Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

It gives me great pleasure to speak to the Crimes Amendment (Victim Impact Statements) Bill 2006. The bill seeks to amend part 1B of the Crimes Act 1914 to establish a means whereby victims of federal crimes against the person can make a victim impact statement to the court as part of the sentencing process.

At some point in the development of our criminal justice system, the victim fell out of the process and became somewhat marginalised in the proceedings. This is highly unfortunate because, when we are dealing with criminal offences against the person, if there is anyone who deserves a say it must surely be the victim. A victim impact statement, or VIS, is broadly a statement containing particulars of any personal harm suffered by a victim as a result of an offence. Given the proliferation of offences against the person in Commonwealth legislation, Labor believes that it is time for a federal scheme of victim impact statements so that victims can be heard.

The genesis of the bill was the Senate’s work on the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004, which dealt primarily with crimes of sex trafficking and sexual servitude. Labor drafted an amending provision to the Crimes Act 1914 to provide for victim impact statements for victims of sex-trafficking offences. The Howard government, through Senator Ellison, indicated that they did not support the amendments as they stood, and Labor withdrew them, promising to revisit the matter at a later date. This is exactly what Labor has done. The bill before us presents a comprehensive approach to installing a system of victim impact statements across the federal criminal regime for offences where harm is suffered by a person.

While the Commonwealth has no general head of power over crime or criminal law, there are a number of specific areas of federal law that cover crimes against the person, and the coverage of these areas has significantly expanded in response to increasing globalisation and terrorist activities. Many of these offences cover the range of human suffering and misery, including slavery, child sex tourism, trafficking of persons for sexual servitude, war crimes, genocide and terrorism.

Federal criminal jurisdiction is vested in state and territory courts by the Judiciary Act 1903, while part IB of the Crimes Act 1914—I will use the term ‘the act’ from here on—provides for the sentencing, imprisonment and release of federal offenders. The provisions arose from an amendment to the act by the Crimes Legislation Amendment Act (No. 2) 1990 and create a separate regime for federal offenders. This legislation has not been significantly revisited or updated since that time.

Part IB of the act does not make explicit provision for victim impact statements and the like; instead state and territory law fills the gaps. This is truly an unhappy situation for consistency in federal sentencing. Not all state jurisdictions have a formalised scheme of victim impact statements, and there is wide variation across those that do—not only in form, but on matters of substance, including the definition of victim, the types of offences in respect to which a statement may be made, whether there is provision for the victim to be cross-examined in relation to the content of the statement and whether the victim can express an opinion in relation to the matter in which the offender ought to be sentenced. In the view of federal Labor, the present situation is really not good enough. To ensure consistency in the treatment of federal crimes—at least in respect of the issue of victim impact statements—it is therefore necessary to amend part 16 of the Crimes Act 1914.

Labor’s drive for a scheme of victim impact statements has not been conjured from thin air. There have been several well-established milestones that have pointed the way forward towards a federal scheme of victim impact statements. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 endorses this approach. The Parliamentary Joint Commission on the Australian Crime Commission also provided encouragement. In June 2004 it brought out a report titled Response to trafficking in women for sexual servitude. At page 52 it said:

Given the nature and effect of the sexual trafficking offences on the victim, there is a compelling reason to require that victim impact be considered when sentencing offenders.

Further, at 4.36 the committee said:

The Committee recommends that the following matters be examined in the legislative review announced as part of the government package: ...

                 …         …           …

• adopting the use of victim impact statements in sentencing.

Further, the Senate Legal and Constitutional Legislation Committee’s report into the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 included, at 3.27:

The Committee’s view is that consideration should be given to the greater use of victim impact statements in the sentencing of federal offenders for certain types of offences, especially sexual offences involving children.

The Australian Law Reform Commission report Same crime, same time: sentencing of federal offenders, which is report No. 103 and which was released in April this year, considered the issue of implementing a federal VIS scheme and recommended a model in which the federal scheme would apply to all federal sentencing irrespective of whether the offence is summary or indictable and irrespective of whether the victim is an individual or a corporation.

The ALRC favoured an approach whereby federal sentencing legislation makes comprehensive provisions for the use of victim impact statements in sentencing federal offenders and, if states and territories have laws about the use of victim impact statements that comply with specific federal minimum standards, those would be applied to the exclusion of the federal provisions. Labor, having had a look at those provisions, does not entirely favour the ALRC scheme, as it appears unnecessarily complex. The rationale for the report as a whole was to adopt a uniform system for the treatment of offenders across jurisdictions. Making the federal sentencing legislation a minimum standard would seem—just a little—to run contrary to this premise. However, the ALRC report did find the need for a victim impact statement within the federal criminal justice system.

To summarise the present position, at the moment use of victim impact statements for federal criminal offences depends upon which state or territory court the case is heard in. This is inadequate because the different states have different models and different provisions as a consequence. It has been this government’s practice to leave the matter to the states. It is a general principle of justice that like are treated alike, but because federal offences are prosecuted through the state court hierarchy this is not being achieved. Only a federal scheme will achieve consistency. That is underpinned by the ALRC report Same crime, same time: sentencing of federal offenders. They are driving the same point. Therefore, Labor has proceeded to advance the victims’ rights agenda with this bill, which I shall now deal with in detail.

