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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-08-30 Daily Xml
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Bills

Victims of Crime (Compensation) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (16:22): 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. C. BONAROS (16:23): I move:

That this bill be now read a second time.

The Victims of Crime (Compensation) Amendment Bill seeks to legislate fairer outcomes for victims in this state. There is a body of work that needs to be undertaken to pass the two key reforms that I am seeking to legislate in this particular bill, particularly in relation to communication partners, but this is a simple bill and I would like to think it falls in the category of no-brainers.

The Victims of Crime Fund was established to recognise victims of crime, establish principles governing how victims are treated, assist recovery and provide a statutory compensation scheme to those most directly affected by crime. Section 23(a)(i) of the Victims of Crime Act limits an order for statutory compensation to only three-quarters over any amount that exceeds $2,000, which means that a victim has to make up the shortfall or, perhaps more concerning, not be able to access important follow-up medical or other treatments they need as a result of being victimised because they simply cannot make up the shortfall.

The Law Society of South Australia has been actively advocating for the repeal of section 23(a)(i) in recent years. In a letter to the Attorney dated 15 July last year, it made the following submission, and I quote:

The effect of this provision is that for victims who are to be compensated for economic loss and/or medical expense payments that exceed $2,000, they will only receive $2,000 plus 75 per cent of the remainder of the compensatory award. The society considers this compulsory reduction in entitlements as unjust to victims and without justification on financial grounds given that the Victims of Crime Fund can comfortably afford to pay victims of crime their full award of compensation.

The society is aware of a number of cases where this arbitrary reduction of compensation has caused great hardship to victims, compounding the physical and psychological stress of trying to recover from their injuries. For example, domestic violence victims with broken teeth have been forced to make up the shortfall to pay for expensive dental surgery due to the scheme automatically deducting 25 per cent in medical expense payments. Long-term members of the local community who do not yet have permanent residency and therefore do not have full access to Medicare or Centrelink have had to pay thousands in out-of-pocket expenses for medical treatment following injuries sustained at the hands of violent offenders and suffer further financial hardship as a result of being unable to work or access Centrelink payments.

The bill also seeks to implement a second key reform to enhance the capacity of victims to seek compensation by prescribing a fair increase in costs to legal practitioners, which at present is a mere $1,400, indexed. I challenge anyone in here to find a lawyer who would be able to do that based on those rates, and they are currently prescribed in schedule 2 of the Victims of Crime (Statutory Compensation) Regulations 2019. If anyone has visited a lawyer lately, I hazard a guess that they would know that $1,400 is not going to get you very far at all. Referring to the Law Society letter again, it stated:

This fee vastly undervalues the work required to properly run a victims of crime claim. Representing a claimant in a victims of crime matter involves meticulous evidence gathering and complex negotiations with the state with respect to the level of compensation to be awarded. This may include arranging several medical reports, assessing tax documents and Centrelink payments and examining school records, among other investigative processes.

The work involved in gathering evidence with regard to heads of damages is comparable to, if not more complex than, the process of representing a claimant in a personal injury claim. Unfortunately, the current cost schedule has made it unviable for most practitioners to be involved in victims of crime matters, with numerous firms having ceased involvement in preparing victims of crimes claims.

The upshot of this is that victims have limited access to legal representation. The society is gravely concerned that a significant number of victims who have no other recourse for redress other than to make a claim under the act will not have access to legal assistance. The society considers that a modest increase in the legal costs to $2,200 per claim, while it still would not reflect the work involved, would incentivise more practitioners, particularly sole practitioners and those in regional areas, to take up victims of crime matters. This would significantly increase the capacity of victims to pursue compensation for their injuries, particularly in regional and remote areas where access to legal representation is especially limited.

I think it is really important, based on what I have just said, to emphasise that this is not a cash grab for lawyers by any means. It is a fair and reasonable increase. The sad reality is that if you are a victim of crime—and those are the only people we are talking about here—under the current arrangements you are going to struggle to get legal representation in terms of getting compensation that you are rightly entitled to.

I have taken the liberty in drafting this bill to round the figure asked for by the society to $2,500 to account for inflation and the potential for the passage of time before the commencement of the bill. I am sure if it lands somewhere around that mark the objectives of this bill will be met. Of course, I and I am sure others are open to having further discussions about how that increase is achieved. If the government proposes an amendment to the regulations for that part of the bill, that would also be perfectly acceptable. I think the bottom line is that this is an issue that just needs to be addressed, however we get there.

It is also important to note that any increase would have an insignificant impact on the Victims of Crime Fund. As at June of last year, the fund held more than $190 million. The Attorney-General's 2021-22 annual report shows the government collected $37-odd million in victims of crime levies, just under $3 million shy of the budget expectation for that financial year, but only made $16-odd million in payments.

The 2022-23 budget estimates that approximately $41 million will be collected but $27 million of that is all that will be paid to victims. So it is fair to say that, for a $190 million fund, there is significant room for the increases that we are proposing and that the Law Society has advocated for—importantly, in line with the purpose of the fund, not to prop up state budgets but to compensate victims for their injuries appropriately.

The Law Society has made the very valid point that the current fee vastly undervalues the work required to properly run a victims of crime claim. We know that. We know that a lot more work goes into what is required than you can do with $1,400. We know that there are now fewer and fewer lawyers who are actually willing to do this work because, frankly, they cannot afford to because of those very low figures.

It is a modest increase, and I am sure many would say it is not enough, but I think they have been very fair in their assessment and have said, 'If we do this, we will incentivise more lawyers to take up those cases on behalf of victims.' It might particularly incentivise lawyers in regional areas. It might particularly incentivise sole practitioners. They are people who, at the moment, are saying, 'We can't touch these claims because they are simply financially unviable for us.'

The person who suffers at the end of that is a victim of a crime, someone who has been subject to an attack or some sort of incident, which in many instances has left them with debilitating or lifelong injuries. It is not fair on victims to have (a) experienced that sort of atrocity at the hands of an offender and (b) then not be able to claim from the very fund that was established to ensure that we compensate them for the injuries that they have sustained as a result of violence and crime.

It is for those reasons that I have introduced this bill. I hope that the government will consider this favourably. I hope that they will be open to discussions around changes to the regulations. As I said, it does not matter how we get there; there is always more than one way to skin a cat. Let's just get there and fix this for victims of crime.

Debate adjourned on motion of Hon. I.K. Hunter.

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