Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am pleased to enter this debate on the Crimes Amendment (Victim Impact Statements) Bill 2006. I must say with all genuineness that I congratulate Senator Ludwig on bringing this bill forward. I am pleased to be involved in the debate, because it is a rare initiative by the opposition to bring forward for debate in this chamber a sensible piece of legislation that deserves consideration. Indeed, there are a number of government speakers: Senator Bernardi, Senator Trood, Senator Fifield and Senator Nash—all of whom would like to make a contribution to this very serious and sensibly brought forward debate.

Senator Ludwig has obviously given a lot of thought to this. I know Senator Ludwig has been personally involved in looking at this matter through a number of committees on which he serves. As I say, it is good to see this chamber debating a serious attempt to influence public policy and legislation in this chamber.

I want to at length deal with some of the issues that Senator Ludwig raised but, as a preliminary summary, whilst the government is not necessarily directly opposed to the theory and principles of this bill, it has come forward a little too soon. It is an area where a lot more serious consideration needs to go into drafting, which perhaps may address some of the issues that were highlighted in the two reports to which Senator Ludwig referred and to which I will refer later.

There are a lot of things to be done in bringing forward legislation. Legislation such as this, the prosecution of which takes place in state courts under state procedures, will need some interaction with the state jurisdictions. Senator Ludwig, as I do, comes from Queensland, and Queensland is one of the states that does not have legislative provisions or court rules expressly governing the use of victim impact statements. Queensland legislation provides that prosecutors should inform the sentencing court of the details of any harm caused to a victim by the crime. I have always wondered why Queensland has not made that a bit more regulated, rather than just providing that ‘prosecutors should inform the court’.

Let us look at the disgraceful episode in recent history in Queensland, where Dr Patel really should have been subjected to criminal prosecution. According to the newspapers, Dr Patel made an offer to return to Queensland to face his accusers. Had that happened, and had he been convicted, the victims of crime would certainly have been very welcome contributors to any sentence that might have been passed. I do not want to prejudge the case of Dr Patel, but I do say Queensland has a strange approach to some of these areas. Perhaps Senator Ludwig in his position as an influential member of the Labor Party in Queensland—and the Labor Party controls the state government in Queensland—might have been able to do something about that disgraceful episode.

As you would have read, Mr Acting Deputy President, Dr Patel’s representatives offered for him to come back to face his accusers. Unfortunately, the offer was made in the pre-election period in Queensland. So Mr Beattie, who denies it of course, but knowing how governments work one cannot take that denial at all seriously, and his former Attorney-General, Ms Lavarch, refused to have Dr Patel come back. Why? Because it is the last thing the state Labor Party would have wanted to highlight in the lead-up to the state election. So for reasons which in themselves are almost criminal, the bringing of this person to face his accusers was denied. In fact it was refused by the Queensland Premier and the then Queensland Attorney-General.

Lest people say that I am making some of this up, you only have to look at recent events in Queensland, where the Attorney-General was forced to resign over her handling of this particular issue. It is a disgrace that, in this day and age, matters of criminal justice take second place to the interests of the Labor Party in power in Queensland or elsewhere. So, whilst I in no way impugn Senator Ludwig’s motives for bringing this forward, I just wish he would use the same passion and expertise to get the state Labor government—over which he has some influence in Queensland—to get real, to do the honest thing, when it comes to the administration of justice in Queensland.

The case of Dr Patel will go down in history as one of the worst abuses by any government of the criminal justice system in this country. It is a disgrace which unfortunately, because of the numbers in the Queensland parliament, will go unchallenged and unpenalised. If that sort of thing were to happen in a parliament like this, one could imagine that it would almost bring the government to its knees. Of course, in Queensland, where there is an arrogant state government with a huge majority, they ignore these sorts of criminal justice principles. It has a huge majority, I might say, because things like this were allowed to happen in the run-up to the state election.

Had this issue been raised, had Dr Patel come back to Queensland before 9 September and had the attention of the Queensland voting public been directed to this disgraceful episode in the administration of health in our state, then perhaps Mr Beattie would not have the very substantial majority he now has. He knew that better than I know that. He knew that better than anyone in this chamber knew that. That is why Dr Patel was not allowed back into the country to face these accusations brought against him.

