Extract from Hansard  Legislative Council 6 July 2001
Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 2001 Autumn Sitting Index Browse by Subject   Search all Democrats material About the SA Parliament Hansard on line
		Attorney General News

VICTIMS OF CRIME BILL

The Hon. IAN GILFILLAN: This is a timely piece of legislation. The Democrats support the second reading of this bill. However, we will be moving a number of amendments in committee. First, I commend the Attorney-General on presenting the bill to parliament. The Democrats are pleased to see the declaration of victims' rights becoming enshrined in legislation. However, we have a number of concerns. We are in agreement with the Victims Support Service Incorporated in its criticism of the basis of much of the proposed change. I quote its response to the bill as follows:

The Victims Support Service is, however, bitterly disappointed in the basic philosophy and underlying principle behind the changes to criminal injuries compensation. While we agree with many of the improvements in the bill. . . we have strong objection to the claimed need to reduce payments under criminal injuries compensation.

I will continue to quote from the Victims Support Service's response to the bill, as I believe it makes the point very clearly and concisely. It continues:

In all, about $10 million is spent and $8 million is raised in direct revenue for the fund-leaving a mere $2 million draw on general revenue. There are nearly 200 000 crimes a year with a conservative average of five people affected by each, yet only 1 500 victims claim compensation. Of these only 1 200 are successful. We believe that this is a paltry sum for the state to be investing in repairing the harm to innocent victims of crime. The total savings will be minimal to the system and to Treasury; however, the small sums paid to individual victims means a lot to them and in many cases makes a significant difference to their recovery.

We strongly argue that a gross inequality of justice exists with the funding which is provided for convicted offenders. There are some 1 600 offenders in the care of the Department of Correctional Services in a year, and an average of $400 000 per annum is spent per prison bed.

The operational budget for correctional services is $99 million. This provides for almost any rehabilitation and educational need of an offender. These opportunities are not available to their victims who may have become psychologically and/or physically debilitated, resulting in an inability to continue with employment or to enjoy quality relationships as a consequence of the criminal behaviour.

I emphasise the following point as being most salient:

We cannot understand how the government would even consider that savings `need' to be made to the fund when it is such a small investment in the rehabilitation of so many people.

The Hon. T.G. Roberts interjecting:

The Hon. IAN GILFILLAN: The Hon. Terry Roberts interjects, supporting our position. It continues:

We question, absolutely, the priority of a government which will use many millions of dollars to rescue unsuccessful or mismanaged private enterprises, attract new businesses temporarily into the State and redevelop or buy new sporting venues. . .

Having said this, I should like to consider some of the concerns that we have directly with the bill. I refer to orders for compensation. Clause 20 of the bill deals with orders for compensation, and subclause (5) requires further clarification. It provides:

(5) The court must not make an order for compensation in favour of a claimant if the court-

. . . (b) is satisfied on the balance of probabilities that the claimant's conduct contributed materially to risk of injury to the claimant.

The clause goes on to provide:

. . . (unless the court is satisfied that, in the circumstances of the particular claim, failure to compensate would be unjust.)

I would question why the Attorney has chosen to word the subclause in this way. My understanding is that, as with the contributory negligence bill also before us, if a claimant was found to have contributed in some way to the injury, the compensation would be reduced by a proportional amount. Paragraph (a) seems to set the situation that if a claimant had contributed to the risk of injury they would receive no compensation. Surely it would be clearer to incorporate the parenthetical section in the body of 20(5)(b).

I refer to non-financial loss. In his second reading explanation the Attorney-General stated that the review recommended that the threshold for non-financial loss be raised to 5 points. I note that in this bill the chosen threshold is at 3 points. The Democrats would argue that even this is too high and that there is little wrong with the current threshold of 1 point. For those members who are not aware of the meaning behind these points, they represent a scale that reaches from 1 to 50 and are used to help to determine the level of compensation allocated to a victim of crime for what is termed non- financial loss. Non-financial loss is defined in the bill as follows:

(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life;

(d) disfigurement.

