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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Victims of Crime (Victim Participation) Amendment Bill
2006
A BILL FOR
An Act to amend the Victims of Crime Act 2001.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Victims of Crime
Act 2001
4 Amendment of section
3—Objects
5 Amendment of section 4—Interpretation
6 Amendment
of section 5—Reasons for declaration and its effect
7 Amendment of
section 6—Fair and dignified treatment
8 Amendment of section
7—Right to have perceived need for protection taken into account in bail
proceedings
9 Amendment of section 8—Right to information about
criminal investigation and prosecution
10 Amendment of section 9—Victim
to be advised on role as witness
11 Amendment of section 11—Victim to
be informed about access to health and welfare services
12 Amendment of
section 12—Rights in relation to compensation and
restitution
13 Amendment of section 13—Return of
property
14 Amendment of section 14—Protection of
privacy
15 Insertion of Part 2A
Part 2A—Victims Advocate
Division
1—Preliminary
14A Interpretation
Division 2—Establishment of Victims
Advocate
14B Victims
Advocate
14C Staff and
resources
14D Delegation
14E Annual
report
Division 3—Inquiries by Victims Advocate
14F Power
to conduct inquiries
14G Special provisions as to
examinable decisions relating to offences of
violence
14H Report on
inquiry
14I Disclosure of
information
14J Immunity from
liability
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Victims of Crime (Victim Participation)
Amendment Act 2006.
This Act will come into operation 2 months after the date of
assent.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Victims of Crime
Act 2001
4—Amendment of
section 3—Objects
Section 3(b)—after "system" insert:
and to give victims rights within the criminal justice system
5—Amendment of
section 4—Interpretation
(1) Section 4—after the definition of dependants
insert:
evidentiary decision means a decision by the
prosecutor—
(a) to not submit evidence that would or might contradict evidence to be
submitted to the court by the defendant; or
(b) to agree with particular evidence to be submitted to the court by the
defendant;
examinable decision, in relation to a charge of an offence,
means an evidentiary decision, a penalty decision or a decision not to proceed
with the charge or to amend the charge;
(2) Section 4—after the definition of parent
insert:
penalty decision means a decision by the
prosecutor—
(a) to pursue a particular line in its submissions on penalty;
or
(b) to agree with a particular line taken by the defence in its
submissions on penalty;
6—Amendment of
section 5—Reasons for declaration and its effect
Section 5(4)—delete "practicable" and substitute:
possible
7—Amendment of
section 6—Fair and dignified treatment
Section 6—delete "should" and substitute:
must
8—Amendment of
section 7—Right to have perceived need for protection taken into account
in bail proceedings
Section 7—delete "should" and substitute:
must
9—Amendment of
section 8—Right to information about criminal investigation and
prosecution
(1) Section 8(1), (2) and (4)—delete "should" wherever occurring and
substitute in each case:
must
(2) Section 8(1)(e)—delete paragraph (e) and substitute:
(e) if the prosecutor proposes to make an examinable decision in relation
to the charge—details of the proposed examinable decision, its likely
effect and the reasons why the prosecutor considers it appropriate;
(3) Section 8(3)—delete subsection (3) and substitute:
(3) If—
(a) an offence causes the death of a victim or causes a victim to suffer
total incapacity; and
(b) the prosecutor is aware of the location of any surviving spouse, adult
child or parent of the victim,
that spouse, child or parent must be provided with information under this
section even if it has not been requested (but the information need not be
provided to a spouse, child or parent who has indicated that he or she does not
wish to receive the information).
(4) Section 8—after subsection (4) insert:
(5) Despite any other provision of this section, a person is not entitled
to information under this section that might jeopardise the investigation of an
offence.
(6) For the purposes of subsection (3), a victim will be taken to have
suffered total incapacity as a result of an offence if the offence
has caused the victim to be mentally or physically incapable of exercising
rights under this section.
10—Amendment of
section 9—Victim to be advised on role as witness
(1) Section 9(1)—delete "should" and substitute:
must
(2) Section 9(2)—delete "should be given (if practicable)" and
substitute:
must be given (if possible)
11—Amendment of
section 11—Victim to be informed about access to health and welfare
services
Section 11—delete "should" and substitute:
must
12—Amendment of
section 12—Rights in relation to compensation and
restitution
Section 12—delete "should" wherever occurring and substitute in each
case:
must
13—Amendment of
section 13—Return of property
Section 13—delete "should, if practicable" and substitute:
must, if possible
14—Amendment of
section 14—Protection of privacy
(1) Section 14(1), (2) and (3)—delete "should" wherever occurring
and substitute in each case:
must
(2) Section 14(4)—delete "should" and substitute:
may
After section 14 insert:
Part 2A—Victims Advocate
Division 1—Preliminary
14A—Interpretation
In this Part—
incapable person means a person who is mentally or physically
incapable of exercising rights under this Part;
offence of violence means—
(a) an offence involving the use of violence or a threat of violence
against a person; or
(b) an offence creating a reasonable apprehension of imminent harm to a
person; or
(c) a sexual offence; or
(d) an offence causing death or physical injury to a person;
principal officer, in relation to a relevant prosecution
authority, means—
(a) if the relevant prosecution authority is South Australia
Police—the Commissioner of Police; or
(b) if the relevant prosecution authority is the Director of Public
Prosecutions—the Director of Public Prosecutions;
relevant law enforcement authority, in relation to an
offence, means South Australia Police or any other authority that is responsible
for the investigation of the offence;
relevant prosecution authority, in relation to an offence,
means—
(a) if the prosecution authority responsible for prosecution of the
offence is South Australia Police—South Australia Police; or
(b) if the prosecution authority responsible for prosecution of the
offence is the Director of Public Prosecutions—the Director of Public
Prosecutions;
victim, in relation to an offence of violence,
means—
(a) an immediate victim of the offence; or
(b) if the offence was committed against an incapable person or against a
person who has, since the offence, become an incapable person—a member of
the immediate family of the person.