So I do join in the debate. As I said, I think Senator Ludwig needs to be congratulated for bringing this forward. It does raise a very serious issue. As Senator Ludwig has said, a victim impact statement is a statement made by a victim to the court about the harm, loss or injury that they have suffered as a result of the offence that is the subject of the sentencing proceedings. A victim impact statement is, however, only one way of informing the court of the impact an offence has on that victim.

Whilst federal legislation currently does not make specific provision for victim impact statements, the impact that a federal offence has on victims can be taken into account under federal sentencing law or state and territory legislation. The Commonwealth Crimes Act, to which Senator Ludwig has referred, already provides that the personal circumstances of the victim, and any injury, loss or damage resulting from the offence, must be taken into account when determining the sentence to be imposed on a federal offender. As I think Senator Ludwig pointed out, that is provided for in sections 16A(2)(d) and 16A(2)(e) of the Crimes Act.

Federal criminal law also picks up state and territory provisions about victim impact statements. As I have mentioned, all of the states and territories—with the exception of my home state of Queensland—have the legislative provisions, or court rules, expressly governing the use of victim impact statements. The Senate should be aware, however, as I mentioned, that the victim impact statements are only one part of sentencing. The role of sentencing in the criminal justice system is quite complex. Under the rule of law that we live by in this country, the public has an expectation that the laws that make up our criminal justice system will be enforced in accordance with established procedures. Sentencing obviously is a very necessary part of this system. Consistency in sentencing is fundamental to the rule of law and public confidence in the criminal justice system.

As we all know, Australia has a federal system of government where legislative powers are divided between the Commonwealth parliament and the state and territory parliaments. Generally speaking, the administration of criminal justice falls predominantly to the states and territories. All of the criminal courts in Australia are established and operated by the states and territories. Those state and territory courts hear all cases prosecuted under criminal law. This does at times have problems.

In my former role as the federal Minister for Fisheries, Forestry and Conservation, I found that the differences in procedures in state courts led to an unfortunate divergence in sentencing, depending on whether the offence was prosecuted in Queensland courts, Northern Territory courts or Western Australian courts. If an illegal Indonesian fisherman was going to get caught and brought to justice, he would want to get caught and brought to justice in the Northern Territory in preference to Western Australia.

In the Northern Territory, the Northern Territory government has a scheme—although I am not sure that this has not been changed in very recent months—where it imposes a fine, but if you do not pay the fine there is no default imprisonment for the nonpayment. So the whole process was fairly curious. Indonesian fishermen would be fined but they would have no ability to pay the fine. In most other courts in Australia, they would go to jail for nonpayment of the fine, but that does not—or did not—apply in the Northern Territory. So they would walk out of the court and then call upon the Australian government to send them back home. The whole thing was a bit illusory.

Unfortunately, under the fishing legislation you cannot jail fishermen for fishing offences, although in other states jail sentences did result, not from breach of fishing laws but through contempt of court for non-payment of fines. I digress slightly here, Mr Acting Deputy President, but that is an area of the international law, the United Nations Convention on the Law of the Sea, which I firmly believe needs addressing. In my term as fisheries minister, it was one thing I desperately tried to get the international community to move on. While someone once said to me that it will take 50 years to change United Nations conventions, we did at least start to have some movement along that line which may have addressed that issue. I misdirect myself in getting slightly off the subject, but it does highlight the need for uniformity in sentences around the states and territories.

Some of the areas that the Commonwealth can legislate on include the major offences that can only sensibly be dealt with by national legislation and national law enforcement, such as money-laundering, illicit drug trafficking, people trafficking, sexual servitude, transnational crime, cyber crime and major fraud. The Crimes Act deals with the sentencing of federal offenders, the administration of sentences and the release of federal offenders, and this includes most federal sentencing provisions. However, state and territory procedural laws are applied and local sentencing options can as well be ‘picked up’ and applied to federal prosecutions in state and territory courts. This means that a court sentencing an offender for a federal crime in one state or territory may have a different sentencing option than a court in another state or territory trying the same offender for the same crime.

