VICTIMS OF CRIME RIGHTS AND SERVICES BILL 2006 Explanatory Statement

Northern Territory Explanatory Statements

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VICTIMS OF CRIME RIGHTS AND SERVICES BILL 2006

VICTIMS OF CRIME RIGHTS AND SERVICES BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 44

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Victims of Crime Rights and Services Bill 2006 (“the Bill”) consolidates a range of victim related legislation complementing the Victims of Crime Assistance Bill 2006. It establishes the new Crimes Victims Services Unit (“CVSU”) and the Victims Register. It also repeals and replaces the Crimes Victims Advisory Committee Act and provides for the Attorney-General to issue a Charter of Victims Rights.

The Bill provides for the appointment of a Director and officers of the CVSU and sets out the functions of the CVSU. The main role of the CVSU will be to administer the new administrative scheme for providing counselling and financial assistance to victims of crime under the Victims of Crime Assistance Bill 2006. Its other roles will be to provide administrative assistance to the Crime Victims Advisory Committee (“CVAC”), establish and maintain the Victims Register, promote and oversee the operation of the Charter of Victims Rights, provide community education about the rights of victims and coordinate services provided to victims by the Territory.

The Bill repeals the Crime Victims Advisory Committee Act and inserts the provisions into the Victims of Crime Rights and Services Bill 2006. The only substantial change is the addition of the Director of the CVSU to the membership of the committee.

The purpose of the Victims Register is to allow victims of crimes to be informed of the progress of the offender through the correctional system. It provides those victims who elect to be on the register with certainty and comfort and ensures they will not be unaware of an offender’s release from prison or detention. Importantly, the Bill also provides a mechanism for victims to be more involved in the parole process. The register provides a formal mechanism for the victim to be informed when an offender comes up for parole and the Bill creates a legislative right for the victim to make written submissions to the Parole Board when an offender is being considered for parole. The provisions relating to the Register are based on a report prepared by CVAC in April 2005.

The Bill also provides for the Minister to issue a Charter of Victims Rights, to establish the principles about the way in which victims are to be treated in the justice system.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Victims of Crime Rights and Services Act 2006.

Clause 2. Commencement.

The Act will come into operation on the date, or respective dates, fixed by the Administrator by notice in the Gazette.

It is proposed to commence the legislation in early 2007, to enable sufficient lead-in time for the community to prepare for the reforms prior to implementation.

Clause 3. Objects.

This clause sets out the objects of the Act.

Clause 4. Definitions.

This clause contains the definitions necessary for the Act.

PART 2 – CRIME VICTIMS SERVICES UNIT

Clause 5. Establishment of CVSU.

This clause establishes the new Crimes Victims Services Unit (“CVSU”) which will be constituted by the Director of the CVSU and other appointed officers.

Clause 6. Director.

This clause provides for the Chief Executive Officer to appoint the Director of the CVSU. The Director must be a public sector employee and is responsible for managing the operations of the CVSU. Any functions of the CVSU can be performed by the Director and the Director is given the necessary and convenient powers for the performance of the functions of office.

Under clause 33, the Director may delegate his or her powers or functions to another public sector employee.

Clause 7. CVSU officers

This clause provides that the Chief Executive Officer may appoint public sector employees to be CVSU officers to assist the Director. A CVSU officer may perform the functions of the CVSU but this must be in accordance with the directions of the Director. CVSU officers also have the powers necessary or convenient for the performance of the functions.

Clause 8. Functions of CVSU

This clause sets out the functions of the CVSU. These include administering the financial assistance scheme and counselling scheme under the Victims of Crime Assistance Act 2006 and the Victims Register. The CVSU is also responsible for coordinating victim services across the Territory and promoting and overseeing the Charter of Victims Rights.

The CVSU will work with other victims’ services in the
Northern Territory and seek to maintain a close working relationship with the services and other Government Agencies that assist impact on victims, such as Northern Territory Police, Fire and Emergency Services, the Department of Health and Community Services and Correctional Services.

Clause 9. Annual Report.

This clause obliges the Director to provide an annual report to the Chief Executive Officer of the Department of Justice no later than 3 months after the end of each financial year. The report must contain details about the operation of the financial assistance scheme and counselling scheme under the Victims of Crime Assistance Act and the operation of the Victims Register.

