Russell Trood (Queensland, Liberal Party) Share this | Hansard source

I welcome the opportunity to participate in this debate this afternoon on the Crimes Amendment (Victim Impact Statements) Bill 2006, because this is a matter of considerable importance. It is certainly of great importance to those people who might find themselves victims of criminal activity. In many ways, no group of people in the community deserves our attention more closely than those who may suffer from those circumstances.

I thought I might begin my contribution this afternoon by drawing the Senate’s attention to the nature of victim impact statements. I think some of the other contributors to this debate have alluded to this, but it is useful to point out that the bill that is before us defines victim impact statements as follows:

victim impact statement means an oral or written statement ... containing details of the harm suffered by a victim of an offence arising from the offence.

The bill goes further and seeks to explain the nature of the harm that is contemplated. It refers to:

(a)

physical injury;

(b)

psychological or emotional suffering, including grief;

(c)

contraction or fear of contraction of a sexually transmissible medical condition;

(d)

pregnancy suffered as a result of criminal activity; and

(e)

economic loss.

It is a comprehensive list of the kinds of consequences from which people suffer as a result of criminal offences. Other provisions of the bill set in place the mechanics as to how this information could be drawn before a court in the circumstances in which it might be necessary.

I think it is useful to make the point that VISs, or victim impact statements, were once largely unknown in criminal law. They are a relatively recent innovation in the sentencing process. Perhaps that reflects the fact that, for a long time, the criminal law was conservative on these issues, anxious that the sense of justice—the purity of justice—might be infringed upon. I suspect many legislators and perhaps even the legal profession thought that it might be at risk by introducing elements potentially of retribution into the justice system.

But we have moved on from there. We have now reached a position where, increasingly around the criminal law world, if not almost exclusively around the criminal law world, victim impact statements are an integral part of the criminal justice system. That is certainly true in Australia. Some of the other speakers in this debate have alluded to the fact that all of the states and, I think, territories in Australia have introduced this process into their criminal legislation—New South Wales in 1987, South Australia in 1988, Tasmania and the Northern Territory in 1991, Victoria in 1994 and Western Australia in 1995. In my own state of Queensland, there is an opportunity for a victim impact statement to be presented to the court, although it is not formally included in the legislation quite as is the case in other states.

There are differences between the states, and Senator Kirk alluded to these differences. In her remarks she made the point that the states have approached these questions in different kinds of ways and they have different mechanisms by which victim impact statements can be introduced to the court. Indeed, there are differences in relation to the kinds of crimes for which VISs are deemed relevant. Some states limit VISs to violent crime; others to indictable offences. There are permutations of these arrangements across the states, but I think the underlying point is that they are now a critical part of justice system throughout the states and territories. This bill that Senator Ludwig has introduced presses the Commonwealth to now take a similar attitude.

Before I explore this in a little more detail, I think it is useful to point out to the Senate that, in fact, the Commonwealth Crimes Act already acknowledges the importance of VISs in its provisions. Subparagraphs (d) and (e) of section 16A(2) provide for the opportunity for personal circumstances of the victim and any injury, loss or damage resulting from an offence to be taken into account. In fact, the legislation is prescriptive and requires that these things be taken into account in determining the sentence that is to be imposed on a federal offender. So it is not as though we have neglected this matter at a Commonwealth level over the years; in fact, there is already provision in the legislation.

I suppose Senator Ludwig’s proposal is that we go further and more comprehensively introduce and seed these ideas within the criminal legislation. This bill seeks to take things further. It does so in the light of several reports, which I think other participants in the debate have alluded to. Two have been mentioned frequently during the course of the debate this afternoon, one of which is the Australian Law Reform Commission’s report Same crime, same time: sentencing of federal offenders, which was tabled in the parliament in June 2006. That report, as has been noted, proposed the introduction of victim impact statements and, as I think I heard Senator Bernardi mention, proposed the establishment of minimum standards for those statements. The other report, introduced into the parliament in August 2005, is the report of the Parliamentary Joint Committee on the Australian Crime Commission inquiry into the trafficking of women for sexual servitude. It made a similar point: that it was desirable for impact statements to be introduced in relation to trafficking and sexual servitude offences. That report suggested that the model that might be appropriate was the model that was used in New South Wales under the 2004 act.

So there are federal reports and recommendations which press this matter. I think it is clear that the issues that Senator Ludwig has raised reflect a growing trend not only at the wider state and territory level but in the Commonwealth to pay closer attention to these issues. But I take the view that other senators on this side of the chamber have taken during the course of this debate and suggest that, rather than passing this bill, the better course would be to ensure that there is widespread consultation with other agencies with regard to this proposal, to discuss the matter widely amongst members of the profession in jurisprudential circles and, in light of those considerations, to introduce a more comprehensive reform of the Crimes Act. I think that would be a preferable course to follow than passing this bill.

The point that I think perhaps deserves closer inspection, though, is that, although there is now widespread legislation throughout the states and territories, and indeed throughout the common law world, with regard to victim impact statements, the matter is not uncontroversial in jurisprudential circles, amongst criminologists and, indeed, amongst members of the legal profession. Were we thinking of going down this course—and there is certainly a strong view that this is desirable—it is useful to understand the debate with regard to the issue.