Time is running out. There were some other matters I wanted to go into. I hope some of my colleagues might raise those, but I want to comment briefly on the Australian Law Reform Commission report, which I understand was tabled only a month ago—perhaps a couple of months ago—to which Senator Ludwig referred, and also the report from the Joint Standing Committee on the Australian Crime Commission in their inquiry into trafficking of women for sexual servitude. Both of those reports contained recommendations along the lines of the subject of this bill. The recommendations by those two inquiries are taken very seriously by this government. The government does not always agree with every recommendation made by a committee of the parliament but by and large recommendations by committees are seriously considered by the government. Because both of those reports do make reference to a victim impact statement, it is clearly something the government will take very seriously.

The Parliamentary Joint Committee on the Australian Crime Commission’s inquiry into the trafficking of women for sexual servitude was a committee on which Senator Ludwig served. While I was not on the committee at that time, I can imagine from my more recent involvement with that committee that Senator Ludwig would have had a view on this matter. I have no doubt that he and other senators and members of parliament would have played a role in ensuring that that recommendation did go forward to the government. Many of these committees do serious work: they hear from a lot of witnesses, they have a lot of discussion and try to think things through. The Australian government looks seriously at the recommendations coming from them. I know Senator Ellison has in this case. The minister confirms to me that the Australian government is currently considering the recommendations of both the Australian Law Reform Committee and the parliamentary joint committee about victim impact statements in the context of the wide-ranging recommendations that the ALRC made about sentencing of federal offenders. I understand that the Australian government’s response to both reports will be made public. Work is currently being done in preparing a response to both those reports.

With respect to Senator Ludwig, I suggest that it would be premature to consider the use of victim impact statements in isolation. It is my submission that it would be much better to develop legislation in response to these considered reports rather than to this bill. I suggest that the idea is a good one and is one the government has had in mind for some time. Following those reports and recommendations, the government is looking at this very seriously. If a bill is to be brought forward, it is, with respect to Senator Ludwig and his resources, really something which should be done by a government with the full resources of the Attorney-General’s Department and the Minister for Justice and Customs and all the expertise which he and the departments can bring to this area.

This bill is a fraction premature. It is a good idea and the principle is right. It is not one the government would be supporting but is one we will be looking at very closely. I hope if a bill does come forward from the government in the future that Senator Ludwig will be involved and will play a part in it. (Time expired)

Linda Kirk (SA, Australian Labor Party) Share this | Link to 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.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Firstly, I would like to thank Senator Kirk for her contribution to this debate; it was certainly well reasoned and informed. From my experience in this chamber, there are times when in certain instances both major parties sing from the same song sheet and I think this is one of them. There is a difference in process, I believe, but certainly we recognise the impact there is on victims.

I would also like to commend Senator Ludwig for remaining in the chamber during this debate, because he has introduced the Crimes Amendment (Victim Impact Statements) Bill 2006 and it is a very important issue. I broadly agree with the sentiments and the principles that it is very important for victims to have a strong voice in the legal process. Victim impact statements are a very important part of restorative justice. As Senator Kirk said, they help victims to heal, they help victims to gain a sense of vindication and they help families to believe or gain a sense that justice has been done.

At the risk of repeating what my fellow senators have said, a victim impact statement is a statement, quite simply, made by a victim to the court detailing the harm, loss or injury they have suffered as a result of the offence that is subject to the sentencing proceedings. However, a victim impact statement is only one way of informing a court of the impact an offence has had on a victim. It has been acknowledged that, while federal legislation does not make specific provision for victim impact statements, the impact that a federal offence has on victims can be taken into account under federal sentencing law or under state and territory legislation.

Senator Kirk identified South Australia as being the first state to introduce victim impact statements. As I have mentioned, such statements do help victims to heal. A number of important precedents have been taken in the South Australian parliament where some victim impact statements have assisted in sentencing. It is important that victims have this chance and we have to remind ourselves exactly why victims of crime need to have this opportunity.

My question is: can a third party ever do justice to the trauma, the suffering and the pain of a victim? We have many eloquent, well-trained legal counsel and prosecutors in this country, and we are very fortunate in that regard. But how can they truly share the pain and suffering of someone who has suffered as a victim of crime?