PART 3 – CRIME VICTIMS ADVISORY COMMITTEE

Clause 10. Establishment and constitution of the Advisory Committee.

This clause establishes the Crime Victims Advisory Committee (“CVAC”).

CVAC is currently established under the Crime Victims Advisory Committee Act which is to be repealed. There are no significant changes to the advisory committee other than to create a new position on the committee for the Director of the CVSU. The only other changes have been of a minor technical or stylistic nature.

The committee is to be constituted by 12 members:
· the chairperson who must be a legal practitioner or a health professional;
· six other people nominated by the Minister which must include a non-government legal practitioner, a non-government medical practitioner and two people from “approved organisations”;
· two nominees of the Chief Executive Officer (which may include the Chief Executive Officer) of the Department of Justice, one having expertise in legal matters and the other in correctional services;
· the Director of the CVSU (or his or her nominee);
· the Commissioner of Police (or his or her nominee); and
· the Chief Executive Officer, or his or her nominee, of the Department of Health and Community Services.

“Approved organisations” means organisations approved by the Minister, that provide counselling assistance in the Northern Territory.

Before the Minister appoints the legal practitioner or medical practitioner, he or she must consult, respectively, with organisations representing the interests of legal practitioners and medical practitioners.

Clause 11. Term of appointment.

The clause provides that members are appointed for two years from the date of appointment but are eligible for reappointment.

Clause 12. Resignation and removal of member.

The clause provides for the manner of resignation and termination of appointment of members of the Committee.

A member may resign by written notice to the Minister.

The Minister MAY terminate the appointment of a member for misbehaviour or incapacity or, in the case where the member’s appointment is subject to the recommendation of an approved organisation, where the person is no longer involved with the organisation.

The Minister MUST terminate the appointment of the member in the following circumstances:
· bankruptcy or insolvency;
· becomes of unsound mind;
· is convicted of an offence punishable by imprisonment;
· is absent without ministerial leave from 3 consecutive meetings;
· ceases to hold the relevant qualifications;
· no longer resides in the Northern Territory.

Clause 13. Holding meetings.

This clause requires that there must be not more than 6 months between each meeting.

The chairperson is to convene meetings by written notice to other members. The chairperson must convene a meeting as required by the Minister.

Clause 14. Procedure at meetings.

The clause provides that, generally, procedure is to be decided by the members. A quorum is constituted by 7 members.

The chairperson must always preside at a meeting where he or she is present but in the chairperson’s absence, the members present must elect a presiding member.

A question is to be determined by a majority of members present and voting. The chairperson or presiding member has only a deliberative vote and if there are equal votes the question is to be decided in the negative.

The committee is required to keep a record of its meetings.

Clause 15. Defect or vacancy etc. does not invalidate decision.

The clause provides that decisions or acts of the Committee are not invalidated merely by any of the following:
· a defect in an appointment;
· a disqualification of a member;
· a defect in the convening of a meeting; or
· a vacancy.

Clause 16. Functions and powers of advisory committee.

This clause sets out the functions and powers of the committee.

The functions of the committee are as follows;
· to advise the Minister on matters affecting the interests or rights of victims;
· to investigate, report and make recommendations to the Minister on matters referred to it by the Minister;
· to disseminate information relating to matters affecting the interests or rights of victims;
· to assist in the co-ordination of organisations involved in, and initiatives for, the provision of services to victims, including (but not limited to) services provided by the Northern Territory; and
· any other functions conferred on it by the Minister or under this or any other Act.

These functions are very similar to the current functions of CVAC but there are minor changes to accommodate the relationship between CVAC and the new CVSU. The CVAC will continue to provide independent expert advice to the Minister on matters affecting victims’ interests. However, the scope of their functions will be expanded to also cover victim’s rights, reflecting the focus of the Victims of Crime Rights and Services Bill 2006. In effect, CVAC has provided advice on victims’ rights in the past, but this function will now be expressly recognised.

