Victims Compensation Amendment Bill

About this Item
SpeakersHartcher Mr Chris; Saliba Ms Marianne; Gaudry Mr Bryce
BusinessBill, Second Reading

Page: 6672
    Second Reading

    Debate resumed from 31 May.

    Mr HARTCHER (Gosford) [9.25 p.m.]: The victims compensation system in this State was introduced many years ago by the Askin Coalition Government and it has proved to be a very important part of the social armoury of our society. The difficulty with the scheme, along with all compensation schemes—such as motor accident compensation schemes or workers compensation schemes—is controlling costs. The bill has some good points, which I am happy to acknowledge, and an aspect devoted to cost control. The good points include: providing counselling services; extending the right to obtain compensation for funeral expenses to carers or to persons in a gay relationship; and improving procedural matters in relation to awarding compensation to the families of victims, which will ensure that family members generally can be paid for up to 20 hours of counselling, and that is a good step forward. Family members may not be the direct victims of the crime but as indirect victims they suffer, as we all know, as much as the direct victims suffer.

    In February the Parliament received a report from the Joint Select Committee on Victims Compensation, which is chaired by the honourable member for Bankstown. A number of the amendments in this bill flow from the committee's recommendations. The focus of the report was the reigning in of the costs of administering the scheme. The recommendations of the committee included: a new emphasis on rehabilitation; an increase of $25,000 for maximum compensation payable to family members; provision of counselling services; changes to the category of moderate psychological injury, which I will say more about; and changes to administration procedures. Crucially, the report also identified approximately $150 million outstanding in the backlog of claims and estimated that, while around 8,400 applications are received each year, the tribunal makes only 7,800 determinations each year. So there is a compounding backlog of around 600 determinations a year. Applicants are experiencing longer and longer delays. Some claims are taking up to 18 months to process.

    Further, the report estimates that administration costs have increased by 60 per cent since 1998—a considerable increase. The budget tells an interesting story. It reveals a total decrease of $14 million—$7 million in unspent allocated funds and $7 million in the allocation this year. Yet the Government has given an additional $8 million to its fine recovery agency. Effectively, it has decreased the budget for the tribunal by some $7 million. The budget papers show that it is anticipated that the Victims Compensation Tribunal will make awards in 4,800 cases this year, which is far fewer than the number of cases being registered with it, for an estimated total of $87.3 million. That is a zero increase over last year's expenditure and 7 per cent less than the allocation last year.

    It is clear that there are ongoing problems with the tribunal. While there are court delays across the board, there is a very determined effort to reduce delays in both the District Court and the Supreme Court, and those courts deal with a wider range of issues. The Victims Compensation Tribunal is a specialised tribunal. I am concerned that the bill, combined with a reduction in the budget, may not result in a reduction in that backlog. This bill does not address the backlog. Equally significant to the backlog is item [22], which seeks to insert a new subclause (3) of clause 5. The Coalition does not support that amendment, and in the other House will move to have it omitted from the bill by voting against it. I am surprised that members opposite would support such an amendment. Item [22] states:
        [22] Schedule 1, clause 5 (3)
            Insert after clause 5 (2):
                  (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences:
                    (a) armed robbery,

                    (b) abduction,

                    (c) kidnapping.

    Any person who receives a category 1 psychological or psychiatric disorder as a result of an assault, such as an assault occasionally actual bodily harm, an assault occasioning grievous bodily harm, a common assault or attempted murder, will not be entitled to compensation for category 1 psychological or psychiatric disorder. This proposal is hidden away in the bill and is against the spirit of victims compensation. I will be interested to hear the contribution of the honourable member for Illawarra, who no doubt will speak in glowing terms of this bill and will say that it has the support of her electorate. I will be prescient and suggest the honourable member will say that this bill is the greatest thing that has happened in the Illawarra and that people are talking about this latest Government initiative in all the local clubs and pubs.