I would like to incorporate into Hansard a couple of victim impact statement examples from my home state of South Australia. One particularly heinous crime involved the sexual abuse of young children by former Magistrate Peter Liddy. A victim of crime said in his statement:

Yes, I hope that Peter Liddy is found to be guilty of these crimes—he deserves it. He is a sick man who has used his position in society to gain access and opportunity to molest little boys. How could he work in the court as a magistrate and ‘pass judgement’ on other people’s crimes when he is committing one of the most shameful and disgusting crimes? I hope that he is put in jail for life. He may be able to justify his actions in his own mind or simply deny they ever took place. However, those whose lives he has effected will be left with this for life. Hopefully his peers will recognise his ill effect on society and do what is right and just.

That was from a victim of Peter Liddy. Of course, the victim also has parents and the parents are victims as well, because gruesome situations like this tear a family apart. The parents of this unfortunate young man were also entitled to incorporate into the court a victim impact statement. Once again, I will quote:

All I can say is that Mr Liddy is a very sick man who has manipulated my son in a very, very cunning way. Unfortunately, it seems my son is not the only one and I can only hope that he—

that is, Mr Liddy—

is put away for a very long time and can no longer impose his will on any other children. This monster named Liddy ... guilt for not seeing Liddy for the kind of man that he is, yet I also do understand that monsters like Liddy have made a life out of deceiving parents with all the right words and motions. For the beautiful son you so violently took all those years ago, I pray, Mr Liddy, that your God deserts you and that you rot in hell.

I incorporate those statements, because I do not believe that any counsel or anyone not intimately involved with the family of victims of this crime could do justice to the pain that has been done.

So broadly I support victim impact statements, especially when it is a crime that robs someone of their life—and not simply in the case of a murder but when it robs them of their ability to live a fulsome life, such as in the case of Mrs O. This is another South Australian case. Mrs O is a 77-year-old woman who lived alone in a South Australian suburb. She was widowed eight years ago. She answered her door unwittingly. A man gave her a brochure and returned some 10 minutes later claiming he had forgotten something. He broke in and demanded money, ostensibly for drugs. When she could only produce $50, this 77-year-old widow was brutally bound and raped—not once but twice. The guilty party took valuables, including money, jewellery and a video cassette recorder.

Mrs O was traumatised by this—but how traumatised? Essentially, the last 10, 15 or perhaps 20 years of her life had been taken from her. The victim impact statement from her family graphically described the effect that these crimes had upon this lady. She had previously enjoyed her home and her garden. She enjoyed having her children, her grandchildren and great-grandchildren visit her. She was a happy and free spirit. That was taken from her. She found cause to be angry, embarrassed and ashamed, fearful and disbelieving of the situation in which she found herself. She felt helpless. She has completely lost interest in herself and she now has to live with her daughter and son-in-law. She requires assistance with bathing and with eating. She has effectively reverted to a childlike state. Members of her family quite rightly consider that her life will never be the same again. She now lives in a single room. She has lost her confidence and sense of self worth and she lives in constant fear.

So victim impact statements do have an important role to play in sentencing and sharing with our judiciary the heinous nature of the crimes that have been committed. But of course they are only one part of sentencing. Under the rule of law, the public has an expectation that the laws that make up our criminal justice system will be enforced with established procedure—not only legislative procedure but also common law rulings. Sentencing is a necessary part of this system, and consistency in sentencing is fundamental to the rule of law and to public confidence in our criminal justice system.

Australia, a great federation, has a federal system of government where legislative powers are divided between the Commonwealth parliament and the state and territory parliaments and where the administration of criminal justice falls predominantly to the states and territories. All criminal courts in Australia are established and operated by these same states and territories, and these state and territory courts hear all cases prosecuted under Commonwealth criminal laws. Some of the areas—as we have heard, but I shall repeat—which the Commonwealth can legislate on include money laundering, illicit drug trafficking, people-trafficking, sexual servitude, transnational crime, cybercrime and, of course, major fraud.

