Northern Territory Second Reading Speeches

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CRIMES (VICTIMS ASSISTANCE) AMENDMENT BILL 2002

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to review the Victims Assistance Scheme under the Crimes (Victims) Assistance Act in order to streamline court procedures, improve efficiencies, and better address the needs of victims. Ultimately, these amendments will have the effect of reducing the legal and administrative costs associated with the scheme.

The Victims Compensation Scheme, now referred to as the Victims Assistance Scheme, was introduced to provide financial assistance to victims of crime to help them overcome the impact of crimes committed against them. The aim of the scheme is to provide compensation for injuries sustained by victims as a result of offences. Injuries can include physical or mental injuries. The cost of maintaining the scheme has increased exponentially over the last few years. The cost of the scheme in the previous financial year was over $5.5m, of which $2.26m was paid in legal costs. This means that over one-third of the costs of the scheme are going to the payment of legal costs rather than to the intended beneficiaries of the schemes, that is the victims of crime.

This government is concerned that the growth in legal fees is disproportionate to the growth in the assistance that is paid to the victims themselves. In the 1998-99 financial year, 24% of the overall costs of the scheme were spent on legal costs. In 2001-02, this percentage has increased to 41%. Another way of looking at the figures is that since the 1996-97 financial year, payments to victims have increased by 60% while legal costs have increased by 513%. If this trend continues the money being paid to the victims would soon be outstripped by the cost of administering the scheme. Already we have seen cases where the legal costs associated with the claim are higher than the assistance amount that is awarded to the victim of the crime.

In 1997, the Crimes Victim Advisory Committee reported to the then Attorney-General on the operation of the scheme. The report revealed a perception in the community, including the legal community, that the victims’ assistance process was unduly expensive and cumbersome. The committee made a number of recommendations to improve the Victims’ Assistance Scheme. Not one of these recommendations were implemented by the previous government. The concerns about the operation of the scheme continue. Over the last year I, and the Department of Justice, have received numerous written and verbal submissions from groups and individuals, including legal practitioners, concerned about the operation of the scheme. The escalating costs of the scheme have been the primary concern in those submissions.

The objective of the scheme is to assist victims of crime. This government is committed to ensuring that the scheme meets this objective. We are not prepared to stand by and see the scheme labour under unnecessarily cumbersome and costly procedures at the expense of the victims.

The amendments proposed in this bill address a number of recommendations made by the Crime Victims Assistance Committee in the 1997 report. The aims of the amendments are to make the number of minor or stop-gap changes to halt the haemorrhaging of the current scheme and simplify procedures. However, a complete review and overhaul of the Crimes (Victims Assistance) Act is proposed within the next year. This will explore a range of options such as introducing a completely new system focussing on rehabilitation and counselling and the potential benefits of moving to an administrative, rather than an judicial process, for the determination of awards. A discussion paper and draft bill will be prepared and released in the October sittings for wide public consultation before any such changes are contemplated.

Turning to the amendments now before the House. One of the main ways that the assistance process will be simplified is to remove the alleged offender from the proceedings. This is one of the key recommendations made the by the CVAC in its report and is already the case in some other jurisdictions, such as New South Wales. Currently, the alleged offender is a party to the proceedings and most be served with the proceedings. He or she must also agree to settlement offers before consent orders can be made. If the offender does not agree, the matter must proceed to a hearing.

Involving the alleged offender in the assistance process can be distressing to the victim and has been the subject of criticism by victim groups. Involving the offender can also add unnecessary costs and lengthen the assistance process because of the difficulty in finding and serving offenders and because of their often unwillingness to be involved in, or agree to, settlement offers.

The alleged offender must currently be a party to the proceedings because the Territory has an automatic right of recovery from the offender for the amount paid by way of assistance to the victim. However, the recovery rate from offenders is extraordinarily low. Often the offender is in gaol and has no means to pay the amount. Alternatively, he or she cannot be found or simply cannot afford the amount owed.

In the 2000-01 financial year, less than 5% of the assistance amounts awarded to victims was recovered from offenders. In 2001-02, the amount recovered was only 6% despite the best efforts of the Solicitor for the Northern Territory.
The cost to government of collecting these small amounts and the costs that are added to the scheme because of the involvement of the alleged offender are simply not economically justifiable. However, it was felt that an offender should not be able to get away scot-free. The amendments also provide for the Territory to commence separate recovery procedures against an offender after an award to the victim has been made. This will allow the Territory to effect recovery where it is considered appropriate and feasible, and it will ensure that the recovery rate is not reduced even further.

Only where the Territory commences such proceedings will the offender be given the right to argue his or her case, including whether the victim contributed to the offence. If the offender can establish contribution, the amount to be paid by the offender will be reduced accordingly. In any event, although an offender will not be a party to the actual proceedings for victim assistance, if there is any suggestion of victim contribution or a question of the offender’s identity, this will be in most cases addressed by the Territory’s legal representatives at the time of the victim’s assistance proceedings. Just because the offender is not a party to the initial proceedings, there is nothing to stop the Territory from gathering evidence from the offender at that time.

