The Rann and Weatherill Labor governments have stockpiled the levy, and never faster than since it doubled the levy from $30 to $60 in 2011, based on a recommendation of the Sustainable Budget Commission, commonly known as the 'razor gang'. It said of the opportunity created from an increased levy:

The Fund can be used to provide payments to persons to recover from the effects of crime, assist in the prevention of crime or advance the interests of victims of crime.

That had a familiar ring to it, so we researched where we had heard it before. In 1987, former Labor attorney-general Chris Sumner increased the criminal injuries compensation levy, but not by as much as occurred in 2011, when it doubled. He said, when challenged by the then shadow attorney-general and later attorney-general, Trevor Griffin, on the breadth of offenders who would be hit with the expanded levy:

...in order to ensure there is sufficient money in the Criminal Injuries Compensation Fund so as to increase the amount of compensation available for victims and to provide money that can be used for other services to victims...

I emphasise that second point, and acknowledge that the government does make payments to the Victim Support Service, Yarrow Place and others. Here are some other relevant historical statements. Later that year, in April 1987, Mr Sumner told parliament that, by lifting levies, a bill amending the act would:

...overcome the most glaring anomaly and over time with the levy proposed that there should be more money available for criminal injuries compensation and other assistance to victims of crime...

Here is a case in point, a case that comes pretty close to home for members of the government. There are questions for the government arising from a chain of correspondence I have received under FOI laws between the Attorney-General and the Minister for the Status of Women. It seems clear that her advocacy during 2011-12 for the Victim Support Service to get more than their 2011-12 CPI increase paid off in the 2012-13 budget.

They did get an extension of services that they asked for in 2012 for 2012-13, even if the Attorney-General did tell the minister in writing in April 2011 that the tight budget meant there was no additional money to spend at that time, when the forward estimates actually showed an additional $15 million per annum in revenue to come in from the increased levy.

The Attorney-General told minister Gago in November 2011 that there was a budget of $27.7 million from the Victims of Crime Fund and that it was fully committed. He said, 'there are restrictions relating to the amount of expenditure allowed from the fund each year.' My question to the government is: who sets those restrictions? It does not sound as if the Attorney-General does; is it another area of government, possibly Treasury?

The balance of the fund for 2011-12 stands, according to the Auditor-General in his recent report to parliament, with a balance of $104 million, having increased by $28 million, an increase of over one-quarter in just one year. We foresaw that this fund would grow to $116 million this financial year and, on trend, would get to $181 million by 2013-14. We were only 10 per cent out this year. The surplus in the fund will keep going right up, but by what degree will victims see any benefit?

It begs the question: why increase the fund by so much so quickly? The government gets a budget benefit of being in the black overall, but this is a fund dedicated to providing compensation and services to victims of crime, not the re-election prospects of the government. Historically payments have been made to road trauma victims, Yarrow Place for sexual assault services, and the majority to the Victim Support Service, but also occasional payments to the Victims of Crime Unit headed up by Commissioner O'Connell, installation of CCTV, I believe, in courts for vulnerable witnesses, and a child witness assistance program.

They still have a budget line for those in their financial tracking systems but the latest data I have to hand—which I will go into in a moment—shows that to March 2012 nothing had been paid during 2011-12 for those occasional purposes for the Victims of Crime Unit, CCTV or child witnesses. I believe there is a case for more money to be paid to victim support services of various kinds, and hopefully the increased budget funding this financial year does relate to support, particularly to vulnerable or marginalised victim groups.

I invite the government to explain the composition of that budget announcement, given that we have the correspondence under FOI from the Victim Support Service on what they were seeking this financial year. This is what the fund activity was as at March 2012. Revenue total was $40 million, comprising $13.8 million from courts levies, $8.7 million from police levies, $2.3 million in interest, $7.9 million in recoveries from offenders, $6.2 million in appropriations, and $1.6 million in confiscation of profits.

So as I said earlier, that is $9.5 million in recoveries and confiscation of profits, some of which would be criminal assets confiscation—well over 20 per cent, in fact approaching 25 per cent, of all revenue in the last financial year to March. On the expenses side of it, it totalled $15.9 million: $9.4 million in compensation to victims, $1.57 million in grants to the Victim Support Service (I suspect that that was all it received that year), $74,000 to road trauma victims, $100,000 for sexual assault victims, $50,000 for Catherine House, $1.7 million in legal and professional costs, and $558,000 in ex gratia payments.

That does sound promising, but to March 2012 there was a $25 million surplus, with $40 million in revenue to March but only $16 million in expenditure. I put it to members that there is little likelihood that expenditure would have grown by much in the last three months of last financial year. In fact, the Auditor-General said that surplus was $28 million by the end of 2011-12.

That brings me to two of those expense figures: $9.4 million in compensation to victims and $1.7 million in legal and professional costs. I cannot tell, but somewhere in there is the estimated $1 million that, according to court documents, was allegedly defrauded from the fund. So, arguably, on the allegations, something like 10 per cent, if not a lot more, of the 2011-12 payments purportedly paid to victims were not to victims but allegedly to others for an inappropriate benefit.