Each point represents a particular degree of injury; 50 points is equated to the worst conceivable injury, for example, quadriplegia, and 1 point is an injury that is 2 per cent as bad as the worst case. Each point represents $1 000. In the case of 1 point, the claimant would be awarded $1 000. This would occur if it is deemed that their injuries were 2 per cent as bad as the worst conceivable injury. It then follows that 3 points would represent an injury that was 6 per cent as bad as the worst conceivable injury. In this case the claimant would be awarded $3 000.

The Attorney-General pointed out that this would prevent claims for only transient or trifling injuries. The examples that he used were cut fingers, bruising or muscle strains. My advice from a number of lawyers who are working in this field is that this would also include people who suffer a single fracture of a bone or an adjustment disorder or post traumatic stress disorder of under three months. I think few see these injuries as trifling. I would suggest that the increase in threshold to 3 points is not about victims of crime but rather about cost cutting. In fact, the third report of the Review on Victims of Crime states under the section on `Raising the threshold for non-financial loss':

The points scale, which is applied to determine the sum of an award for non-financial loss, effectively introduced a way of `standardising' these awards. It also reduced the cost to the state of awards for non-financial loss. One way of curbing the number of relatively minor awards for non-financial loss, should this be considered a desirable objective, is to raise the threshold to five points or $5 000.

It seems from this that there is no reason for raising the threshold, other than to reduce the cost of claims to the state. This seems to me to be unreasonable, particularly as the report also notes that the payment of compensation forms a valuable step for the victim in the process of closure.

The Hon. Nick Xenophon interjecting:

The Hon. IAN GILFILLAN: Your words-am I quoting you?

The Hon. Nick Xenophon interjecting:

The Hon. IAN GILFILLAN: I am paralleling your opinion. That is good to hear. It is comfortable to be on side with the Hon. Nick Xenophon. I ask that the Attorney-General, when closing the debate, to let the parliament know exactly what percentage and how many cases would fall in the below three points category. I would also like to see the number of cases that fall in the three to five points range, as raising the threshold would likely also affect claimants with injuries that may fall in this area. Given the increased chance that they may get knocked back, a claimant may choose not to pursue a claim for fear of financial loss. It is a complicated business, which I will not go into now. If you are on the borderline and are denied, then you have the cost of appealing and having that decision challenged.

I refer to the CPI index. The criminal injuries compensation fund is part funded by a levy paid by offenders and part by general revenue. I note with interest that the bill establishes that the levy will now be indexed to the consumer price index. I ask the Attorney-General why this has been indexed to the CPI whereas the compensation scheme for non-economic loss has not been indexed. As members may know, the equation of one point being $1 000 has not changed since 1994.

With regard to young offenders, I note that the Attorney-General has filed a number of amendments to the bill, one of which clarifies the bill's relationship with the Young Offenders Act. This is a matter I had intended to raise: however, I shall save that to the committee stage. I am currently seeking advice as to whether the Attorney-General's amendment resolves concerns raised with my office. I also echo the Leader of the Opposition's concerns regarding the minister's discretionary powers and would like to see an amendment to that section.

In closing, I indicate that the Democrats will support the second reading of the bill and I look forward to a constructive committee stage. It may be repetitious, but I cannot resist commenting that the time restraint put on dealing with matters as complicated and sensitive as this presents an irrefutable argument for a longer sitting time and I sincerely regret-

The Hon. K.T. Griffin interjecting:

The Hon. IAN GILFILLAN: I know I have prompted the Attorney-General, but we are being pressured into dealing with matters on a pressure cooker basis, which is bad parliamentary procedure.

The Hon. R.R. Roberts: Shame!

The Hon. IAN GILFILLAN: There is an interjection of `Shame!' from the Hon. Terry Roberts, with which I concur.

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