    I am sure, however, that the honourable member for Illawarra will not address this provision, nor will she concede that it provides that a person can, as a result of having life almost beaten out of them, being bashed with an iron bar or stabbed with a knife, suffer category 1 psychiatric or a psychological disorder, but that person will not receive one cent for compensation under this legislation—although he or she would receive compensation if he or she were involved in an armed robbery. What is the Government's justification for this bill? It can only be to save money. The principle underlying its introduction was that victims of violence should receive appropriate compensation for physical, psychiatric or psychological injury.

    No doubt the Government will assert that people can receive compensation for category 2. But the fact is there will be no compensation for category 1 psychological and psychiatric disorder. What is the rationale for that? The Government will save money at the expense of people who suffer psychological or psychiatric problems as a result of being victims of assault and other forms of violence. The Coalition opposes this amendment and will move an amendment in the upper House to delete it. If I may be as prescient of the amendment as I am about the speech we are about to hear from the honourable member for Illawarra, I suggest that the amendment might well be successful in the other place. With regard to this bill the Combined Group of Community Legal Centres submitted, inter alia:
        2. We are concerned about the proposal to "provide that compensation for chronic psychological or psychiatric disorder that is moderately disabling (i.e. non-permanent psychological injury) will be available only to victims of armed robbery, abduction or kidnapping".

        We note that the recommendation of the Joint Select Committee on Victims Compensation was to specifically retain compensation for non-permanent psychological or psychiatric disorders in cases of sexual assault and domestic violence. We note that the Bill excludes these categories.
    The honourable member for Illawarra should note that this bill will provide that sexual assault is no longer a ground for the payment of compensation for psychological or psychiatric disorder, category 1.

    Ms Saliba: That is not what the bill provides.

    Mr HARTCHER: The honourable member for Illawarra says that is not what it provides, but she and every member of this Parliament knows full well that that is exactly what it provides. The bill states that a person can only receive category 1 compensation if he or she were a victim as a result of an offence of armed robbery, abduction or kidnapping. I am sure that once again in this regard much will be said about compensation for category 2 disorders. The Parliamentary Secretary, the honourable member for Newcastle, will say that victims will receive compensation for category 2 psychological and psychiatric injuries. Women who have been the victim of sexual assault, domestic violence and violence generally experience quite severe psychological injury, whether of a chronic nature or a temporary disorder and therefore resolvable. Under this legislation they will now be denied their compensation.

    I wonder what the women's action groups in the electorates of Government members will say about this bill when these facts are drawn to their attention. I wonder what women's refuge centres will say about Government members who support the bill. The more I talk about the shortcomings of the bill, the more inclined I am to call a division on it so that the names of honourable members who vote to deny compensation to victims of sexual assault can be recorded—especially female members on the Government benches

    Mr Campbell: Why do you say "especially female members"? That is discrimination.

    Mr HARTCHER: I would be very keen also to see where the former Lord Mayor of Wollongong stands on this matter.

    Ms Saliba: And where the male members of the Opposition who also support this bill stand.

    Mr HARTCHER: The male members of the Coalition are not supporting this proposal. They believe every person who is the victim of an act of violence in our society should be entitled to proper and appropriate compensation, and the Coalition is of the view that that sentiment is not being expressed in this bill. The quotation continues:
        We note that the recommendation of the Joint Select Committee on Victims Compensation was to specifically retain compensation for non-permanent psychological or psychiatric disorder in cases of sexual assault and domestic violence.
    The joint select committee, on which the Government had a majority, recommended that compensation be retained. The Government is ignoring its own committee report. The committee reported that compensation should continue to be given to category 1 psychiatric and psychological disorders in the case of victims of sexual assault and domestic violence. The Government has chosen to ignore the committee's report, which was tabled only a few months ago. The Combined Group of Community Legal Centres submission continues:
        While we welcome the fact that victims of armed robbery, abduction and kidnapping will still be eligible for this category of compensation, we refer to and reiterate the concerns that we raised in paragraph 2 of our submissions in relation to victims of 'hate crimes' such as racial, homophobic and transgender violence. It is essential that victims of hate-related violence remain eligible to claim compensation for psychological/psychiatric disorders. They will otherwise in many cases be ineligible for any compensation at all for what are serious and extremely traumatic assaults.
    I believe that this is a backward step for which the only justification is to contain costs. The Coalition parties do not agree with this move and we will not support it. The House and the Government should take note accordingly. The Combined Group of Community Legal Centres also states:
        We are extremely concerned at the retrospective nature of transitional provisions which provides that "amendment made by Schedule 1 [20], which restricts the availability of compensation for psychological or psychiatric disorder, will apply to applications for compensation that are, or were, duly lodged on or after the date of introduction into Parliament of the Bill for the proposed Act.
    This amendment will apply not from when the Act comes into force but from when the legislation was introduced. The legislation, although not passed or proclaimed, was introduced into Parliament on 31 May, so that will be the cut-off date. We clearly cannot support that retrospective provision. The Government is interested only in saving money by denying people not only their right to appropriate compensation but their right to procedural fairness. People will be caught by the legislation from the date of its introduction, not from the date of its passage by Parliament and its proclamation. Retrospective legislation is to be abhorred. Accordingly, that part of the bill is unacceptable and we will seek its deletion in another place.