Part IB of the federal Crimes Act deals with the sentencing of these federal offenders, the administration of these sentences and, of course, the release of federal offenders. This includes most sentencing provisions. However, state and territory procedural laws are applied and local sentencing options can be effectively picked up and applied to federal prosecutions in state and territory courts. This means that a court sentencing an offender for a federal crime in a particular state or territory may have different sentencing options to a court in another state or territory trying the same offender for the same crime. So not only do the states and territories need to strive for consistency within their jurisdictions but also the Commonwealth needs to ensure that courts in different states and territories are taking a consistent approach to sentencing federal offenders for the same crime.

It is important to note that there are differences in individual sentences and that this does not equate to inconsistency or disparity in the way that two offenders have been treated. This is what our judiciary are trained for. They operate within the rule of law to establish the most appropriate penalty. In my humble opinion, it is not desirable to expect that every offender across Australia will receive an identical sentence for the same offence. Judges have a discretion—and it is an important discretion—in sentencing that allows them to take into account an individual’s particular circumstances, including their level of culpability. So two co-offenders may indeed receive different sentences due to particular characteristics of their role in committing a particular crime, and a distinction in this regard is usually made between the consistency of approach to sentencing and the actual sentencing outcome. We also have to remember that judicial discretion is also an essential part of the sentencing process and properly allows for all the circumstances of the case to be considered. Sentencing cannot and should not be reduced to a formulaic approach. What we need to do is to ensure that an appropriate framework is in place so that different judges in different jurisdictions operating with the overarching framework make consistent decisions.

While the victim impact statement is worthy of our support at a federal level, I am unable to recommend to my colleagues that they support this particular bill, because the Australian government has already received a couple of reports, which Senator Kirk mentioned earlier, as did Senator Ian Macdonald. One of these reports is an Australian Law Reform Commission report. This was commissioned by the government, which asked the Australian Law Reform Commission to review sentencing at the federal level. The commission’s report, called Same crime, same time: sentencing of federal offenders, was tabled in parliament earlier this year and is now publicly available. The report deals with a wide range of issues relevant to the sentencing of federal prisoners. The report is the product of a 23-month inquiry into whether part 1B of the Crimes Act 1914 is an appropriate, effective and efficient mechanism for the sentencing, imprisonment, administration and release of federal offenders and what, if any, changes should be made. It identified a number of new crimes under the federal legislative umbrella, including sexual servitude, child sexual tourism and of course terrorism offences.

The report made over 100 individual recommendations—140 in total, I think—on a broad range of issues relating to the sentencing of federal offenders. As I mentioned, the recommendations are wide ranging. They include the introduction of a new dedicated federal sentencing act, the creation of an office of the management of federal offenders and the establishment of a federal parole board. The commission also called for the expansion of the role of the Federal Court to provide for original trial jurisdiction for specified federal crimes and to enable it to act as a national court of criminal appeal in federal matters. Some of the proposed reforms represent a significant shift in federal policy and practice, and they obviously will require some extensive further consideration. The report recommends that federal sentencing legislation should provide minimum standards for the use of victim impact statements in the sentencing of federal offenders. The report suggests that, once all states and territories meet the minimum standards, the federal legislation could then be rolled back so that only the state and territory legislation is used.

There was also another report, a parliamentary joint committee report, which Senator Ian Macdonald also touched upon. This is a supplementary report of the Parliamentary Joint Committee on the Australian Crime Commission’s inquiry into the trafficking of women for sexual servitude. It also recommended the use of victim impact statements in the specific context of people-trafficking and sexual servitude offences. The report had three essential recommendations. The first is:

The Committee recommends that the ACC continue its involvement in law enforcement strategies against sexual servitude and trafficking in women.

The second is:

The Committee recommends that a review of the new legislation take place a year after its implementation, and as part of that review, consideration be given to amendments to include the provision to the court of victim impact statements specific to these offences, similar to those contained in the NSW Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004.

The committee further recommended:

... that the ANAO consider undertaking an evaluation of the results of the National Action Plan, after three years of operation.

These are commendable and they will be considered by this government because this government takes crime and the impact of crime not only on the community but also on individual victims very seriously. I commend Senator Ludwig, who has introduced this bill, for his interest in it. I say that it is something that requires a bipartisan and very strong approach. But I also to say to him that I am unable to recommend to my colleagues that we support this bill, because I feel that it is premature. I feel it does not fully involve the government agencies. Senator Macdonald said earlier that he believes this type of legislation needs to be enacted by government after full consultation with the Attorney-General’s Department and with the full support of every agency. So, whilst we can commend the sentiments, the thoughts and the interest that Senator Ludwig has in this, we need to take it in a broader context.