The role of the new CVSU includes the coordination of victims services Territory wide, which has been a role of the CVAC in the past. Due to the nature of CVAC and its irregular meetings, this role has always been difficult to fulfil effectively. The new CVSU, being an ongoing administrative office with resources and a dedicated team of officers, will be in a much better position to be able to monitor services, develop relationships with other victim services and organisations across the Northern Territory and implement projects. CVAC will still be in an excellent position to be able to provide independent advice and assistance to the CVSU on these matters and so its legislative function has been changed from being a “forum for co-ordination of organisations” to “assisting” in the coordination of victims services.

The Minister may require the committee to provide a report or recommendation within a specified time.

The committee also has the powers necessary or convenient for the performance of its functions.

PART 4 – VICTIMS REGISTER

Clause 17. Application of Part.

The clause provides that Part 4 applies only in relation to an offender who has been sentenced in the Northern Territory to a term of imprisonment for a relevant offence, regardless of the age of the offender, where or when the offence was committed or whether the sentence of imprisonment is suspended.

This means that this part applies in relation to an offender who is a juvenile or was a juvenile at the time the offence was committed. All references to imprisonment under the Bill also cover detention. However it must be noted that clause 21(2) allows the Director to refuse to register a victim of a child offender if the circumstances of the offender or offence do not justify registration.

Generally, the intention is that eligibility for registration applies in relation to any offender who is under the control or supervision of the Northern Territory Correctional Services, even if the offender was sentenced elsewhere and transferred later to the Northern Territory. The part will also apply to an offender whose sentence has been fully or partly suspended, so that a victim of the offence can be informed, for example, if the suspension order is revoked and the offender is subsequently required to serve their suspended sentence.

Clause 18. Relevant Offence.

This clause defines “relevant offence” for the purposes of the register. Only victims of “relevant offences” can be registered. A “relevant offence” is a criminal offence involving the threat or use of violence against a victim regardless of whether any violence is actually carried out. It also includes an offence against section 213 of the Criminal Code (unlawful entry) if the victim was in the building at the time of the offence. For a victim to be registered the offender must have committed a relevant offence, but he or she must also have been sentenced to a term of imprisonment.

Clause 19. Eligibility to be registered.

This clause sets out the people who are eligible to be registered in relation to a particular offender. There are two categories of people who may be registered - victims who are automatically entitled to be registered and “concerned persons” who may be registered subject to the approval of the Director of the CVSU. This approval will be granted according to requirements under the Regulations and guidelines.

People who are automatically entitled to be registered are victims who have suffered an injury as a direct result of a relevant offence, or their legal guardian.

People who are entitled to be registered, subject to the approval of the Director are:
· a family member or primary care-giver of, or a person nominated by, a victim automatically eligible to be registered;
· a victim of robbery (this offence involves violence or threat of violence);
· a victim of unlawful entry who was inside the building at the time of the offence;
· those with a restraining order under the Domestic Violence Act against an offender at the time of the offence or sentencing;
· a person with a history of domestic violence from the offender; and
· a person who has a substantial concern with the offence.

Clause 20. Application for person to be entered on register.

This clause provides that applications are made to the Director of the CVSU in the approved form. They may be lodged by personal, postal or electronic delivery. An application can be made at anytime after the offender is sentenced but prior to the offender being discharged from the sentence of imprisonment.

Clause 21. Decision and notice about entry on register.

This clause provides that the Director of the CVSU must notify an applicant within 28 days whether or not they have been registered.

If the victim is registered, the notice must inform him or her of the following:
· the role of the CVSU in operating the register;
· the rights and obligations of the registered person;
· the information about the offender the person is entitled to receive; and
· any other information specified by the Regulations.

If the person is not registered, the notice must inform him or her of the reasons.

Where an offender is a child, the Director may refuse to register the applicant if the circumstances of the offender or relevant offence do not justify the applicant being registered. There may be situations where the registration of a victim in relation to a juvenile offender is very justifiable eg in a domestic violence context. However where a child is involved it is essential to ensure that they are protected as much as possible and are given the greatest chance of rehabilitation.
This discretion in relation to the registration of victims of an offence committed by a juvenile was included during the consultation process at the recommendation of the Information Commissioner.