    I will be interested to see how Government members respond to legislation that retrospectively denies people the rights that they had when the legislation was passing through the Parliament. It is fundamental to our society that people's rights are changed only when the law changes; the law should not change simply when the Minister makes a second reading speech in Parliament. This legislation is flawed. It has some good points—for which I gave the Government due credit earlier—but they are overshadowed by the legislation's bad points, particularly its denial of fundamental rights to victims of assault, serious assault, sexual assault, domestic violence and violence generally, excepting the three sub-categories of armed robbery, abduction and kidnapping. The legislation is also flawed in its retrospectivity to 31 May and not to its date of proclamation. Having given that warning and stated our concerns, I put the Government on notice that the Coalition will seek to make the appropriate amendments in another place, and will move those amendments with great vigour.

    Ms SALIBA (Illawarra) [9.45 p.m.]: I do not know why I should bother contributing to this debate as I am sure that the honourable member for Gosford would be able to write my speeches, hand them to Hansard and save me the bother. However, I am here for a reason: I believe in this legislation and I support it wholeheartedly. I was a member of the Joint Select Committee on Victims Compensation, which also comprised Opposition members, that considered several issues of concern, including compensation. The Victims Compensation Tribunal was established to assist people who are victims of crimes to if not recover from then at least learn to live with the violence that they have experienced. It is not about monetary compensation; it is about helping people to get on with their lives. Several issues were raised by the honourable member for Gosford—who does not even have the courtesy to stay in the Chamber and listen to my speech because he thinks he already knows what I will say. Shame on him.

    This legislation is about implementing the recommendations of the Joint Select Committee on Victims Compensation, some of which were about providing counselling services to victims of crime and their families. I note that increased counselling services will be provided and there will be an ongoing commitment to reviewing services and increasing them as necessary. The report also refers to the improved case management of claims by families of homicide victims. In December 1999, the joint select committee raised several issues relating to the processing of claims by families of homicide victims. Victims Services provided detailed submissions to the committee about the difficulties involved in processing these claims, and particularly the onus on Victims Services to identify all family members prior to the final determination of the total amount of $50,000. Since then, a new case management strategy has been implemented to reduce the pending homicide case load and improve existing methods of service delivery, particularly to homicide victims. This change was introduced by Victims Services in December 1999.

    The strategy includes the appointment of a dedicated homicide claims officer who is responsible for the management of all homicide claims in consultation with the registrar and director of Victims Services. Every homicide claim must be reviewed monthly with a progress report. There is early identification of potential problems in the management of specific homicide claims and regular case management meetings between the homicide officer, registrar and director of Victims Services to discuss particularly sensitive and difficult homicide claims, to identify factors that generally affect the efficient resolution of these homicide claims and to implement measures in response to these factors. Victims Services is now also looking at developing a closer and more efficient working relationship with external agencies, such as the police, courts, legal practitioners, the Registry of Births, Deaths and Marriages, and homicide victims support groups.

