- Home
- Hansard & Papers
- Legislative Assembly
- 23 March 2005
Civil Liability Amendment (Offender Damages) Bill
Printing Tips |
Print selected text
| Full Day Hansard Transcript
« Prior Item |
Item 4 of 58
| Next Item »
Page: 14816
Second Reading
Debate resumed from 23 February 2005.
Mr ANDREW HUMPHERSON (Davidson) [10.10 a.m.]: Honourable members may experience a sense of deja vu because this debate is similar another debate a year ago. That is because the Government did not do its homework properly. The Minister for Justice had an opportunity to get it right when he announced on 15 January 2004 that he would introduce the legislation, but he failed to do so. When the legislation was debated some four months later in the Legislative Council the oversights were not rectified.
The Government has shown all the characteristics of being a tired old Government that has forgotten about details. Indeed, it appears to be more interested in spin and deception. On 15 January 2004 the Minister for Justice announced that no further compensation claims for major damages would be paid to offenders from within the correctional system. That was a fraud in a number of respects. The Minister said that the legislation would be effective from 15 January. Those offenders in the correctional system who were convicted as juveniles were still not covered. In March 2004 the Minister remedied that anomaly to make it apply to juveniles also.
However, the legislation was still not right. The bill was assented to in May, but was not proclaimed until six months later, on 19 November, by which time the Minister, and the Attorney General working in concert with him, acknowledged major deficiencies in the bill. He agreed that new legislation would be required to fix those oversights, which is the reason for this bill. The House would not be debating this bill if the Minister for Justice had done his homework. He is inexperienced and naïve. It is ironic that, as a lawyer, he has not properly undertaken his duties as a law-maker to get the legislation right. The Minister for Justice aspires to be Attorney General yet the Attorney General in the other place has had to clean up his mess.
The Minister for Justice, who is a member of the right wing, is like a new puppy that has not been house trained and the Attorney General, ironically a left winger, has had to run around with a legislative pooper-scooper to pick up after him. If the Attorney General had not slept in, he would be present in the Chamber and no doubt would be smiling at the irony of the Minister for Justice trying to appear hairy chested but still not getting the legislation right. A number of frauds have been perpetrated on the people of New South Wales. The media and the public have been misled. The legislation will not be correct until the bill is passed but, even then, it will not apply to offenders who made claims for compensation before 15 January 2004. An unknown number—potentially 100 or 200—of claims are in the legal system and offenders could seek damages in the order of $100,000, $200,000 or $300,000—similar to the claim made by Craig Ballard, who fell out of bed, sought compensation and received $100,000 in damages. However, the victims of his crime and others are not entitled to receive damages of that magnitude for criminal acts perpetrated upon them.
Why is it that criminals in New South Wales gaols are still able to make claims for compensation that exceed those to which victims are entitled? The answer is that the Labor Party in this State has far more sympathy for criminals than for law-abiding citizens. It gives priority to those who commit crimes. The Government has protected criminals by not making this legislation retrospective, yet it introduced vendor stamp duty legislation to retrospectively apply to mums and dads and average investors in this State, people who are struggling to do the right thing. Prisoners can still make claims and ultimately receive large compensation payouts that are paid for by the taxpayers.
The Government's priorities are totally warped. It is completely out of step with public expectations and the bill passed last year should have rectified that. At that time the Opposition moved amendments in Committee to ensure that any payouts to offenders were not out of step with public expectations. The Government did not support those amendments. Instead, it voted to protect criminals and to protect high compensation payments to those criminals, despite the fact that victims are not entitled to receive compensation of that magnitude.
A number of questions remain unanswered. The would-be Minister opposite, the honourable member for Campbelltown, probably has no idea what the legislation is about. He will probably read a prepared script because the Attorney General could not be bothered to be present in the Chamber. The unanswered questions are: How many claims in the system predate 15 January 2004? How many claims were settled between 15 January 2004 and the date of proclamation, 19 November 2004? Why was the proclamation date postponed from May until 19 November? Why does item [9] of schedule 1 state that the bill changes the original Act that was passed last year to make the bill effective from 19 November? The citizens of New South Wales need those questions answered so they can better understand the ultimate cost to be borne by them of compensation payments to offenders. The Opposition will not oppose the bill. It simply makes the clear point that the bill still does not achieve its aim. It is merely a tidying up exercise because the naive and novice Minister could not get the legislation right in the first place.
Mr ANTHONY ROBERTS (Lane Cove) [10.18 a.m.]: It is with great pleasure that I follow my learned colleague the honourable member for Davidson, who is leading the fight on behalf of the good people of New South Wales against a Government that seems to be more interested in protecting the rights of criminals—murderers and others—than protecting victims of crimes. The bill seeks to rectify the Civil Liability (Offender Damages) Act 2004, which was introduced last year to ensure that damages awarded to offenders in custody or while performing community service work are not greater than those available to workers suffering the same injury. The Opposition did not oppose the changes, but argued that in closing off excessive compensation payments to offenders the new law should apply to claims lodged prior to 15 January 2004 and not be prospective.
