Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

The Greens support the principles of restorative justice that underpin the Crimes Amendment (Victim Impact Statements) Bill 2006. Restorative justice is about focusing on repairing the harm caused by criminal actions, and that relies on a cooperative process that includes all involved—the community, the offender and also, importantly, the victims. The Greens believe that the safety and the security of the community require an impartial justice system that takes into account the experiences of victims that have been harmed but also ensures that the rights of offenders are there for them to present mitigating factors. I will talk a little later about ways to achieve that.

This is a view that is reflected in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which says:

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

                 …         …           …

Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system ...

The experience in many state and territory jurisdictions has shown that victim impact statements, when properly included within the justice processes, have a role to play in ensuring that harm to individuals and the community is considered. In many cases, victim impact statements can be a way of ensuring some closure or healing for victims of crimes, but this is not always the case, and I will go on to talk about that later.

Victim impact statements can reduce the alienation that many victims have from the criminal justice process by providing them with a direct role in proceedings. They can increase the transparency of the justice system and ensure that it is more responsive to the needs of the community. They can also play an important role in rehabilitation, with offenders offered the opportunity to reflect on the harm that they have caused. Done properly, this process can also be an important antidote to the law and order politics that sometimes exploits victims by claiming that their needs have been ignored.

But there can also be problems with victim impact statements. As the Australian Law Reform Commission, in its review of part 1B of the Crimes Act that it completed this year which examined this issue and produced a discussion paper for the inquiry, said:

Problems with victim impact statements include that they can raise a victim’s expectations about sentence, which are not subsequently fulfilled; that they can expose offenders to unfounded allegations by victims; and that they can lead sentencers to give disproportionate weight to the impact of a crime on a victim, to the detriment of other relevant considerations; and they can skew an otherwise objective and dispassionate process by the introduction of emotional and possibly vengeful content.

They went on to say:

The Victorian Sentencing Committee noted that if victim impact statements were introduced and were not made compulsory, disparity could arise in the sentencing process: more severe sentences might be imposed in cases in which victim impact statements were available than in cases in which they were not, even if the culpability of the offender were the same. Victim impact statements may also result in inconsistent sentences where one victim asserts greater psychological harm than another more robust victim.

There are perils for the community and for victims in creating expectations that mere punishment of an offender will restore the harm caused. I will go on to talk about that issue later.

The prisoner advocacy group Justice Action, with whom I worked before entering into parliament, argues that ideally the acknowledgment of the harm caused to the victim and the process of sentencing should be separate. They are very supportive of the benefits that victim impact statements can bring to the criminal justice system, but it is about how they are incorporated in that process. They are supportive of separating those two issues of victim impact statements and sentencing, because putting them together can create a perception or a reality for all those involved in the process that it is in some way possible to equate one person’s pain with another person’s pain. We all know that that is not something that we can assess; we cannot assess whether one person’s pain equals another person’s pain. We all recognise that vengeance has no place in solving problems. If victim impact statements are incorporated, it needs to be clear that it is not for the purpose of vengeance. It needs to be very clearly articulated that that is not a part of the process.

The other issue, which is one I touched on earlier, is that victim impact statements can provide an opportunity for people to have real closure in dealing with an issue. That is not always the case. Indeed, there are a number of cases going on at the moment where relatives or victims are involved in the sentencing process, which means that every time parole or bail or other legal proceedings take place they are reminded of and have to relive the horrific experience that they had or that their family members experienced. Just this weekend in a newspaper, one woman in that circumstance talked about how it had damaged her life because she was continually reliving this horrific experience that she had had.

There can be a role for victim impact statements. Indeed, they are part of the concept of restorative justice that the Greens and I are very supportive of. But the way in which they are done becomes very important. Some people argue, and this is an argument that I would make, that victim impact statements are at one end of the restorative justice spectrum and that it is important that we do not just assume a one-dimensional relationship between punishment and victim satisfaction. Engaging the offender in restoring the harm that they have caused and seeking to help them to address the reasons why they caused that harm are really important parts of restorative justice. Victim impact statements have a very important role to play in restorative justice, and there are other components that are also important in the process of restorative justice. The needs of the victim should be central to a process of restorative justice, but they are not the only components of that.

The process for and the guidance about using victim impact statements are crucial in ensuring that victim impact statements have a proper role to play in the justice system. This bill adopts a formula that has been used in many states and territories throughout Australia. It ensures that the victim—or, if the victim is deceased or unable to appear because of age or impairment, a relative or a dependent of the victim—is able to file a statement to the court. This bill makes that link with sentencing so that it can be considered during the sentencing process. A victim is restricted to being a natural person and the harm is defined reasonably narrowly, relating to physical injury, psychological harm or economic loss. The particular experience and nature of the harm caused to the many victims of sex offences is acknowledged, which is an important and commendable feature of this bill. A victim is not required to make a statement, and the content of the statement must be made available to the offender. In this bill, the weight to give to the statement is left to the discretion of the court, which is of paramount importance. The court must be free to balance the various considerations that must be weighed in arriving at an appropriate sentence.

As people will know, the Greens have been very critical of a number of pieces of legislation which have come before this Senate that relate to areas of the criminal justice system. A number of pieces of legislation that we have dealt with, such as the antiterrorism legislation, have been a horrendous attack on human rights. The right to a fair trial in an open court, the right to remain silent, the right to a lawyer of your choice, and the freedom from detention without charge or trial have all been eroded as a result of legislation that has gone through this parliament with the support of both of the major parties.

There are many problems in our criminal justice system—for example, too many people in our prisons, particularly Aboriginal and Torres Strait Islanders. Unfortunately, we see the law and order drum being beaten at every election, particularly at a state level, by both of the major parties. It contributes to the problem when you have situations where parties are seeking to out compete each other with the penalties and the length of the prison sentences that they can impose. The Howard government has also taken away the right of prisoners to vote, which further alienates them from the community, rather than involving them in the process of restorative justice that I have been speaking about. How can one expect a prisoner to respect the laws of the country when they do not get any say in who the people are who make the laws?

We have opposed all of those measures, but we are always willing to support sober and sensible reform to the criminal justice system—reform that takes us in the direction of supporting restorative justice, which is so central to our focus on the justice system. So, whilst this bill is not ideal, we think that on balance it is worth supporting the bill, because it does take us down that direction of restorative justice. The particular experience of victims should be acknowledged in our justice system, and victim impact statements can be part of the strategy to address that.

I certainly hope this legislation is a sign of some more proposals around restorative justice coming from the Labor Party. That would be fantastic to see, particularly at a state government level, and it would be something that we would be very supportive of. So, in the sense that this bill contributes to the fundamentally important principle of restorative justice, it is a bill that we are able to support.