This clause further provides that, even if the offender is released from prison prior to the applicant being entered on the register (for example, because the offender only received a very short sentence) the applicant can still be entered on the register. This approach was recommended by CVAC in its April 2005 report. There may be some information that will still be relevant to the person even after the offender’s sentence has expired, for example, where the offender intends to reside or if the offender dies in prison.

The Director of the CVSU must inform the Director of Correctional Services when a person is registered including the details of the relevant offender.

Clause 22. Information to be given to registered persons.

This clause lists the information about the relevant offender that the registered person is entitled to receive. There are two categories of information that a registered person can receive – information that is automatically provided to the registered person and information that must be specifically requested by the registered person.

Information automatically provided to a registered person.

If the offender is sentenced to a non-parole period, the registered person is entitled to be informed of:
· the earliest possible date of release on parole and any changes to that date;
· the date when the Parole Board is to consider release on parole;
· the actual date of release on parole;
· the conditions of a parole order;
· the revocation or cancellation of a parole order.

If the offender is under a suspended sentence order, the registered person is entitled to be informed of:
· the date of release from prison under a suspended sentence order;
· the conditions of a suspended sentence order; and
· the variation, revocation, cancellation or discharge of a suspended sentence order.

Also generally, in relation to an offender serving a term of imprisonment, all registered persons are entitled to be informed of:
· transfer to another prison interstate or overseas;
· escape from prison and any recapture;
· the actual date of discharge from prison;
· any other sentence of imprisonment that may affect the date of release;
· the death of the offender;
· if known the locality (not exact address) of the offender on release; and
· any further information specified by the Regulations.

Information provided to the registered person on request.

In relation to an offender, a registered person is entitled to be informed of:
· a transfer to another prison in the Northern Territory;
· the status of the security rating and any change in the status;
· courses or programs undertaken for rehabilitation;
· any approved leave of absence from prison; and
· any further information specified by the Regulations.

Sub-clause (3) clarifies that a registered person is entitled to be informed of the offender’s discharge.

Clause 23. Information to be given about consideration of parole.

This clause obliges the Secretary to the Parole Board to inform the Director of the CVSU of the date on which the Board is to consider the release on parole of an offender. This information must be provided at least one month before the date the offender’s release on parole is to be considered or as soon as practicable.

Once the Director is aware of such information, he or she must inform the registered person at least 28 days before the offender release on parole is to be considered, or as soon as practicable.

Clause 24. Registered person may make submission to Parole Board.

The purpose of this clause is to provide registered persons with a statutory right to make written submissions to the Parole Board about a relevant offender to be considered for release on parole.

Currently, any written submissions provided to the Parole Board in relation to an offender being considered for parole will generally be considered by the Board. However, this practice is very ad hoc and the onus is on the victims to contact the Parole Board to find out when the offender’s parole is to be considered. This can sometimes require victims to contact the Board on regular monthly occasions. There is currently no express statutory right for victims to make submissions to the Board, nor is there a formal process for this practice. Consequently many victims are either unaware that making a written submission is an option or are deterred from doing so because of the difficulty in contacting the Board. This new statutory right of registered persons to be informed of the date an offender is to be considered for parole along with the right to make a submission, will address these current deficiencies.

The clause also clarifies that the Parole Board is not restricted to considering submissions for registered persons. For example, a victim may not want to be placed on the register but he or she may still want to make a submission to the Board in relation to parole.

Clause 25. Director of Correctional Services to inform CVSU.

This clause provides that, when the Director of Correctional Services is made aware of a matter relating to information a registered person is automatically entitled to receive under clause 22, he or she must advise the CVSU about the matter as soon as practicable.

The clause further provides that, when the Director of Correctional Services is requested by the CVSU to advise about a matter relating to information a registered person is entitled to receive on request under clause 22, the Director of Correctional Services must advise the CVSU about the matter as soon as practicable.

Clause 26. When information not to be given to registered person.

This clause clarifies that the CVSU is not obliged to give information to a registered person if the Director reasonably considers the information should be withheld.

The purpose of this clause is to protect offenders in the rare cases that the offender may be at risk, for example, where there have been threats made against the offender or to prevent vigilantism. There will be guidelines developed in relation to the circumstances in which the CVSU can refuse to provide information to a registered person.