    There has been a review of the wording of standard letters and the drafting of information. It was asked in the joint select committee hearings whether victims of crime were fully aware of the services available to them, and we are now considering providing more information to victims of crime. The honourable member for Gosford did not stick around long enough to hear me say that victims of domestic violence and sexual assault will not be disadvantaged by the changes to the psychological or psychiatric injury provisions. Eligibility under those two categories depends on victims showing that the offence took place rather than having to list and prove each specific physical and psychological injury they have suffered. As a result, such victims will continue to claim compensation as set out in schedule 1 to the Act. The amount of compensation they can claim should not be affected by any changes. I hope the honourable member for Gosford hears that! It is of prime importance to this Government that the victims of domestic violence and sexual assault obtain all the support they need to recover from their traumatic experiences.

    The bill is aimed at helping people recover from the effects of the crime in which they been the victim, and to help their family members who have been victims of the crime. The bill is not about giving financial assistance; it is about finding ways to help people deal with the traumas they have experienced. By introducing this bill the Government is assisting people to find ways to deal with traumas and is addressing the issues. In certain cases there are people whom I consider serial claimers. Recently I spoke with a woman who has appeared before the Victims Compensation Tribunal three or four times. It is terribly tragic that someone should be a victim three or four times. However, rather than compensate people financially, we should look at ways to help them deal with the effects of the crime they have experienced and help them get on with their lives. This bill is not about gender; it is about victims, it is about assisting them and it is about a government being responsible for and responsive to the needs of the community. I have no hesitation in commending the bill.

    Mr GAUDRY (Newcastle—Parliamentary Secretary), on behalf of Mr Whelan [9.52 p.m.], in reply: I note the contribution of the honourable member for Gosford and I thank the honourable member for Illawarra for her clarification of the victims of crime, especially her reference to those suffering sexual assault. She said that under this bill they will not lose financial compensation, however the bill focuses on rehabilitation for those who have suffered not only physical but psychological injury from an horrendous attack. As the honourable member for Illawarra said, in all cases in which a person has been physically attacked or members of the family are suffering the results of an horrific crime, ongoing counselling and support services are the most important aspect of the compensation and rehabilitation program. That is emphasised in the bill.

    The main purpose of the bill is to implement certain recommendations suggested by the Joint Select Committee on Victims Compensation in its February 2000 report entitled "Ongoing Issues Concerning the New South Wales Victims Compensation Scheme". The bill aims to improve the victims compensation scheme in a number of ways and will, along with certain initial changes, ensure that New South Wales achieves the correct balance when protecting the needs of the victims of violent crime. One primary goal of the bill is to shift the focus of the scheme from compensation to rehabilitation. The joint committee stated that it was firmly of the view that rehabilitation is the best way forward for victims of crime and, to that end, it suggested that the name of the Act should reflect that focus.

    The bill changes the name of the Victims Compensation Act to the Victims Support and Rehabilitation Act. The bill also amends the objects of the Act to make it clear that support and rehabilitation for victims of crime is the Act's primary emphasis. A second area of change concerns entitlements to claim psychological injury. This change is in response to the committee's proposal that monetary compensation for general claims for non-permanent psychological injury be deleted from the schedule of compensable injuries. It is proposed that awards of monetary compensation for psychological injury will generally be restricted to applicants who can demonstrate a chronic psychological or psychiatric disorder that is severely disabling. However, it is also proposed that victims of the serious crimes of armed robbery, abduction and kidnapping remain eligible to receive a compensation award if they can demonstrate a chronic psychological or psychiatric disorder that is moderately disabling.

    While the victims of such serious crimes may not necessarily incur physical injuries, they often suffer significant and long-lasting psychological damage. It is the Government's view that such victims could not in any sense be considered to be rorting the scheme, therefore their blanket exclusion from eligibility to be considered for an award of monetary compensation is simply not justifiable. A third area of focus for the bill comprises a number of measures designed to improve the scheme in relation to family victims of people who have died through acts of violence. Family victims will now have improved access to counselling, thanks in part to changes provided by the bill. The joint committee raised concerns about the current requirements of family victims, as with all applicants, to be assessed for further counselling after only two hours of counselling. The bill proposes to change those requirements so that family members of homicide victims can now receive an initial period of up to 20 hours of approved counselling under the scheme.