Clauses 1 though 4 set out some technical requirements of the bill—the short title, date of assent, objectives of the bill and the amendments to the Crimes Act. Turning to the schedule, item 1 inserts a new subsection into section 16A to include victim impact statements or victim reports in a list of matters to which the court may have regard when passing sentence. Item 2 inserts a new section 16AA into the Crimes Act 1914. This section provides the basis for the new regime of victim impact statements. Subsection 1 sets out the definitions for the section. A ‘victim impact statement’ is an oral or written statement prepared by the victim of a crime for the court’s consideration in sentencing, setting out details of the harm suffered by the victim arising out of the offence. A victim report is a similar statement, but prepared by the prosecutor.

‘Harm’ is defined to include: physical injury; psychological or emotional suffering, including grief; contraction or fear of contraction of a sexually transmissible medical condition; pregnancy suffered as a result of criminal activity—for example, rape or sexual servitude; or economic loss. It should be noted that a rape victim or a victim of child-sex tourism or a sexual servitude offence may consider a pregnancy suffered as a result of criminal activity to be a harm, regardless of whether they later decide to keep the children who may result. It is intended that victim impact statements may only be received by a court where the offence involves an element of harm to a person, as per this definition and subsection 14.

‘Victim’ is defined to include: a natural person who suffers harm arising from an offence; or, where the person referred to in paragraph (a) dies as a result of the commission of the offence, a person who was a relative of or who was financially or psychologically dependent on the person. In this way, the bill will confine itself to personal harm suffered by a person, not a corporation, and will also allow, should the person die as a result of the commission of the offence, the relative who was financially or psychologically dependent on the person to provide a victim impact statement if they wish.

‘Relative’ includes a relative according to Aboriginal tradition or contemporary social practice, a spouse or a de facto partner. Access to the victim impact statement regime set out in the bill is therefore restricted to natural persons. Subsection 2 provides that the victim of a crime will be notified that they are entitled to file a victim impact statement and given sufficient time for a statement to be prepared and subsection 3 provides for the creation of information guides for this purpose. It is important that the public have a right to know how their voice can be heard within the criminal justice system. Subsections 4 and 5 provide for conditional contingencies where the victim may not be able to make a victim impact statement, while subsection 6 allows for the court to give permission for a person other than the prosecutor to present the statement. A victim impact statement must either meet these requirements or be signed as per the proposed subsection 2.

Subsection 7 provides that the court shall take each victim impact statement and victim report into account in determining sentence, subject to the conditions of subsections 11, 12 and 13. This is of course complementary to the amendment in item 1. Subsection 8 allows the statement or report to refer to harm caused to the victim arising out of other offences in certain circumstances. This is necessary where, for example, the victim has suffered harm as a result of offences committed under both federal and state or territory law. Both offences may be derived from the same harmful act and tried simultaneously; thus this provision is needed.

Subsection 9 provides that the statement or report may contain a statement as to the victim’s wishes in respect of the order that the court may make in relation to the offence. This scheme is about hearing the victim’s voice so it is natural that such provision be made. Subsection 10 provides that the court cannot draw inferences from the non-presentation of a statement or report, either in favour of an offender or against a victim. This ensures that presentation of a victim impact statement is a genuine matter of choice for the victim.

Subsection 11 provides that a victim impact statement may be excised in whole or in part. It is intended that this discretion not be used to silence victims, but rather to maintain the dignity of the court and its proceedings. Examples could include where the statement is manifestly irrelevant or obscene or offensive in its content. In such instances, the court may strike out as it sees fit. The offender should be made aware of the adverse impact of his or her actions on the victim, so accordingly subsection 13 ensures the offender gets the message. If the statement is oral, then a written or oral summary of the contents of the statement must be provided to the offender.

Labor is proud of its work in strengthening Commonwealth legislation against criminals and terrorists, but that is only half of the equation. The expansion of federal criminal legislation has naturally turned the focus of federal Labor to the victims of crime and victims’ rights. Labor has always been about building a caring society. It is a fundamental tenet of our philosophy that we do not believe in discarding people when their usefulness is finished. Perhaps more than anyone else, it is the victims of crime who deserve a voice in the process of justice, yet that is not guaranteed for the victims of federal crime. Federal Labor has quietly been working away on this proposal for the best part of a year to deliver a voice for the victims.

Labor cares about the victims of crime and commends this bill to all senators, but particularly to the Minister for Justice and Customs and those government senators who served on either the Senate Legal and Constitutional Affairs Committee inquiry into the trafficking in persons or the Parliamentary Joint Committee on the Australian Crime Commission inquiry on trafficking in women for sexual servitude. The recommendations made in those reports and the senators who endorsed the reports provided the impetus for this bill, so I urge senators to support its adoption in the government party room and I look forward to the Howard government’s agreement to assist its passage.

I am serious about this. I do not object to the government taking over the bill. It is a worthwhile bill and it will provide a positive benefit. I would be happy to facilitate that outcome by referring the bill to the Senate Standing Committee on Legal and Constitutional Affairs. With those words, I commend the bill once again to the Senate.