VICTIMS OF CRIME (COMPENSATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 June 2015.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (16:56): I rise to speak on the Victims of Crime (Compensation) Amendment Bill 2015 and, on this occasion, welcome this bill and indicate that the opposition will support the same. We do propose amendments, and I will refer to those shortly. Essentially, the bill is to amend the Victims of Crime Act 2001. The Victims of Crime compensation scheme compensates people who are injured by crime, and this, of course, can include mental as well as physical injury. There is no proposal to expand the area of compensation outside of that, but there is, currently, a proposal to expand the amount available in certain circumstances. There has been no increase in the compensation available under the scheme since 1990, with a maximum payout of $50,000.

Compensation is currently assessed on a scale of zero to 50 to reflect the extent of the loss, which is then multiplied by 1,000 to reach a final compensation figure. The Liberal and Labor parties, at the 2014 election, made commitments to double the maximum payout to $100,000. Each of the major parties promised a doubling of the grief payment from $10,000 to $20,000 and to allow children of victims of homicide to be eligible for that payment (it is currently only available to the spouse or domestic partner of a homicide victim). Additionally, there were promises by each party to double the funeral expenses from $7,000 to $14,000. If a victim had died as a consequence of an offence and a person is responsible for payment of the victim's funeral expenses they are able to claim for that expense.

The bill will do a number of things, including, firstly, to amend the scale of compensation from zero to 50 to zero to 60, with the compensation amounts assigned to each value increasing. This amendment aligns the scale with the Civil Liability Act 1936. Secondly, it removes the court's discretion to order costs alternate to those provided in the regulations, although this does not apply to the Crown if costs are awarded against the complainant.

Thirdly, it increases the payments through the regulations available to solicitors representing victims of crime, from $1,000 to $1,400. Fourthly, it increases payments through the regulations available to counsel representing a victim of crime, from $750 to $1,000 for preparatory work, and the first five hours of the hearing on an application and $200 an hour thereafter.

Fifthly, it creates an offence requiring that a claimant who receives compensation or damages from another source to notify the Attorney-General within 30 days, and there is a penalty of a $1,250 fine if that is breached. Sixthly, it allows the Crown Solicitor to disclose to a victim information relating to the whereabouts of an offender for the purpose of the service of documents.

Members will be aware, in reading multiple annual reports in recent months, the Auditor-General's Report and the like, that the Victims of Crime Fund now has well over $200 million in it. From our side of the house, we consider it scandalous that there has not been an upgrade of the maximum entitlement under this fund. It has always been understood that this is a payment that is not designed to fully compensate to the degree of the value of the loss or injury of the party.

It is a scheme which provides for some support and acknowledgement in the circumstances where people are victims of crime. Frequently, the offender or offenders are of impecunious means and/or in gaol; therefore, the capacity to be able to have some civil recourse is very often limited. This scheme has operated for many years—at least, I am old enough to remember (probably the Attorney does, too) when the criminal injuries compensation, which was its predecessor, had a maximum of $2,000.

In its day, I can recall seeking that maximum amount for a client in the Supreme Court as a result of the client being multiply raped after an armed robbery by some scoundrels. She suffered brutally from this and had considerable injuries, and she really had to go through quite an arduous process, including being available to be cross-examined and the calling of evidence, to be able to just line up for $2,000.

I suppose the objective of the scheme has always been that it would be relatively simplified, that there would be some attempt to resolve them early and that we would not be having extensive hearings on the application of this. That is probably the basis upon which the payments available to solicitors for doing these cases has been relatively low. There has been no incentive for them to go past putting in the application and trying to negotiate with the Crown the amount to be paid because the incentive for them to continue on and be paid anything but a pittance is diminished as a result of that payment.

In other words, if they are going to go on, go past what is offered from the Crown and actually take the matter before a judge to be heard on application, they are really going to be doing it for free because the costs schedule with it is so paltry that it is a disincentive to be able to fight on for a fair settlement in these cases. There has been need for reform for some time. We have plenty of money in the fund available to make good. I understand the effect of this legislation is that it will have a retrospective application so that it will apply to all events that have occurred after 1 July this year, so that for the last four months, when no doubt there have been some applications piling up in solicitors' offices, they can then progress to have the benefit of that. Sadly, in my view, if this had been dealt with promptly after the election we could have had this on 1 July 2014 and made some provision for those who have been waiting for some time to have some level of reasonable compensation.