This government is currently considering the Australian Law Reform Commission report and the report of the Parliamentary Joint Committee on the Australian Crime Commission on the recommendations about victim impact statements in the context of the wide-ranging recommendations that the ALRC made about the sentencing of federal offenders. The Australian government’s response will be made public. Work is now being done preparing a response to both of these important reports.

I would like to say again that it would be premature to consider the use of victim impact statements in isolation. Yes, they have a key role in sentencing, but we should not consider them in isolation. We need to work to develop better legislation in response to these considered reports rather than simply adopt this bill. This government is not silent when it comes to the pain experienced by victims of crime, but there needs to be a comprehensive approach that can only be done by working across many government agencies and with the full support of the federal Attorney-General’s office.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The Greens support the principles of restorative justice that underpin the Crimes Amendment (Victim Impact Statements) Bill 2006. Restorative justice is about focusing on repairing the harm caused by criminal actions, and that relies on a cooperative process that includes all involved—the community, the offender and also, importantly, the victims. The Greens believe that the safety and the security of the community require an impartial justice system that takes into account the experiences of victims that have been harmed but also ensures that the rights of offenders are there for them to present mitigating factors. I will talk a little later about ways to achieve that.

This is a view that is reflected in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which says:

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

                 …         …           …

Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system ...

The experience in many state and territory jurisdictions has shown that victim impact statements, when properly included within the justice processes, have a role to play in ensuring that harm to individuals and the community is considered. In many cases, victim impact statements can be a way of ensuring some closure or healing for victims of crimes, but this is not always the case, and I will go on to talk about that later.

Victim impact statements can reduce the alienation that many victims have from the criminal justice process by providing them with a direct role in proceedings. They can increase the transparency of the justice system and ensure that it is more responsive to the needs of the community. They can also play an important role in rehabilitation, with offenders offered the opportunity to reflect on the harm that they have caused. Done properly, this process can also be an important antidote to the law and order politics that sometimes exploits victims by claiming that their needs have been ignored.

But there can also be problems with victim impact statements. As the Australian Law Reform Commission, in its review of part 1B of the Crimes Act that it completed this year which examined this issue and produced a discussion paper for the inquiry, said:

Problems with victim impact statements include that they can raise a victim’s expectations about sentence, which are not subsequently fulfilled; that they can expose offenders to unfounded allegations by victims; and that they can lead sentencers to give disproportionate weight to the impact of a crime on a victim, to the detriment of other relevant considerations; and they can skew an otherwise objective and dispassionate process by the introduction of emotional and possibly vengeful content.

They went on to say:

The Victorian Sentencing Committee noted that if victim impact statements were introduced and were not made compulsory, disparity could arise in the sentencing process: more severe sentences might be imposed in cases in which victim impact statements were available than in cases in which they were not, even if the culpability of the offender were the same. Victim impact statements may also result in inconsistent sentences where one victim asserts greater psychological harm than another more robust victim.

There are perils for the community and for victims in creating expectations that mere punishment of an offender will restore the harm caused. I will go on to talk about that issue later.

The prisoner advocacy group Justice Action, with whom I worked before entering into parliament, argues that ideally the acknowledgment of the harm caused to the victim and the process of sentencing should be separate. They are very supportive of the benefits that victim impact statements can bring to the criminal justice system, but it is about how they are incorporated in that process. They are supportive of separating those two issues of victim impact statements and sentencing, because putting them together can create a perception or a reality for all those involved in the process that it is in some way possible to equate one person’s pain with another person’s pain. We all know that that is not something that we can assess; we cannot assess whether one person’s pain equals another person’s pain. We all recognise that vengeance has no place in solving problems. If victim impact statements are incorporated, it needs to be clear that it is not for the purpose of vengeance. It needs to be very clearly articulated that that is not a part of the process.