    Many members of this House would have dealt with families in which there has been an horrific murder or a savage attack upon a person which has disabled the person permanently and created enormous stress within the family. The ongoing issues of dealing with grief often lead to long-term dysfunction and disruption within the family. Counselling is very important in dealing with the impact of the initial act as well as the ongoing dysfunction that it created within the family. The bill brings that out and emphasises the importance of ongoing counselling. The bill also proposes that compensation assessors have discretion to approve counselling for extended family members of homicide victims who are currently not eligible to receive monetary compensation. Family victims will also benefit from a streamlined compensation process. That is in line with a joint select committee report which noted concerns about the time it takes to determine compensation payments for family members of homicide victims. The committee was of the opinion that long delays can increase the suffering of victims who have suffered enough.

    The bill proposes to streamline the compensation process in order to better support family members of homicide victims. Under the new arrangements a determination will be made as soon as the assessor is satisfied that all family members who are likely to make a claim have come forward. An assessor will now be able to assume that no other family members are likely to come forward if three months have passed since the first application, and no other applications have been lodged, or if no other person has notified the director that he or she intend to lodge an application. A further benefit to family victims is available. The bill gives compensation assessors the ability to make more equitable awards in relation to funeral expenses.

    Currently the Victims Compensation Scheme allows only interim awards for compensation to be paid for funeral expenses when the expenses are borne by a family member entitled to receive an award of compensation. This raises difficulties when an ineligible person, such as a grandparent, applies for the payment of the funeral expenses. The bill overcomes this problem by allowing an assessor to exercise discretion to make payment for funeral expenses in such circumstances.

    Finally, family victims are assisted by some points of clarification contained in the bill. The bill amends the Act to make it clear that awards to family members are not to be reduced because of other moneys that they may be entitled to receive, such as workers compensation or insurance payments. The bill also simplifies and clarifies the definition of a "dependent family victim". Apart from the change of focus from compensation to rehabilitation, the changes to entitlements for psychological damage and the improvements for family victims, this bill also makes several procedural changes. These arise from operational experiences within the current system. The procedural changes introduced by this bill will serve to further improve efficiency in relation to the determination of claims.

    Under these changes compensation assessors will be empowered to reduce the standard amount of compensation where an applicant has failed to mitigate the injury—for example, by failing to seek medical attention. Assessors will also have the necessary power to undertake any investigations in relation to claims for compensation. Finally, the Compensation Funds Corporation will now be able to recover as a debt any amount awarded when the victim subsequently received some of the payment for the injuries relating to the same act of violence or where the award was obtained by fraud or collusion. While not specifically addressed in this bill, it should be noted that the joint select committee proposed that the minimum award threshold be increased from $2,400 to $7,500. The committee saw that this would have the benefit of prioritising the claims of those victims most affected by crime.

    In keeping with the move towards rehabilitation, victims who would no longer be eligible for compensation would still be eligible for counselling. The Government intends to implement this recommendation by proclamation, as provided by section 20.1 of the Victims Compensation Act 1996 once the legislative changes have been passed by Parliament. Likewise, the Government also proposes to increase the minimum amount payable for certain of the injuries found in the table in schedule 1 of the Act. The minimum amount payable in relation to domestic violence category 1 psychological or psychiatric disorder and category 1 sexual assault will be increased to $7,500. This will ensure that victims who were previously ineligible under these heads will not be disadvantaged in any way because of the proposed increase in the minimum award threshold. These changes, along with the changes contained within the bill itself, will enable the New South Wales Government to continue its commitment to assist the innocent victims of violent crimes, while ensuring that this assistance is at a reasonable and sustainable cost to the community. I commend the bill to the House.

    Motion agreed to.

    Bill read a second time and passed through remaining stages.