Victims and Other Legislation Amendment Bill 2018

Victims and Other Legislation Amendment Bill 2018

Second reading

07 August 2018

Debate resumed from 25 July; motion of Mr PAKULA (Attorney-General).

Mr PESUTTO (Hawthorn) (14:06:13) — I am pleased this afternoon to be able to rise and speak on the Victims and Other Legislation Amendment Bill 2018. It is a subject that is very dear to us on this side of the house, as it should be for everybody in fact. We have spent much of this term of the Parliament engaging with victims, victims’ advocates and community groups, talking to them about the justice system and listening to them — not only hearing stories about their anguish at the crimes that their loved ones have had to endure and in many cases have lost their lives to but also hearing their experiences about how our justice system leaves them marginalised, feeling isolated and alone.

Whilst I do not want to identify any of them by name — there is no shortage of them — they, almost to a person, relate stories about how during a trial process they are left to fend for themselves, often having to chase up information from prosecutors, investigators and also the courts, and how they feel like decisions are made completely in their absence and they have no ability to influence those decisions. I think it is fair to recognise that for victims. I do not think any of them are presuming that any relative of a victim or any victim should be possessed of a right to veto prosecutorial decisions or other investigatory decisions in the course of a prosecution. They do not imagine that that is an appropriate change in our justice system; they understand that our prosecutors must enjoy some independence. But their ability to influence decisions is very much in dispute, and it has been a matter which we on this side of the house have had some differences with the government, it must be said.

To be fair, I think we all want to support victims, but the question is: how far are we prepared to go? It is a fundamental question for us to wrestle with when we consider what kind of justice system we want to give the Victorian people. There are many Victorians who genuinely feel, and I am one, that our justice system obsesses to the point of ignoring victims over the welfare and interests of perpetrators, who are not to be ignored in our justice system — of course not. Our justice system is built on centuries-old principles, customs and traditions, which are there to safeguard all. But a lot of the coverage in recent years about the fate and actions of perpetrators really has dwelt upon how our system has been geared to their interests.

Victims are often seen as damaged or as people who of course would say the things they are going to say, and there but for the grace of God go the rest of us and we can hope we are never in their position. We do not elevate them to the role they deserve to occupy in that system. We have worked with some very brave advocates for victims: George Halvagis; Caterina Politi, who for all the wrong reasons has been in the media over the last 24 hours; the Cronin family; the Bertocci family; and other families who have lived through the searing experience of the gravest forms of crimes that have taken loved ones from them. For them to persist and pioneer for changes to our system in the way they have is something that is truly remarkable, and I want to pay tribute to them.

We recognised this problem even in the last Parliament, although I was not a member. In the last Parliament the then Attorney-General, the honourable member for Box Hill, referred to the Victorian Law Reform Commission (VLRC) a reference to look into the role of victims in the criminal trial process. The bill we are debating today is very much a product of the work of the VLRC, and I want to pay tribute to the VLRC for its work in this space. It will, if its recommendations are implemented as fully as possible, change our justice system in the right way, putting victims ahead of the perpetrators and helping to craft a criminal justice system that makes it clear to everybody, in particular those who have committed offences but also those who are at risk of committing offences, that this is what your criminal actions cause. There is no better way if we are to maximise the impact of general and specific deterrence and if we are to maximise the impact of denunciation as an objective of sentencing. Then the role of victims is paramount.

That is where, to be quite candid, we disagree with many on the left. There are many agencies and organisations that argue that our system is failing because we do not invest more than we already do in the rehabilitative and diversionary functions of our scheme. To be fair, those functions of our scheme are vital and need to be supported, but I think one of the reasons why we are seeing reoffending rates go up — and they have gone up considerably not only for custodial sentences but also for non-custodial outcomes in the last two to three years in particular — is because of the absence of focus on the effect of violent crime, in particular on victims, and perpetrators facing that head-on. Whilst many advocates campaign on the basis that the best way to achieve this is through restorative justice and while restorative justice can serve some purposes, at the serious end of offending it is a far more difficult position. If you are the relative of a loved one who has been brutally raped and murdered, restorative justice has its limitations — as well meaning as it is and as important as it can be for lower level offending.

For the more hardened type of offending we need a way through policy to achieve those objectives of deterrence and denunciation, in particular through the experience of victims and through elevating the role of victims — making their presence throughout the criminal trial process more conspicuous and more meaningful. Our view is that perpetrators who see that more keenly and feel it more keenly stand a better chance of changing their ways and coming out the other side of their sentence experience, whether it is a custodial or non-custodial sentence, with better hope of a more fulfilling pathway after that — but that is difficult. We know that nearly one in two inmates will come out and reoffend within two years, and that number has been going up steadily. We also know people on community correction orders are reoffending at a much higher rate, and the role of victims can very much change that.

We are not opposing this bill today. There are some things in this bill that we very strongly support, and I will come to those in a moment. We certainly do not oppose what the government is doing, and it is very much what we would do. In the victim space we had hoped the government might take this opportunity — one of the last opportunities the government will have before we move into caretaker mode — to introduce measures that would lend more substance to the
role of victims.

Certainly the bill does a few things to enhance the ability of victims to make complaints about the way a prosecution has been conducted, but it does not seem to go as far as we would go. When we announced in January of last year that we would adopt all but a few recommendations from the Victorian Law Reform Commission, with those that were not being supported to remain under active consideration we adopted the full range of recommendations, including recommendations such as enshrining in law the right to seek an internal review of decisions. This bill does, to be fair, extend to victims greater abilities to express grievances about the conduct of a prosecution, but once a response has come back that is basically it. It can go to the Victim of Crimes Commissioner and the Victim of Crimes Commissioner can pursue it as a systemic issue, but the ability of victims to have more influence is limited in that way. So we have certainly committed to go further in relation to that.