The other issue, which is one I touched on earlier, is that victim impact statements can provide an opportunity for people to have real closure in dealing with an issue. That is not always the case. Indeed, there are a number of cases going on at the moment where relatives or victims are involved in the sentencing process, which means that every time parole or bail or other legal proceedings take place they are reminded of and have to relive the horrific experience that they had or that their family members experienced. Just this weekend in a newspaper, one woman in that circumstance talked about how it had damaged her life because she was continually reliving this horrific experience that she had had.

There can be a role for victim impact statements. Indeed, they are part of the concept of restorative justice that the Greens and I are very supportive of. But the way in which they are done becomes very important. Some people argue, and this is an argument that I would make, that victim impact statements are at one end of the restorative justice spectrum and that it is important that we do not just assume a one-dimensional relationship between punishment and victim satisfaction. Engaging the offender in restoring the harm that they have caused and seeking to help them to address the reasons why they caused that harm are really important parts of restorative justice. Victim impact statements have a very important role to play in restorative justice, and there are other components that are also important in the process of restorative justice. The needs of the victim should be central to a process of restorative justice, but they are not the only components of that.

The process for and the guidance about using victim impact statements are crucial in ensuring that victim impact statements have a proper role to play in the justice system. This bill adopts a formula that has been used in many states and territories throughout Australia. It ensures that the victim—or, if the victim is deceased or unable to appear because of age or impairment, a relative or a dependent of the victim—is able to file a statement to the court. This bill makes that link with sentencing so that it can be considered during the sentencing process. A victim is restricted to being a natural person and the harm is defined reasonably narrowly, relating to physical injury, psychological harm or economic loss. The particular experience and nature of the harm caused to the many victims of sex offences is acknowledged, which is an important and commendable feature of this bill. A victim is not required to make a statement, and the content of the statement must be made available to the offender. In this bill, the weight to give to the statement is left to the discretion of the court, which is of paramount importance. The court must be free to balance the various considerations that must be weighed in arriving at an appropriate sentence.

As people will know, the Greens have been very critical of a number of pieces of legislation which have come before this Senate that relate to areas of the criminal justice system. A number of pieces of legislation that we have dealt with, such as the antiterrorism legislation, have been a horrendous attack on human rights. The right to a fair trial in an open court, the right to remain silent, the right to a lawyer of your choice, and the freedom from detention without charge or trial have all been eroded as a result of legislation that has gone through this parliament with the support of both of the major parties.

There are many problems in our criminal justice system—for example, too many people in our prisons, particularly Aboriginal and Torres Strait Islanders. Unfortunately, we see the law and order drum being beaten at every election, particularly at a state level, by both of the major parties. It contributes to the problem when you have situations where parties are seeking to out compete each other with the penalties and the length of the prison sentences that they can impose. The Howard government has also taken away the right of prisoners to vote, which further alienates them from the community, rather than involving them in the process of restorative justice that I have been speaking about. How can one expect a prisoner to respect the laws of the country when they do not get any say in who the people are who make the laws?

We have opposed all of those measures, but we are always willing to support sober and sensible reform to the criminal justice system—reform that takes us in the direction of supporting restorative justice, which is so central to our focus on the justice system. So, whilst this bill is not ideal, we think that on balance it is worth supporting the bill, because it does take us down that direction of restorative justice. The particular experience of victims should be acknowledged in our justice system, and victim impact statements can be part of the strategy to address that.

I certainly hope this legislation is a sign of some more proposals around restorative justice coming from the Labor Party. That would be fantastic to see, particularly at a state government level, and it would be something that we would be very supportive of. So, in the sense that this bill contributes to the fundamentally important principle of restorative justice, it is a bill that we are able to support.

Russell Trood (Queensland, Liberal Party) Share this | Link to 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)

Mitch Fifield (Victoria, Liberal Party) Share this | Link to this | Hansard source

At the outset, I would like to acknowledge Senator Ludwig’s good and sound motives in proposing this legislation, the Crimes Amendment (Victim Impact Statements) Bill 2006. Senator Ludwig is one of the serious and substantial figures on the other side of this chamber. I want to acknowledge the motives that have prompted this particular piece of legislation, and I join with Senator Ludwig and my colleagues in fully supporting the concept of victim impact statements.

