Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010

Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 23/3/2010

INTRODUCTION

The Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010 (the Bill) amends—

the Sentencing Act 1991and the Children, Youth and Families Act 2005 in relation to victim impact statements. Theamendments provide that victims or their representatives may read aloud the victim impact statement in court, and clarify that a victim impact statement may include non-written and other material. The amendments include provision for alternative arrangements for reading aloud a statement or the giving of evidence in relation to statements;

the Victims of Crime Assistance Act 1996 toenable the Chief Magistrate to delegate powers of the Victims of Crime Assistance Tribunal to judicial registrars, and provide for a category of reasonable safety-related expenses;

the Family Violence Protection Act 2008,with consequential amendments to the Stalking Intervention Orders Act 2008,to address operational issues and ensure the two schemes are procedurally aligned;

the Children, Youth and Families Act 2005 with respect to the Children and Young Persons Infringement Notice System and makes similar amendments to the Infringements Act 2006with respect to the commencement of proceedings in the Children's Court;

the Liquor Control Reform Act 1998 to increase the infringement penalty amount for the offence of a person who is drunk, violent or quarrelsome refusing or failing to leave licensed premises if requested to do so by a licensee, a permittee or a member of the police force;
the Summary Offences Act 1966 to increase the maximum penalties for the offences of drunk in a public place, drunk and disorderly in a public place and behaving in a disorderly manner. The Bill also amends the Act to increase the infringement penalty amounts for those three offences along with the offence of behaving in a riotous, indecent, offensive or insulting manner.

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purpose of the Bill.

Clause 2provides for the commencement of the Bill. Part 1 and Part 4 of the Bill come into operation on the day after the day of Royal Assent. The remaining provisions will come into operation on a day or days to be proclaimed. If any of the remaining provisions do not come into operation before 1 January 2011, they will come into operation on that day.

PART 2—VICTIMS OF CRIME

Division 1

Division 1 of Part 2 of the Bill makes amendments to Division 5 of Part 5.2 of the Children, Youth and Families Act 2005 in relation to that Act's victim impact statement provisions. Those provisions provide that if the Court finds a child guilty of an offence, a victim of the offence may make a victim impact statement to the Court for the purpose of assisting the Court in determining sentence. The broad definition of victim in the Act means that victims may include boththe person against whom the crime was committed, and family members and other persons who have suffered injury as a direct result of the offence.

The Bill's amendments arise from consideration of the recommendations in the evaluation report titled "A Victim's Voice: Victim Impact Statements in Victoria", published by the Victims Support Agency of the Department of Justice, Victoria.

Clause 3amends the definition of victim in section 3(1) of the Children Youth and Families Act 2005. The amended definition is—

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the child found guilty of the offence;

The amended definition of victim is the same as the definition in the Sentencing Act 1996.

Clause 4Subclause (1) inserts new section 359(4A) after section 359(4) of the Children Youth and Families Act 2005, providing that a victim impact statement may include photographs, drawings, poems and other material that relates to the impact of the offence on the victim or to any injury, loss or damage suffered by the victim as a result of the offence. The materials are not limited to materials produced by the victims themselves, and promote flexibility for victims in expressing the impact of the offence. For example, a photograph or recording of a deceased person may be included in a victim impact statement to demonstrate the loss experienced to the family member.

Subclause (2) substitutes section 359(12) of the Children, Youth and Families Act 2005 with new subsections (12), (12A) and (12B) to expand the current provisions in relation to the reading aloud of victim impact statements.

New subsection (12) provides that a person who has made a victim impact statement may request that any part of the statement is read aloud or displayed by that person, or a person chosen by them who is approved by the Court. The person may also request that any other part of that statement be read aloud by the prosecutor during the sentencing hearing. This recognises the importance of victims, including family members and others who suffered as a direct result of the offence, having a voice to express the impact of the offence to the court if they so wish.

New subsection (12A) provides that if the person specified in the request is available to do so during the sentencing hearing, the Court must ensure that any admissible parts of the victim impact statement that are requested, and which are appropriate and relevant to sentencing, are read aloud or displayed by the person or persons specified in the request in open court in the course of the sentencing hearing. For example, a victim may request to read one part of the statement themselves, and request that the prosecutor read out the remaining parts. In that case, the victim would need to be available during the sentencing hearing to ensure the request could be exercised, as otherwise the Court's general discretion on adjournments will apply.

New subsection (12B) provides that the Court may direct the person or the person who he or she has chosen as to which admissible parts of the victim impact statement are appropriate and relevant to sentencing. This is in addition to the Court's existing power under section 359(5) of the Act to rule as inadmissible the whole or any part of a victim impact statement.