Clause 27. Obligations of registered person.

This clause places obligations on the registered person to ensure that the CVSU has sufficient information about the offender and registered person so that it can effectively fulfill its own obligations under the Bill. The information that a registered person will be obliged to provide will include name changes and changes of address. It is the responsibility of the registered person, not the CVSU to ensure their contact details are up-to-date.

A registered person will also be required to sign a confidentiality agreement in accordance with the Regulations. The information provided to registered persons about an offender is essentially their personal information and, accordingly, it should be protected like any other type of personal information. The provision of this information to registered persons is to assist victims and other people affected by crime to come to terms with the crime, to reduce the impact the release of the prisoner may have on the registered person and to allow victims and concerned persons to make submissions in relation to parole. The information is not for public release.

Clause 29 also strengthens this obligation by creating a non-disclosure offence.

Clause 28. Removal from register.

The clause provides that a registered person may be removed from the register in accordance with the Regulations. This will include where the person requests to be removed, where the offender is discharged from prison and where the victim cannot be contacted after reasonable attempts.

Clause 29. Non-disclosure of confidential information.

This clause creates an offence of disclosure. The offence applies to all people including the CVSU, a registered person and an offender.

A person must not disclose information about a registered person or an offender that has been given or received under the Victims Register provisions except in the following circumstances:
· as allowed under the Victims of Crime Rights and Services Bill 2006;
· with the consent of the registered person or offender, as the case may be;
· for court proceedings; or
· any other lawful reason.

The maximum penalty for this is 400 penalty units or imprisonment for 2 years for individuals and 2000 penalty units for a body corporate.

PART 5 – MISCELLANEOUS MATTERS

Clause 30. Charter.

This clause provides for the Minister to issue a Charter of Victims Rights, to establish the principles governing the way in which victims are to be treated in the justice system and may provide for any other matters relevant to the rights of victims.

The Minister has in the past issued a Victims Charter setting out the general principles as to how victims should be treated in the justice system, which also includes lists of victims’ services and contact details. However, this charter has had no legislative backing or central body overseeing its operation. The establishment of the CVSU will provide an appropriate centralised office for victims to contact to seek advice in relation to breaches of the Charter. The CVSU will be able to conduct investigations and report to the Minister on any identified breaches.

Clause 31. Guidelines.

This clause provides for the Minister to issue guidelines in relation to the performance of functions under the Act. Any person performing functions under the Act will be required to have regard to the guidelines.

These guidelines will cover a range of matters under the Bill and provide the finer detail on the operations and management of the victims register. For example, they will provide guidance to the Director of the CVSU as to the consideration of applications for registration and the Director’s dealings with the Parole Board and Northern Territory Correctional Services.

Clause 32. Protection from liability.

The clause provides that persons who have exercised powers or performed functions under the Act are not civilly or criminally liable for an act done or omitted to be done in good faith. This protection applies to people who are or have been the Director of the CVSU, an officer of the CVSU, the Director of Correctional Service or Secretary to the Parole Board.

This clause does not affect any liability the Northern Territory would have for the Act or omission.

Clause 33. Delegations.

This clause provides a power of delegation to the Minister, the Director of the CVSU and the Director of Correctional Services in relation to any of their powers under the Act.

Clause 34. Regulations.

This clause sets out a general regulation-making power under the Act. The Administrator may make regulations, not inconsistent with the Act, prescribing matters that are required or permitted under the Act or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

PART 6 – REPEAL AND TRANSITIONAL MATTERS FOR VICTIMS OF CRIME RIGHTS AND SERVICES ACT 2006.

Clause 35. Definitions.

This clause provides the definitions necessary for this Part.

Clause 36. Repeal.

This clause provides for the repeal of the Crime Victims Advisory Committee Act.

The provisions of this Act, with minor changes, have been inserted into this Bill.

Clause 37. Continuation of appointment of members.

This clause provides that members appointed to the current CVAC will continue as members of CVAC.

Clause 38. Continuation of approved organisation.

This clause provides that an organisation approved under the repealed Crimes Victims Advisory Committee Act for the purposes of making appointments to the committee, continues as an approved organisation under this Bill.

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