Cory Bernardi (SA, Liberal Party) Share 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.