Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise this afternoon to speak on the Crimes Amendment (Victim Impact Statements) Bill 2006, which was initiated by my colleague Senator Ludwig. I would like to congratulate him on putting together this bill, because it is most timely and very much needed at the federal level. It is becoming more the case that a range of information is being taken into account and considered relevant to a court when determining the sentence of an offender. One of the sentencing factors that is becoming increasingly important in the sentencing of offenders throughout Australia is the impact of the offence on the victim.

Under federal law, the subject matter of a federal offence has traditionally been considered victimless. The reason for this view is that the so-called ‘injury’ is seen to be to the Commonwealth, which of course cannot sustain an injury in the same way that an individual can. However, increasingly, we are seeing new federal offences being created, such as terrorist offences, people-smuggling offences, sex-trafficking offences, sexual servitude offences, child sex tourism offences and war crimes. These federal offences often involve individuals as victims. It is for this reason that we should consider introducing victim impact statements at the federal level. The reason is that these offences clearly affect individuals.

We have heard about victim impact statements from other speakers. Just to clarify: they are an oral or a written statement presented to a court in a criminal trial after conviction of the defendant and before sentencing. The statement usually contains particulars of any personal harm that may have been suffered by a victim as a result of an offence. It is simply one way of informing a court about the harm, loss or injury that has been suffered by a victim of an offence which is the subject of the sentencing proceedings. As we have heard here today, there is no regime in place at the federal level that allows for the use of these formal victim impact statements. Part 1B of the Crimes Act 1914, Commonwealth legislation, does not make provision for victim impact statements. Earlier we heard from Senator Ian Macdonald that, even though the injury to a victim is something that may be taken into account in the sentencing of a federal offender, there is no express provision made for it within the Crimes Act. As I understand the effect of the legislation before us, it is to introduce an express provision which would allow a victim impact statement to be taken into account when a federal offender is sentenced.

We have also heard today that, throughout Australia, the states and territories, except Queensland—which I will refer to in a moment—already have in place legislative provisions or, in some cases, court rules that govern the use of victim impact statements. In some instances, a victim of a federal crime may be able to access these state and territory laws. In other words, it is sometimes the case that, when a person is being tried in a state or territory court, the victim impact statement provisions can have application when the actual offence involved is a federal or Commonwealth offence. But the difficulty, as we have heard today, is the wide variation across the various jurisdictions in the states and territories as to the legislation that underpins the use of these victim impact statements.

In the time I have available, I will run through very quickly the differences that exist between the states and territories in relation to victim impact statements. I am proud to say that, in 1988, my home state of South Australia was the first Australian jurisdiction to enact legislation to provide for the admissibility of victim impact statements. I am able to say today, again quite proudly, that South Australia has—almost as we speak—appointed an interim Victims Rights Commissioner. I understand that the position of Victims Rights Commissioner is one that will be unique throughout Australia and that South Australia is one of the very few jurisdictions in the world that will have a Victims Rights Commissioner. I think the UK has a similar type of position. Authority will be given to the Victims Rights Commissioner to intervene in criminal trials when the rights of a victim are being overlooked or ignored. This is a very important development that is occurring in my home state of South Australia.

We have heard about Queensland from Senator Ian Macdonald this afternoon. As he said, Queensland has no explicit statutory provision for the use of victim impact statements, except that it is the case that the court is authorised to receive any information that it considers appropriate in imposing a proper sentence on an offender. The way that that provision is worded certainly would permit the use of a victim impact statement if it were considered to be relevant information. However, there is no explicit statutory authority underpinning the use of these statements in Queensland.

In Western Australia, the sentencing legislation expressly prohibits a victim impact statement from addressing the way in which or the extent to which an offender ought to be sentenced. So in Western Australia victim impact statements can be used, but they can be used only for a limited purpose. The legislation prohibits them addressing in any way the extent or nature of the punishment that should be imposed on the offender.

In contrast, the Northern Territory has an express provision that a victim impact statement may contain a statement as to the victim’s wishes in respect of the sentencing order to be made by the court. The Northern Territory has quite a different approach; it actually permits the victim to express their wish as to how they think the defendant ought to be sentenced by the court.

In New South Wales, legislation does not prevent a court from considering a victim impact statement given by a family victim ‘in connection with the determination of punishment for the offence’ if it considers it appropriate to do so. Again, in New South Wales it is the case that there can be reference to the victim impact statement in determining the punishment for the offence that has been committed.

Generally speaking, these victim impact statements that I have been speaking of must be in writing. This is the case in New South Wales, South Australia and Tasmania, but in other jurisdictions they may be presented orally. This is the case in Western Australia, the ACT and the Northern Territory. Again in my own home state of South Australia, a child or a young person who is the victim of an offence may present the particulars of the impact of that offence on them by way of writing, drawing, telling a story or even writing a poem. So in South Australia we are very creative as to the ways in which these victim impact statements can be presented.