I thought I might take the opportunity to inform the Senate of some of the issues that have been raised with regard to victim impact statements. In doing so, I draw the Senate’s attention to a report of the Australian Institute of Criminology by Dr Edna Erez. The report was written some years ago, in September 1991, but I recommend it to senators because it very helpfully lays out the arguments in favour of VISs and, indeed, puts the counterarguments with regard to them in a very constructive way. I thought I might draw the attention of Senate to some of these arguments both for and against victim impact statements. Dr Erez discusses the arguments in favour—and there are at least nine or 10:

The effectiveness of sentencing will increase if victims convey their feelings ... victim participation will provide recognition to victim’s wishes for party status and individual dignity ... It will result in increased victim cooperation with the criminal justice system ...

And, in the context of traumatised victims of crime, this is not unimportant, of course. Further:

The provision of information on the harm suffered by the victim will increase proportionality and accuracy in sentencing, and remind judges, juries and prosecutors that behind the ‘state’ is a real person with an interest in how the case is resolved.

Also, fairness ought to be a consideration:

... the person who has borne the brunt of the offender’s crime should be allowed to speak.

From a psychological point of view:

... a criminal justice system that provides no opportunity for victims to participate in proceedings would foster greater feelings of helplessness and lack of control than one that offers victims such rights.

Victim involvement and the opportunity to voice concerns is necessary for satisfaction with justice, psychological healing and restoration.

I think I heard Senator Nettle speaking on that matter at some length. There are a number of other arguments. Some argue that retribution is enhanced. I daresay there has to be an element of retribution in most criminal justice systems. My personal view is that one would not want to take that too far. Dr Erez goes on to say:

Victim participation enhances deterrence ... [and] might also promote rehabilitation ...

There are a considerable number of arguments against the VISs, and Dr Erez helpfully lays them out:

Some argue that allowing victims’ input will undermine the court’s insulation from unacceptable public pressures ... substituting the victims ‘subjective’ approach for the ‘objective’ one practised by the court.

Conceivably, similar cases could be disposed differently, dependent upon the availability of a VIS to the judge ...

Prosecutors object to victim input in sentencing because they fear that their control over cases will be eroded and the predictability of outcomes reduced.

Defence lawyers, not surprisingly I think, naturally view VISs with some scepticism. There are:

Concerns over delays and additional expenses for an already overburdened system if victims are allowed to participate ... the criminal law already takes into account the harm done to the victim in the definitions of crime and mitigating or aggravating circumstance.

Concerns have been raised in relation to the impact of VISs on victims’ health and welfare. There are other concerns that it might actually aggravate victims’ psychological wellbeing rather than precipitating or facilitating the process of healing, and there are a range of other objections. This matter is not straightforward, as might seem to be the case by the unanimous embrace of these ideas within the criminal justice system.

In her paper, Dr Erez concludes by saying:

Research has questioned many of the assumptions underlying the arguments against the use of the VIS, and has not confirmed the fears expressed by those who object to allowing victims’ input into the sentencing decisions.

She, in general, comes to the conclusion that this is a helpful process. She further says:

Reports from jurisdictions that have introduced the VIS suggest that victims’ input does not raise practical or legal problems.

It is interesting. This comes from a jurisprudential perspective, but we also have the results of other surveys. Dr Erez’s paper is a speculative piece from 1991, but we now have quite a considerable body of research which has explored the consequences of introducing victim impact statements over a period of time. I have been able to discover several pieces which deal with this kind of research. There is a paper by Andrew Ashworth which appeared in the Criminal Law Review. It is interesting, because he alludes to material from other jurisdictions in relation to VISs. In one part of his paper he says:

... Canadian research suggests that completing a VIS does not, of itself, increase victims’ satisfaction with the system or their willingness to co-operate with the system in the future. Most victims found the completion of a VIS to be a positive experience, but their overall views depend on several other factors, particularly information on the progress of their case and information about the criteria for decision-making at various stages.

In the short time that is available to me I thought I would draw the Senate’s attention to a conference paper that was delivered here in Canberra in February of this year by Mr Michael O’Connell, the Victims of Crime Co-ordinator in South Australia. He was reporting the results of a quite comprehensive survey that he had undertaken in relation to this matter. His paper is particularly interesting because it focused on the reactions of judges and magistrates with regard to victim impact statements, so we have heard from the jurisprudential side. I have some more material and were I to have the time I would like to report that in relation to actual victims, but I am not sure that I will have that opportunity. Let me allude to Mr O’Connell’s remarks, because he makes interesting observations with regard to members of the judiciary and victim impact statements. He says:

Most justices, judges and magistrates felt that impact statements sometimes or often contained useful information that would not otherwise be available to them. No justice, judge or magistrate found impact statements “never useful” when sentencing offenders. Three quarters of justices said impact statements were useful in most cases, and about two thirds of judges said impact statements were useful in all cases where they are submitted. All justices and judges felt that impact statements were most useful when sentencing offenders for violent crimes, with some justices and judges specifically noting sexual assaults and domestic violence.

From across the spectrum of those involved in the criminal justice system—whether they be judges, members of the judiciary; whether they be from the practising part of the legal profession; whether they be the victims themselves; or whether they be the academic side of the profession, those who comment on these things—it seems clear that on balance, notwithstanding the arguments that were once made quite compellingly for the dangers of taking this course, there is a view that victim impact statements are a valuable part of the criminal justice system, and I think that is the view the government takes. (Time expired)