Clause 5inserts new sections 359A and 359B after section 359 of the Children, Youth and Families Act 2005 to provide that the Court may direct that alternative arrangements be made for the reading aloud of a victim impact statement under section 359, orthe giving of evidence under section 359(7) or 359(9). Thesearrangements are similar to the arrangements for vulnerable witnesses in section 360 of the Criminal Procedure Act 2009. An application to make, vary or revoke a direction can be made by the person who is to read aloud the statement or give evidence, by the prosecutor, or by the court on its own motion.

These amendments recognise the potential vulnerability of victims and witnesses in relation to victim impact statements.

Clause 6amends section 617 of the Children, Youth and Families Act 2005 (section 617 is inserted by clause 46 of the Bill)to provide a transitional provision. The transitional provision provides that clauses 3, 4 and 5 of the Bill will apply to a sentencing hearing of a child for an offence irrespective of when the offence was committed, provided that the sentencing hearing commences after those clauses come into operation.

Division 2

Division 2 of Part 2 of the Bill makes amendments to Division 1A of Part 6 of the Sentencing Act 1991 in relation to that Act's victim impact statement provisions. Those provisions provide that if the Court finds a person guilty of an offence, a victim of the offence may make a victim impact statement tothe Court for the purpose of assisting the Court in determining sentence. The broad definition of victim in the Act means that victims may include boththe person against whom the crime was committed, and family members and other persons who have suffered injury as a direct result of the offence.

Clause 7inserts new section 95B(1A) after section 95B(1) of the Sentencing Act 1991, providing that a victim impact statement may include photographs, drawings, poems and other materials that relates to the impact of the offence on the victim or to any injury, loss or damage suffered by the victim as a result of the offence. The materials are not limited to materials produced by the victims themselves. For example, a photograph or recording of a deceased person may be included in a victim impact statement to demonstrate the loss experienced to the family member.

Clause 8substitutes section 95F(1) of the Sentencing Act 1991 with new subsections (1), (1A) and (1B) to expand the current provisions in relation to reading aloud of victim impact statements.

New subsection (1) provides for a person who has made a victim impact statement to request that any part of the statement is read aloud or displayed by that person, or a person chosen by them who is approved by the Court. The person may also request that any other part of that statement be read aloud by the prosecutor during the sentencing hearing. This recognises the importance of victims, including family members and others who suffered as a direct result of the offence, having a voice to express the impact of the offence to the court if they so wish.

New subsection (1A) provides that if the person specified in the request is available to do so during the sentencing hearing, the Court must ensure that any admissible parts of the victim impact statement that are requested, and which are appropriate and relevant to sentencing, are read aloud or displayed by the person or persons specified in the request in open court in the course of the sentencing hearing. For example, a victim may request to read one part of the statement themselves, and request that the prosecutor read out the remaining parts. In that case, the victim would need to be available during the sentencing hearing to ensure the request could be exercised, as otherwise the Court's general discretion on adjournments will apply.

New subsection (1B) provides that the Court may direct the person or the person who he or she has chosen as to which admissible parts of the victim impact statement are appropriate and relevant to sentencing. This is in addition to the Court's existing power under section 95B of the Act to rule as inadmissible the whole or any part of a victim impact statement.

Clause 9inserts new sections 95G and 95H after section 95F of the Sentencing Act 1991 to provide that the Court may direct that alternative arrangements be made for the reading aloud of a victim impact statement under section 95F or the giving of evidence under section 95D or 95E. These arrangements are similar to the arrangements for vulnerable witnesses in section360 of the Criminal Procedure Act 2009. Anapplication to make, vary or revoke a direction can be made by the person who is to read aloud the statement or give evidence, by the prosecutor, or by the court on its own motion.

These amendments recognise the potential vulnerability of victims and witnesses in relation to victim impact statements.

Clause 10inserts new section 142 in the Sentencing Act 1991 to provide a transitional provision. The transitional provision provides that clauses 7, 8 and 9 of the Bill will apply to a sentencing hearing of a person for an offence irrespective of when the offence was committed, provided that the sentencing hearing commences after those clauses come into operation.

Division 3

Division 3 of Part 1 of the Bill amends the Victims of Crime Assistance Act 1996 toenable the Chief Magistrate to delegate powers of the Victims of Crime Assistance Tribunal to judicial registrars, and provide for a category of reasonable safety-related expenses.

Clause 11inserts a new definition of judicial registrar in section 3(1) of the Victims of Crime Assistance Act 1996. The definition provides that a judicial registrar has the same meaning asin the Magistrates' Court Act 1989. That is, judicial registrar means a judicial registrar of the court appointed under section 16C of the Magistrates' Court Act 1989.

Clause 12inserts a new section 8(2)(e) after section 8(2)(d) of the Victims of Crime Assistance Act 1996, with consequential amendments to section 8(2)(d) and section 8(4).

The new section 8(2)(e) provides for a specific type of assistance amount, being safety-related expenses that are actually and reasonably incurred, or reasonably likely to be incurred by the primary victim as a direct result of an act of violence.