New sentencing legislation in the ACT significantly expands the scope of persons who can make a victim impact statement. This includes not only the victim but also parents, carers, close family members of victims and persons who are in an intimate personal relationship with the victim. So you can see that there is a great deal of variation throughout the various jurisdictions in Australia as to the use and the scope of these victim impact statements.

There is also wide variation across jurisdictions in relation to the following matters: firstly, the types of offences in respect to which a statement may be made; secondly, whether the court has the power to rule as inadmissible the whole or any part of the victim impact statement; and, thirdly, whether there is a provision to be cross-examined in relation to the content of the statement.

In summary, you can see that there are a number of significant differences between state and territory laws concerning the availability, content, form and use of victim impact statements. In fact it is the case at the moment that legal practitioners concede that the use of victim impact statements for federal crime often has to be tested on a case-by-case basis and will often depend, of course, on which state or territory the offender is being tried in. It is for this reason that Senator Ludwig has come up with this initiative, following recommendations of various reports which I will refer to in a moment, by pushing for a uniform approach in the federal context.

In setting up a federal scheme, the bill that we have before us today has sought to incorporate best practice by examining the practices in the states and territories that I have referred to and extracting best practice from those approaches. The bill will ensure consistency in access to victim impact statements by federal victims regardless of where the trial is being held. That is the very important development that this bill seeks to bring about.

The importance of victim impact statements for victims is in terms of vindication, the healing process, restoration and, lastly but still importantly, giving them a voice in the sentencing process. The arguments in favour of the use of victim impact statements include reducing the perception of the victim’s alienation in the criminal justice process; assisting in making sentencing more transparent and, importantly, more reflective of the community’s response to crime; and promoting the rehabilitation of defendants by confronting them with the actual impact of their offending behaviour.

A couple of speakers have referred to the Australian Law Reform Commission’s recent report entitled Same crime same time: sentencing of federal offenders, and Senator Ian Macdonald has informed us that the government is preparing a response to this report. It makes interesting reading, and I just want to share with the Senate a few of the passages from the report that really focus attention on the issues that are at stake here. For example, the Australian Securities and Investments Commission made the following submission to the ALRC when talking about corporate crimes:

Corporate crimes often have a large number of victims, some of whom may have suffered a little and others who have suffered a substantial loss.

ASIC often prosecutes matters where a vulnerable group is the specific target of offenders, such as retirees, the elderly, those who are socially disadvantaged, or a particular ethnic community. It would be desirable for some mechanism to be in place to allow information to be presented to a court where appropriate, on behalf of such victims.

ASIC goes on to say:

Some ways in which this information could be presented are by way of submissions, a general statement or expert evidence, such as from a psychiatrist or social worker who can attest to the impact of the offence on the affected group.

So you can see from that that even bodies such as ASIC that have jurisdiction over a wide range of matters at the federal level in relation to securities and corporate matters can also see the value in having what we are referring to today as victim impact statements, but which might also be statements provided by other professionals to give testimony as to the effect of particular crimes on individuals or on groups of individuals.

In addition, the Senate Legal and Constitutional Legislation Committee’s report into the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 also highlighted just how important it is to have these victim impact statements. The report stated:

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.

So it was a couple of years ago that one of our own committees identified how useful these victim impact statements can be.

Victim impact statements also assist the sentencing process by providing judicial officers—that is, the judiciary—with details of the impact of offences. If this were not the case, quite often those trying to determine the sentence might be completely unaware of the impact of a particular offence on a victim. The statements clearly benefit victims of crime but may also promote the rehabilitation of offenders, as I have said before, by confronting the offenders with the details of the harm they have inflicted. Once again, it may well be the case that an offender is oblivious to the harm that has been caused to the victim and to his or her family and close ones.

The proposal that we have before us here today on Senator Ludwig’s initiative is to enact comprehensive provisions for the use of victim impact statements at the federal level. These would replace existing state and territory provisions in relation to federal offences. Of course, state and territory laws would stay in place in relation to state and territory crimes, but the matter would be clarified in relation to federal offences because there would be specific Commonwealth legislation that would provide for victim impact statements.

This was one of the suggested options for reform in the Australian Law Reform Commission’s report that I referred to before. The commission has suggested in its report:

... for federal law to introduce a comprehensive and self-contained scheme for victim impact statements, which would replace existing state and territory provisions in relation to federal offences.

This would:

… promote a uniform approach in the federal context, given existing disparities in state and territory provisions; and … it would be useful in relation to offences where the victim was outside the jurisdiction.

Under Labor’s federal victim impact statement model, a statement would be given to the court after a person is convicted and before they are sentenced. Labor’s approach would therefore extend the rights of victims to give them the opportunity to speak and be acknowledged as stakeholders in the sentencing of the offender.

Labor’s reforms on the initiative of Senator Ludwig will finally achieve some consistency in the treatment of victim impact statements at the federal level. It is an important step forward in enhancing the clarity and integrity of federal criminal justice. I commend the bill to the Senate.