Item [1] of schedule 1 to the bill amends the definition of offender in custody or offender in section 26A (1) of the principal Act to make it clear that the definition includes persons who are attending a place in compliance with the requirements of a community service order, as well as persons while they are performing community service work. Items [2] to [4] of schedule 1 amend section 26D of the principal Act to make it clear that part 7 of chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 as applied by that section to the assessment of the degree of permanent impairment resulting from injuries to offenders applies with the additional modifications. It includes those relating to section 330 and the provisions of part 7 of chapter 7 of that Act, to be applied with such other modifications as may be prescribed by the regulations.
Item [5] of schedule 1 amends section 26I of the principal Act to make it clear that section 67 of the Workers Compensation Act 1987 in its application to determining an offender's entitlement to compensation is to be read as if the reference in that section of the Workers Compensation Commission were a reference to the court determining the amount of compensation. Item [8] of schedule 1 amends schedule 1 of the principal Act to enable the Governor to make regulations of a savings or transitional nature consequent upon the enactment of the proposed Act. Item [9] of schedule 1 also amends a transitional provision relating to part 2A of the principal Act. This amendment makes it clear that the new part does not affect any award of damages, settlement or consent order made before the commencement of the part on 19 November 2004. Item [10] amends schedule 1 the principal Act to by inserting a new part containing savings and transitional provisions consequent on enactment of the proposed Act.
I note with concern the history of the bill. I reinforce my colleague's statement that once again this is legislation on the run. The Government is bereft of ideas and vision. It is acting in a fog of confusion and panic as it tries to juggle scandals and failures without listening to the good counsel and guidance of the Opposition.
Mr Steven Pringle: Always playing catch-up.
Mr ANTHONY ROBERTS: Always playing catch-up, as the honourable member for Hawkesbury said. Unfortunately, it is quite often the Opposition or those in the other place who have to fix legislation that emanates from our colleagues on the other side. The bill contains minor mechanical changes. The honourable member for Davidson highlighted that the Minister was pursuing headlines rather than proper policy or legislation. I am sure that one of his media releases will interest those opposite. They fired the gun and the bullet has ricocheted all over the place. Unfortunately, it has landed in the lap of the right-wing member, the Attorney General, who has had to sort out this mess. It will be interesting to see for whom he votes in the next Premier leadership challenge.
On 15 January 2004 the Minister announced reforms for juveniles. On 18 March 2004 the legislation was introduced, effective from 15 January for adults and effective from 18 March for juveniles. On 13 May 2004 the bill was assented to. On 15 January 2004 the Minister issued a media release, guns blazing, in which he said, "The New South Wales Government today said that it would crack down on exorbitant compensation payouts to prisoners", which, in one recent case, topped $100,000. "The Justice Minister said that he would introduce legislation early this year to make it tougher for inmates to lodge claims against the New South Wales Department of Corrective Services." They are talking to talk, but they cannot walk the walk. It is all spin over substance. The Government is quite happy to get out and beat the drum, kick the can and issue press releases, but when it comes to doing something to assist the real victims—the taxpayers of New South Wales—it will not do anything. The legislation was introduced after a payout in 1999 of $100,000 to Craig Ballard after he fell out of bed.
I would be surprised if the Government had any inkling whatsoever how many compensation claims were made prior to this date. What is the potential amount of damages that the New South Wales taxpayers will incur in the next 10 years? Are we looking at $10 million or $100 million? We must be informed. Although the Government is happy, as the honourable member for Davidson stated, to tax retrospectively family investors through the vendor stamp duty and punish the mum and dad investors, those who have worked hard, it does not seem keen to respectively stop criminals from receiving large payouts for what are quite often minor injuries when the victims of their crimes are not afforded that same level of coverage. We must clamp down on these prisoners' claims.
Although we do not oppose the bill it is an absolute disgrace that it has taken so long to come back to this House. I ask those on the other side to pay a little bit more attention when putting legislation together and to consider retrospectively closing off the ability for criminals to receive excessive payouts for minor injuries. It is an absolute disgrace that perpetrators of crime in New South Wales have more rights retrospectively than their victims. I seriously question whether the Government has any concept of the extent of any liability that the people of New South Wales may face in the future. The Government's incompetence is highlighted by the fact that it has taken so long to bring this bill before the House when more than one year ago it announced that retrospective claims would cease.
Mr GRAHAM WEST (Campbelltown—Parliamentary Secretary) [10.28 a.m.], in reply: As the Minister said, the bill makes minor amendments, mainly of a procedural nature, to clarify the operation of part 2A of the Civil Liability Act 2002. Part 2A, special provisions for offenders in custody, was inserted into the Act by the Civil Liability Amendment (Offender Damages) Act 2004, which has commenced, and the bill will not affect the operation of the principal functions of the scheme. It will simply make minor consequential amendments to part 2A to clarify its operation and simplify certain processes. The legislation already provides that victims compensation restitution will be withheld from any damages award prior to payment being made to an offender. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
Last modified 05/12/2007 16:31:14 : Update this page