The whole concept of a victim impact statement is one which was prompted by some of the most ghastly crimes that have ever occurred in Australia. Horrific murders such as those of Anita Cobby and Janine Balding helped to renew the focus on the impact of crime on Australians, not only on the direct victims but also on those around them, such as their families, who are victims in their own way and in their own right. The murders of Anita Cobby and Janine Balding, those tragedies, captured the public mind in a way that had not really happened since the disappearance of the Beaumont children and the disappearance of Eloise Worledge. These two particular murders were worse, in the public mind. They captured the public mind even more because, unlike the Beaumont children and Eloise Worledge, we knew the actual horror of what happened to those two women. It was, I think, the grace and dignity of people like the parents of Anita Cobby, Grace and Gary Lynch, that helped to highlight the need to consider the rights of victims of crime and the need to take a fuller account of them when sentencing.

Not surprisingly, it was these sorts of crimes against the person that initially prompted the concept of victim impact statements in the state and territory jurisdictions. South Australia, along with New South Wales, was the pioneer of victim impact statements. The South Australian Labor Attorney-General in the 1980s, Chris Sumner, introduced a pilot scheme introducing the concept of written statements being presented to the court about the injury or loss that had been suffered by the victim. That trial was seen as a great success and legislation was consequently drafted and enacted in 1988. I would like to make brief reference to a decision of the Victorian Supreme Court of Appeal in 1988 by Justice Charles, who noted:

It would be quite destructive of the purpose of these statements if their reception in evidence were surrounded and confined by the sorts of procedural rules applicable to the treatment of witness statements in commercial cases. The reception of victim impact statements must, it seems to me, be approached by sentencing judges with a degree of flexibility; subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter.

It is worth quoting Justice Charles because it is clear from his finding that sentencing judges do see great value in victim impact statements—that it is not only the victims themselves who see the worth in them but also the judges that preside over these cases. Most states have accordingly followed along the path of South Australia, Victoria and New South Wales. In fact, all states and territories, except for Queensland, now have legislative provisions or court rules which expressly govern the use of victim impact statements. Even the Queensland legislation provides that the prosecutor should inform the sentencing court of the details of any harm caused to a victim by the crime.

Clearly, victim impact statements are just one way of informing of the impact of an offence on a victim. Federal legislation at the moment does not make specific provision for victim impact statements, as has been made clear in this debate so far. However, the impact of a federal offence on a victim can be taken into account under federal sentencing laws or, indeed, under state and territory legislation. Specifically, the Commonwealth Crimes Act 1914 provides that the personal circumstances of the victim and any injury, loss or damage resulting from the offence must be taken into account when determining the sentence to be imposed on a federal offender. So it is not as though the present circumstance is one where the victim’s interests, plight or suffering is not taken into account at the federal level. It clearly does already happen.

The public have a quite reasonable expectation that under the rule of law, when it comes to the criminal justice system, there will be sentencing in accordance with established procedures and consistency in sentencing. It is fundamental to the confidence of the public in our system of justice that there is confidence in those things. Again, as has been made clear already in this debate, the administration of criminal law predominantly falls to the states and territories, which establish the courts in the states and territories. The Commonwealth can legislate in relation to a number of things, particularly things like money laundering, illicit drug trafficking, people trafficking, sexual servitude, transnational crime, cyber crime and major fraud. So there are things that clearly do fall under the Commonwealth’s jurisdiction.

I will not cover again the territory of the fact that there have been two significant reports into this area: the Australian Law Reform Commission’s review and the joint parliamentary committee’s inquiry. As has been expressed, the view of the government is that, when looking at victim impact statements, we need to take into account the overall context of sentencing and, when addressing other issues in this area, the government feels that it is better to consider these things together consistently.

While the motives of Senator Ludwig are applauded and appreciated, it is very much the view of the government that now is not the right time. We should take our time. We should make sure that we get it right. We should make sure that we take into account all relevant factors in relation to sentencing policy so that we ensure that we get this right. As I have said, it is not as though these matters are not taken into account under the current federal sentencing regime. There is provision for that to happen. It does happen. The field is not vacant in relation to this matter. We look forward to a time when we can in fact put legislation into this parliament that will address the concept of victim impact statements. (Time expired)

Debate interrupted.