The Victims of Crime Assistance Tribunal currently makes awards to primary victims for safety-related expenses under section 8(3) which provides for certain "other expenses". Inorder for an award to be made under section 8(3), "exceptional circumstances" must be proven. The amendment provides for awards of reasonable safety-related expenses without requiring exceptional circumstances to be established, and facilitates the Tribunal's existing discretion to make interim awards of this nature where appropriate. The amendment ensures that more timely assistance can be provided to the victim for expenses such as relocation costs, security expenses, window and lock repairs, and so on.

Clause 13inserts a new section 24(3) in the Victims of Crime Assistance Act 1996. New section 24(3) provides that the Chief Magistrate can delegate to a judicial registrar any power conferred on the Tribunal other than the power to review a final decision of the Victims of Crime Assistance Tribunal or the delegation of power to judicial registrars.

The purpose of the new section is to extend the model for judicial registrars from the Magistrates' Court to the Victims of Crime Assistance Tribunal, so that judicial registrars may be delegated Tribunal powers as appropriate. This will enhance the Tribunal's role as an accessible forum for victims, particularly where less complex matters can be dealt with in a cost effective and efficient manner without compromising the quality of the decision-making process.

Clause 14inserts a new section 59(1A) after section 59(1) of the Victims of Crime Assistance Act 1996. The new section 59(1A) provides that a person may not apply to the Victorian Civil and Administrative Tribunal under section 59(1) for review of a final decision if the final decision was made by a judicial registrar as a delegate of the Victims of Crime Assistance Tribunal.

The purpose of the new subsection is to ensure that a person first exercises their review rights under the new section 59A, inserted by clause 15 of the Bill.

Clause 15inserts a new section 59A after section 59 of the Victims of Crime Assistance Act 1996. The new section 59A provides that a person affected by a relevant decision can apply to the Victims of Crime Assistance Tribunal for a review of a final decision of the Tribunal made by a judicial registrar as a delegate of the Tribunal. The relevant decisions listed in section 59A are the same as those decisions for which a person can seek review to the Victorian Civil and Administrative Tribunal under section 59. They include refusing to make an award of assistance, the determination of an amount of assistance, refusing to vary an award, determining the amount of assistance on an application for variation and a determination that a person is required to make a refund and the amount of that refund.

New section 59A provides that a review under this section is to be conducted as a hearing de novo. A hearing de novo is a fresh consideration of the application for assistance. For clarity, a legislative note refers to section 33 as containing the circumstances in which the Victims of Crime Assistance Tribunal may determine whether to conduct the review without a hearing.

The Chief Magistrate may make practice directions and rules inrelation to applications, practice and procedure under section59A, pursuant to the existing general power in section 57 and section 58 of the Victims of Crime Assistance Act 1996.

The purpose of the new section 59A is to provide a person who has had their interests affected by the judicial registrar's decision with the right to have the decision reviewed in the first instance by the Victims of Crime Assistance Tribunal. This is similar to the model for review of a judicial registrar's decision in the Magistrates' Court.

Following a review under section 59A, the person retains the right under section 59 of the Victims of Crime Assistance Act 1996 to apply to the Victorian Civil and Administrative Tribunal to seek review of the final decision of the Tribunal made at the review.

Clause 16inserts new section 81in the Victims of Crime Assistance Act 1996to provide a transitional provision. The transitional provision provides that the amendment in clause 12 will apply toproceedings in the Tribunal occurring on or after the commencement of that clause, irrespective of whether the application was made to the Tribunal before or after that commencement.

The purpose of this amendment is to ensure that the Tribunal has power to consider an assistance award for reasonable safety expenses pursuant to the amendments in clause 12, even if the application was lodged before the commencement of clause 12 and has yet to be determined.

This is consistent with the general power of the Tribunal under section 50(1)(c) of the Victims of Crime Assistance Act 1996 to award assistance to an applicant if satisfied that the applicant is eligible to receive the assistance.

PART 3—AMENDMENTS TO THE FAMILY VIOLENCE PROTECTION ACT 2008 AND STALKING INTERVENTION ORDERS ACT 2008

Division 1

Division 1 of Part 3 of the Bill makes technical and procedural amendments to the Family Violence Protection Act 2008 to improve the family violence protection system.

Clause 17amends section 16 of the Family Violence Protection Act 2008 in relation to the search and seizure of objects.

Subclause (1) amends the heading in section 16 of the Family Violence Protection Act 2008 to add a reference to the seizure of objects.

Subclause (2) inserts new subsections (2A) and (2B) after section16(2) of the Family Violence Protection Act 2008. Section 16 provides for the search of a person in certain circumstances if a police officer has given the person a direction, or apprehended and detained the person, under Division 1 of the Family Violence Protection Act 2008.