To the extent that the bill does improve the position of victims, we are supportive of that, and we hope that when this bill passes the other place and is assented to it can commence as soon as possible, because it cannot come soon enough. When we think about this report of the Victorian Law Reform Commission, it began its work in 2014 and it reported to the government two years ago, in August 2016. We have seen a couple of bills come forth from the government to implement some of the recommendations, which will go some way to improving the experience of victims in the trial process. This bill will go somewhat further but, again, will stop short of the full suite of measures that we would move to implement.

One other area that I had hoped the government might address in this bill is how we might improve the position of victims in relation to compensation. I say that acknowledging that no amount of money will ever restore the relatives of a lost victim, or a victim, to the position they enjoyed prior to a traumatic crime, but compensation is part of the process of at least easing the financial burden on victims and their families. It also complements what I was saying earlier about making sure that perpetrators feel the full force not only of the law but also of the effect of crime on fellow human beings. It may well be that perpetrators have never experienced that before.

I would like to see changes that would see perpetrators who face compensation claims actually have to sit through the process unless there are exceptional circumstances as to why they should not. They should be brought before these processes so they can hear directly from victims about the effects of crime on their lives. To some extent that is, to be fair to the government, addressed in this bill — in part because the government has moved to expand the opportunities around victim impact statements, and that is a welcome change. But there is more we can do and more we must do, in my view, to make sure that not only are victims having their place enhanced but perpetrators are being exposed to that.

The power of messages directly from victims — not only in the trial process through victim impact statements and the ability to influence prosecutorial and investigatory decisions, but also in the compensation side of things in proceedings before the Victims of Crime Assistance Tribunal — provides a really good opportunity. We need to start thinking this way, I think, if we want to try and look at the criminological factors which influence a perpetrator’s post-sentence experience. What is it that can alter their experience more than anything else?

We invest a lot, as we should as a community, in diversion, in rehabilitation, in training and in education. Victoria traditionally has performed rather well compared with other jurisdictions across Australia, but we have not done enough, as I said earlier, to expose perpetrators to the full impact upon victims. Our view and our thinking on that is that having a perpetrator — even hardened criminals who have performed atrocious acts — experience, firsthand, directly and maybe on a number of occasions, the full impact on victims is one of the best chances. It is not certain, but it is one of the best chances we have to influence thinking in the mind of a perpetrator who is serving time and, if not to change their behaviour significantly, to make some changes to their behaviour in the future.

That is not an easy ask in any case. Somebody who has lived a life of violent crime and is pathologised by our criminal justice system because they have been in and out of custodial facilities is not easily going to be reformed, if ever. The sad fact is with some offenders redemption is beyond our best endeavours. But our view, across the justice system, is that a lot can be done. That is why this work around victims does not just have immediate benefits. In our view it is actually crucial to changing trends in crime overall.

Some people want to forget about victims. I have seen some agencies, community organisations and advocacy groups never mention victims; it is all about the experience of the perpetrator, who as I said before, is not to be forgotten in the system either, but they want to obsess about the position of perpetrators. They misunderstand not only the responsibility we have to victims but that the opportunity to tap into their stories, their experience and, frankly, their anguish can allow us to change behaviour to the best extent possible, being realistic at all times about what is achievable and what is not.

The missed opportunity to do more on the compensation front is lamentable. This bill could have been an opportunity to do more around that. Victims’ access to compensation is for the most part in our hands, as a state. Where superannuation is concerned it obviously does involve intergovernmental relationships with the commonwealth, but I want to pay tribute to federal Minister Kelly O’Dwyer, who has been not only receptive to the idea of looking at how criminals can be made to account financially for the loss and injuries suffered by victims but has done something about it. She has looked actively into how we can allow victims and their relatives to tap into superannuation entitlements to make sure that they can be supported through the difficult road ahead for them. That is something that I think is lamentably missing in this bill.

I did want to talk about obviously the other half of the bill, which is of great significance and importance, dealing with the historical discrimination and, in some ways, oppressive nature of the way our system treated children in the welfare system. We accept that there was a disproportionate impact on young Indigenous Australians in that process. As we all know, for decades up until, if I am not mistaken, 1992, our child welfare system and the orders that were issued by courts in relation to children who were the subject of that system would carry a criminal connotation and be seen as, at least for administrative purposes, criminal matters, even though they had done nothing wrong — they were guilty of no crime. It is hard to imagine why our system operated thus for so long and indeed why it took so long for matters to be addressed and the situation to be redeemed as late as it was in 1992.

We support what the government is proposing here. It is fair and just that the historical wrong be recognised in this bill and that we recognise on behalf of previous governments and on behalf of the Victorian community the contrition that we ought to extend to those who were subjected to this treatment. We know, sadly, that it affected the life prospects of so many young kids as they matured into adulthood. Reference is made to Aboriginal elder, Mr Larry Walsh, known as Uncle Larry Walsh, who is fittingly recognised in the Attorney-General’s second-reading speech.

We support the government’s apology for these historical welfare recording practices. We only hope that the passage of this bill will assuage some of the deep anguish that those who suffered at the hands of this practice might have experienced and that they might see this as some small comfort for the deep feelings that they would no doubt harbour and continue to feel today. We cannot undo what has been done, but if this bill does as we all want it to do — redeems that wrong — then hopefully for those who suffered at the hands of this practice, their future might just be a little brighter.

About the Author