The government's decision to go from a one to 60 model is consistent with what they have done in other jurisdictions in relation to motor vehicle claims in relation to compensation. I am not going to go on at length about that. It would spoil the one occasion that I am being complimentary of the Attorney in bringing this bill to the house. We do welcome the legislation, but to have introduced a one to 60 model in any of these I think has been not so much unfair but dismissive of the importance of recognising compensation for what it is and letting people have a false hope of some reasonable increase in the categories other than catastrophic.

This is the third time we have come to this parliament to find that the government have promised a lot and then, when it comes to the detail, it is great for the person who has been catastrophically injured at a very serious level, the very few who would ever have the chance of getting the $100,000 maximum, but for so many others they will have a relatively small increase. For many others, our understanding is that if there is an expectation of what you would have got under the act as it currently stands of, say, a $7,000 payment, the best you are going to get out of this new model, because the scheme has changed (we have gone to a one to 60 scheme), will be $9,000. I think there was an expectation that there would be some relative increase similar to the maximum, but clearly that is not the case.

Nevertheless, there are two aspects of this bill which we consider need attention; the first is to make provision for the costs not applying to the Crown. We say that the Crown should line up, effectively, to have the same right to costs as the claimant, otherwise we have an unfair situation again of the Crown being able to ask what it considers to be its costs without restriction; if the reverse occurs, and an application merits the claimant seeking an order for costs, they are going to be restricted to the total of $1,400. That is not acceptable to us. It will be $1,400 under the new regulation. I will be moving an amendment accordingly to delete subsection (2a) in clause 8.

The second area of amendment is to allow for the imposition of the levy to children—that is, children who are convicted of offences—to be relaxed in this way, namely, allowing the judge, who has the obligation currently without any discretion to impose a levy, to in fact have the discretion not to impose it if the person being convicted or sentenced is under the age of 18 years.

The exoneration of the defendant to pay that liability ought to be obvious to the government. It is not the first time we have raised it. It is not the first time others have raised it. It is my understanding that magistrates have raised this with the government, notwithstanding their blistering attempt to look like they are tough on everything and only support victims and do everything they can to smash the offenders and say, 'There will be no mercy to anyone who has convictions.'

They will have a levy applied to all the offences with no discretion or relief and no matter what their age or financial position. That has created this absurd situation where children sometimes receive an order that they pay a multiple group of the levy for multiple offences and, furthermore, that even if they are in a circumstance where they are not working and have no money and no capacity to pay, they are still ordered to pay it. There is absolutely no discretion, and magistrate after magistrate has raised it with me. They claim that it has been raised with the government, but it appears that the government, in their insistence on trying to look tough on law and order, has this absurd situation prevail and continue.

There has to be some relief because even this year, as we have clearly identified and as has been tabled in the annual report from the fines unit, the outstanding debt for levies to be paid by offenders has gone from something like $38 million to $52 million. That is a $14 million increase just last year and that could be that more children are being prosecuted and are not paying or it could be that more adults are being prosecuted and are not paying. I do not know. We still do not know the answer as to why there has been such an increase, but it is logical, isn't it?

Of the hundreds of thousands of people who are prosecuted and are paying this levy, there is a good number of them who are children and there is a good number of them who are people who cannot pay so, at the very least, we say that in a known circumstance where children do not have access to that, unless they have a parent who is prepared to line up and actually pay for it for them, it is never going to be paid, so it is ridiculous to have it there and not have a situation where the judicial officer has the capacity to relieve that liability. That is the import of our second amendment.

Commissioner Nyland recently published a press release suggesting that that should be attended to. It suggested that it be actually removed. I did seek clarification from the commissioner on this in respect of her interim recommendation and she wrote as follows:

I advise that the recommendation is aimed primarily at the mandatory nature of the current obligation. I appreciate that there may be some circumstances in which the imposition of a victim s of crime levy might be appropriate to the circumstance s of a young offender , and would not conflict with the obje cts of the Young Offenders Act.

In those circumstances, while I remain of the general view that there is little utility generally in applying the levy to any youth, I would support an amendment which removes the mandatory nature of the obligation , and pro vides judicial officers with a discretion regarding its imposition.

I hope that the Attorney has got the message.

Wiser people than me support that obviously: commissioner Nyland, magistrates, others who had to deal with this issue, resulting in this senseless accumulation of debt which is continuing to spiral. If we were to apply some of the money that is used to accumulate and record all this debt and attempt to follow-up and enforce something that is clearly unenforceable, we would be well served to apply that to the rehabilitation and support of our young people, rather than employing people in a bigger bureaucracy to deal with it. With those few words, I will need to go into committee, but I hope that I will be brief in presenting amendments, and that they will receive some favourable support of the Attorney—a Christmas present would be nice!