As mentioned above, removing the offender from the proceedings will also make the settlement between the Territory and the victim much easier to achieve. Other changes are also contained in the bill to provide more incentive for the parties to settle. Section 10A is to be amended to the effect that if an applicant rejects a reasonable offer made by the Territory and the court ultimately awards an amount equal to or lower than the amount offered, then the victim is not entitled to the costs incurred by him or her after the date of the offer. This will encourage parties to properly consider all offers for settlement and is aimed at encouraging proper mediation and negotiation and avoiding the court process as much as possible.

The process will be further simplified by allowing the decisions of the court to be made with as little formality as possible. Section 17(3) has been added to the act to provide that all evidence is to be given by affidavit, although the court will be able to allow cross-examination of a witness if it feels that that is appropriate. This means that most evidence will be presented on paper and the court will usually make its decision on the documents provided. The Chief Magistrate is supportive of this approach.

To reflect the simplified procedures that will be affected by the proposed amendments, section 15(4) has been inserted to provide that Judicial Registrars of the Local Court can perform all the functions of the court under the act. Judicial Registrars are legally qualified officers who already undertake much of the routine work of the court. Currently, Judicial Registrars conduct most of the proceedings under the act, including hearing interlocutory matters and conducting taxation conferences. The Chief Magistrate has indicated his support for changes which will allow Judicial Registrars to run the Crimes (Victim Assistance) process, especially given the amendments aimed at streamlining the process.

As the role of the Judicial Registrars will be subject to practice directions, this will provide an adequate safeguard whereby the Chief Magistrate can ensure that any complex matters can still be heard by a magistrate.

The other significant amendment is the proposed reduction in legal costs payable under the scheme. The amendments to the act and Crimes (Victim Assistance) Regulations provide for a reduction in legal costs from 80% of the Supreme Court scale to 40% of the Supreme Court scale. This is to address the previously mentioned exponential growth in legal costs and to reflect the simplified processes effected by the amendments.

Currently the rate of other Local Court matters is set at 50% for awards of $5000 to $10 000 and 80% for awards of $10 000 to $50 000. Victims assistance is only available to a maximum of $25 000, and most awards are for amounts of less than $10 000. The average for assistance payments is around $7738. This reflects the last 500 assistance payments made prior to August 2002.

There is no reason why crimes victims assistance matters should ever have attracted higher legal costs than other local court matters. With the simplification of the process affected by the bill, it now seems appropriate to reduce costs and to reduce them across the board.

There are a number of other changes being made in the act. Section 12 is being amended to provide that a victim will not be entitled to an assistance certificate if he or she did not report the offence to police, unless the court is satisfied that circumstances existed which prevented the reporting. This tightens up the current reporting requirement and ensures full cooperation of the victim with the police.

Section 12 is also being amended to provide that assistance will not be available to a person who is injured while committing a crime. For example, this will mean that claims for assistance will not be successful where both parties were involved in a pub brawl. In those cases, it has been known for a victim to claim assistance sustained from an assault by another person, even though the victim also assaulted the other person. This is not the aim of the scheme. The aim is to assist the innocent victims in our community. Because this is restricted only to crimes, it will not affect those victims who suffer injury from a serious offence while committing only a minor offence, for example, trespass.

Amendments are also proposed to allow the Territory to set off amounts awarded to victims who were named as the offender in a previous award of compensation. There have been cases where offenders have not reimbursed the Territory for assistance amounts paid to the victim, and subsequently the offender has made an application for victims assistance in relation to an offence committed against him or her. Currently, there is no way for the Territory to automatically set off the amount of victim assistance against the original amount owing. It does not seem fair that an offender is able to benefit from the scheme as a victim, while refusing to contribute in his or her capacity as an offender. Other minor amendments include a new subsection 13(2)(aa) to allow the court to take into account, in determining an amount of assistance, any private medical benefit received by the victim.

New section 17A is also proposed to abolish privilege in relation to medical documents related to an assistance application. This effectively means that the medical records can be subpoenaed so that the court can make more informed decisions as to the extent of injury and other matters.

New section 24(3) will allow the court to award costs against an applicant if the court dismisses or strikes out the application. Currently, there is no provision discouraging a person from making a false or vexatious application. Clearly, a person who abuses the legal system should not be permitted to get away with it without implication.

The bill also proposes an increase to the victims levy. The levy is payable by all persons found guilty by a court of an offence. It is also payable when a person expiates an offence by paying an infringement notice, such as a speeding ticket. This levy partly funds the victims assistance scheme under the act. The bill essentially doubles the amounts payable by the levy. Infringement notices will now attract a levy of $10 per ticket, and the levy on the finding of guilt for indictable offences will increase to $60. While doubling the amount payable may seem to be a large increase, it must be noted that these levies have not been increased since 1989, and this increase is consistent with the levies imposed in other jurisdictions.

The proposed amendments to the act are aimed at creating a victim assistance scheme that is more dependable, streamlined and cost efficient. The focus of this scheme should be on assisting the real victims of crime in our community. The amendments reflect this government’s commitment to practical initiatives to meet the needs of victims, and to a legal system that is both accessible and effective. Madam Speaker, I commend the bill to honourable members.

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