2nd Reading Speech

20 June 2018

The Hon. ADAM SEARLE (12:13): I lead for the Opposition on the Victims Rights and Support Amendment (Statutory Review) Bill 2018. The Opposition does not oppose the bill given that it is largely a technical bill that makes the sort of comparatively minor amendments we would expect arising out of a statutory review. However, there should be no mistake made about our views. We opposed the principal Act in 2013. The scheme established by that Act remains woefully and scandalously inadequate for the needs of victims of crime. The Government claims the earlier scheme was unsustainable. In plain English, it did not want to continue the compensation scheme for victims of crime. The Government that can splurge on multi-billion dollar stadia is not prepared to provide compensation to the victims of crime, a clear example of the wrong priorities of the Government. I remind members that many victims are victims of domestic violence or sexual assault.

The Government was, of course, shamed into early amendments to the scheme concerning victims of sexual assault. The perversity of the Government’s action is emphasised by the fact that the gutting of the scheme was driven by the fear of an avalanche of historical claims. The inadequacy of the scheme is starkly revealed when compared to the level of payments that may be made by the National Redress Scheme, which was recently subject to referral legislation in this House. The amendments in the bill are comparatively minor and largely stem from a statutory review. Section 119 of the principal Act provides that the Minister, in this case the Attorney General, must review the Act as soon as possible after a period of three years after the date of assent to the Act. The Attorney General directed that the department carry out the review on his behalf. Submissions were called for on 3 June and closed on 29 July. The review was tabled in the other place on 6 June, on the same day that the second reading speech was given. The review process was completed with a great deal more expedition than the review of the defamation Act, which was recently tabled more than six years late.

Turning to the provisions of the bill that amend the principal Act, changes are made to section 36 dealing with recognition payments. Those changes mean that recognition payments are paid to a child under 18 years of age of a homicide victim regardless of whether they were financially dependent or not. Equally, a recognition payment will be made regardless of whether they were financially dependent to the then spouse or partner of a homicide victim. Changes are made to section 39 in relation to the documentary evidence required to support an application for victim support. The issue was raised directly with the shadow Attorney General by advocacy services and the same issue was obviously raised in the review. There is doubt over whether the changes are sufficient, but time will tell. Paragraph 2.8 of the statutory review reads:

A significant number of submissions stated that the current documentary requirements are too restrictive and may operate to deter victims attempting to access the VSS. This is because police or government agencies may not be a victim’s preferred first point of contact when disclosing violence. Victims of domestic violence, child sexual assault and/or physical abuse and sexual assault, who may face significant barriers to reporting violence to the police or other authorities, are much more likely to attend health services shortly after the violence in order to receive treatment for their injuries. The current requirement may also impact disproportionately on marginalised or stigmatised groups, such as Aboriginal or LGBTQI victims, due to a reluctance to engage with the law enforcement and government agencies.

The amendments allow reports by an agency that provides support services to victims of crime to be added to the categories of medical or police reports for applications for financial assistance for immediate needs or economic loss. Amendments to section 40 are made to deal with what is described as an unintended drafting anomaly concerning application time limits for family members of homicide victims. Section 43 is amended to give the commissioner power to effectively apply a slip rule. Section 49, dealing with internal reviews, currently allows a review period of 28 days, which is extended to 90 days by this bill. Section 66 makes a victim a competent but not compellable witness in proceedings in the NSW Civil and Administrative Tribunal [NCAT] by a defendant seeking administrative review of a restitution order by the Commissioner of Victims Rights.

Amendments to section 113 mean that medical reports concerning the victim that are lodged with NCAT or admitted in evidence are not to be disclosed or provided to the defendant, who would be the applicant in those NCAT proceedings. Section 99, dealing with factors to be taken into account by a court in determining whether to give a direction for compensation, is amended by deleting the word “condition” in relation to an aggrieved person. This is an attempt to avoid possible discriminatory impacts. New section 112A makes a sensible amendment concerning the provision of personal information where the victim is under 18 years of age or lacks the capacity to understand the nature of the information. New section 101 makes a minor amendment about the address of an offender being provided to a victim in pursuit of court-ordered compensation.

Given the likelihood of address changes, we are not terribly persuaded of the practical utility of this measure. It is a matter of whether it will work in a practical sense.

As well, given that such compensation orders preclude a victim from the victims compensation scheme, the Opposition is unpersuaded of the practical benefit of these provisions in the overwhelming majority of cases. Given the uncertainty of recovery, it is unlikely most victims would seek court order compensation if it prevented them from the admittedly modest amounts of victims compensation under the scheme. The final provisions I mention are those referred to in the statutory review in part 3 entitled “Improving the administration of the VSS”. Paragraph 3.0 states:

We recommend three key amendments to improve the operation of the VSS through ensuring its financial sustainability. In its 2012 review of the old scheme, PricewaterhouseCoopers (PwC) found the scheme to be financially unsustainable. PwC estimated the contingent liability of the old scheme to be $392 million at June 2012, projected to increase annually by $38 million due to claims life and the assessed liability of unpaid claims.

The fact that this is a scheme designed for the benefit of accountants and treasury bureaucrats, it would seem, and not for victims keeps pushing itself on our awareness. This section of the report of the review has three elements, each of which is included in the bill before the House. Item [7] of schedule 1 provides an extra section 41A, which provides that an application for victims support lapses if 12 months has passed since the applicant was first requested to provide evidence to support the application, if the applicant has been requested on three separate occasions to provide that evidence and the commissioner decides that the applicant does not have a valid reason for failing to provide that evidence. The Attorney General’s second reading speech almost suggests that this is to benefit victims, but in truth it is about reducing the contingent liability of the scheme and is driven by financial motivations to write down the outstanding liability.

Recommendations 15 and 16 of the statutory review are reflected broadly in item [11] of schedule 1. Two subsections, (2A) and (2B), are added to section 48 of the principal Act. One makes approval of victims support subject to the condition that a victim must notify the commissioner of any amount that the person has already received from other sources in connection with the act of violence to which the victim’s support relates. The sources here are not defined or restricted in any way. The second reading speech provides the indication “such as insurance claims or other forms of compensation”. That speech also makes the point that the scheme is “a scheme of last resort”. Again, this gives the impression that the Government thinks that the scheme would be much more efficient without victims at all—of course, rather voiding the purpose of the statute.

Mr Jeremy Buckingham: First eliminate the customer.

The Hon. ADAM SEARLE: I acknowledge that interjection. The new subsection (2B) in section 48 provides that the commissioner may withhold payment if the victim fails to comply with subsection (2A) dealing with providing advice of amounts received from other sources. The 2013 regulation is amended in various ways to deal with counsellors. Clauses 10 (2) and 11 (b) increase the amounts paid for funerals from $8,000 to $9,500, which emphasises the fact that there was no automatic indexation of the amounts specified under the 2013 legislation. Even after this indexation, it still may not be adequate. Not only did the Government gut the compensation amounts in the old scheme, but in a final twist of the bean counter’s knife, it also did not index the remaining reduced amounts.

In conclusion, I note the provisions of schedule 3, which make minor and entirely supportable amendments to the Crimes Act, the Children (Criminal Proceedings) Act and the Crimes (Domestic and Personal Violence) Act. The Civil and Administrative Tribunal Act is also amended, and again I note items [14] and [18] of schedule 1. Labor does not oppose this bill, but we have a view that it should be significantly improved. A government that has embarked upon this Government’s stadium splurge can and should do a lot better for victims of crime in this State.