That is the situation we have under this government, a government in a previous era that was proud of its world-leading stance for victims of crime. In 2012, we now have the fund growing exponentially due to a government policy to collect money in the name of victims but, on present policy settings, not to increase the parameters for money to be paid out to victims of crime, victim support services or crime prevention services.

Before I turn to the other aspects of the bill, I acknowledge that the government wants to ensure that it has money in the fund for unexpected claims due to issues arising overseas. I am told that we are the only jurisdiction that pays compensation for South Australian victims of criminal acts overseas, including to Bali bombing victims and to one family who lost a loved one in the September 11 terrorist attacks on the World Trade Centre, and that is commendable of the government and something we should be proud of.

I acknowledge that it is a risk difficult to quantify in the budget but, on current trends, I do not think that a fund is likely to grow without reform of the legislation to a degree that we need $170 million to $180 million sitting in the fund in just a couple of years' time. Lines 1 to 23 of the bill relate to matters of the maximum compensation payable and the indexation of that maximum that will, in turn, flow through to increasing the amount available to all victims on an indexed basis, and that is only fair, so I will not speak further on that matter.

However, I will point out the injustice the Victim Support Service adverted to back in 2001 in its submission to the former government and what advocates for victims for crime have told me. Ever since cases such as Bole from 1995, you would see a rape victim generally unable to get more than 12 points on the 50-point scale or, basically, $12,000 for non-economic loss. To me that is terrible—that is not keeping up with indexation—but that precedent keeps being applied.

For that reason, clause 7(3) of the bill provides by regulation a mechanism for the government to set a points scale for different types of physical and psychological injury (something we have with motor vehicle accident and injured worker compensation); that is, if you can satisfy criteria that you have certain injury, you should get close to a set level that would be established by regulation. We firmly expect that, in consultation with victims and the legal profession which represent them and support workers, such as the Victim Support Service, Yarrow Place and others, in relation to what would be fair and reasonable.

It is very odd that you could suffer an injury inflicted by a criminal offender, face uncertainty and get a markedly different result from the result you would get if you suffered that injury in a motor vehicle accident or in the workplace. It is time that victim of crime compensation matured, and we believe that that is the mechanism to achieve it.

Clause 8 puts clearly in place a system that we know, in practice, is determined on a case-by-case basis, but we want it made clear to victims that they have a right to a maximum of $6,000 in funding on an immediate basis to enable the alleged victim of a major indictable offence to relocate if they feel that their safety is threatened. In effect, this is to cover removal costs. No-one is going to be able to claim that if they do not feel they need to move as the payment is for relocation expenses. We do not want to see victims of crime fearful or waiting with the invoice from the removalist to see whether an offender is convicted before they are reimbursed for the cost of moving to a safer, secret location.

Clause 9 codifies what we want to see from this government—a special report looking into whether this act is working for victims, looking at what is being done in other jurisdictions. I note, for instance, that historically the concept of a victims of crime levy on criminal offenders was inspired by what the former attorney-general saw in the United States and ways to assist victims or, indeed, prevent people becoming victims of crime.

In short, this provision creates a transparent process before parliament on the state of play around the nation and world best practice for victims, and looking at ways in which we can make use of what is a rapidly growing fund in a proactive cost-benefit analysis for victims.

Before I close, I want to say clearly on record that I expect that this review would also look at three issues: firstly and critically, under the first head of review we want to ensure that the Commissioner for Victims' Rights is adequately resourced. We know that he and his staff work very hard; we get that in information from constituents who seek support services from his office. What extra help do he and his staff need? We want that looked at.

Secondly, lawyers complain that the amount they are entitled to under the fund for their costs is restricted. Let them make representation to the review. However, I have heard from several quarters that this is a problem and an impediment to seeing the current points system and cases like Bole tested in the courts as lawyers have no guarantee of being paid their reasonable costs for work on testing the common law precedents for injuries for their clients.

Of course, if the government sets a point scale for injuries as we propose in this bill, the scope for legal interpretation and legal costs ought to be significantly reduced; and having met with a lawyer who does so much work of a pro bono nature to help victims because of the poor payment structure at the moment, I know that is a matter that needs to be looked at.

Thirdly, we want to be sure that medical and allied health professionals are getting paid adequate amounts for their professional services producing expert reports from the fund. We do not want a situation where professionals will not do victim of crime work because there is uncertainty of payment or a poor payment for their reasonable costs for consulting with a victim and providing their opinion.

I hope it can be seen that this bill is an invitation to broadly review the Victims of Crime Act, focusing particularly on the question of compensation and expenditure from the Victims of Crime Fund. It is not just about lifting the compensation limit and thereby the awards to victims: it is about ensuring that we take a thorough review of the system for compensating victims, supporting them and funding services for them in the future.

It is a miscellaneous bill; it is open to reasonable amendment on any front within the act, and I again acknowledge that other colleagues are of a similar mind on issues with the legislation, particularly the maximum compensation payable. I commend the bill to the council.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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