Division 2—Establishment of Victims
Advocate
14B—Victims Advocate
(1) There is to be a Victims Advocate.
(2) The Victims Advocate will be appointed by the Governor on terms and
conditions determined by the Governor.
(3) A person is not eligible for appointment as the Victims Advocate
unless he or she is a legal practitioner of at least 7 years standing.
(4) The Victims Advocate is not subject to Ministerial direction in the
exercise of powers and functions under this Part.
(5) If for any reason—
(a) the Victims Advocate is temporarily unable to perform official duties;
or
(b) the office of the Victims Advocate is temporarily vacant,
the Governor may, by notice published in the Gazette, appoint a person to
act in the office of the Victims Advocate (on terms and conditions determined by
the Governor) and a person so appointed has, while so acting, all the powers,
functions and duties of the Victims Advocate.
14C—Staff and resources
The Attorney-General must provide the Victims Advocate with the staff and
other resources that the Victims Advocate reasonably needs for carrying out his
or her functions.
14D—Delegation
(1) The Victims Advocate may, by instrument in writing, delegate a power
or function under this Act—
(a) to a particular person or body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A delegation under this section—
(a) may be unconditional or subject to conditions specified by the
delegator; and
(b) does not derogate from the power of the delegator to act personally in
any matter; and
(c) is revocable at will by the delegator.
14E—Annual report
(1) The Victims Advocate must, on or before 30 September in each year,
present a report to the Attorney-General on the operations of the Victims
Advocate during the previous financial year, including the number of inquiries
conducted by the Victims Advocate under Division 3.
(2) The Attorney-General must, within 12 sitting days after receipt of a
report under this section, cause copies of the report to be laid before each
House of Parliament.
Division 3—Inquiries by Victims
Advocate
14F—Power to conduct inquiries
(1) A victim of crime may request that the Victims Advocate inquire into
the conduct of the relevant criminal investigation or prosecution or any
particular aspect of the investigation or prosecution.
(2) The Victims Advocate may deal with a request in such manner as the
Victims Advocate thinks fit and may refuse to deal with a request if satisfied
that the request is frivolous or vexatious or not made in good faith.
(3) For the purposes of an inquiry under this Part, the Victims Advocate
has the powers of a commission as defined in the Royal Commissions
Act 1917 and that Act applies (subject to the provisions of this
Division) as if—
(a) the Victims Advocate were a commission as so defined; and
(b) the subject matter of the inquiry were set out in a commission of
inquiry issued by the Governor under that Act.
(4) No obligation to maintain secrecy or other restriction on the
disclosure of information obtained by or furnished to persons in the service of
a law enforcement or prosecution authority that is subject to an inquiry under
this Part, whether imposed by an enactment or by a rule of law, applies to the
disclosure of information for the purposes of an inquiry by the Victims Advocate
and, except as is provided in this Act, the Crown is not entitled, in relation
to any such inquiry, to privilege in respect of the production of documents or
the giving of evidence.
14G—Special provisions as to examinable decisions
relating to offences of violence
(1) If a victim of an offence of violence is entitled, under Part 2
Division 2, to information about a proposed examinable decision, the
relevant prosecution authority must not act on such a decision—
(a) until the victim indicates consent to the decision; or
(b) if the victim does not indicate consent to the decision—until
all rights under this Division for an inquiry into the decision have been
exhausted or have expired.
Note—
A victim is entitled, under Part 2 Division 2, to information
about a proposed examinable decision if the victim has requested the information
in accordance with section 8(1) or is entitled to the information in
accordance with section 8(3).
(2) A victim of an offence of violence may, within 7 days after receiving
information about a proposed examinable decision in accordance with Part 2
Division 2, apply to the Victims Advocate to conduct an inquiry into the
proposed examinable decision.
(3) The Victims Advocate may, if satisfied that it would be reasonable to
do so, apply to the court before which the alleged offender is to be tried for a
stay of the proceedings until his or her inquiry is completed and the court
must, on such application, order that the proceedings be so stayed.
(4) An inquiry under this section must be conducted as a matter of
urgency.
14H—Report on inquiry
(1) Having conducted an inquiry, the Victims Advocate must report on the
inquiry, and may make such recommendations as the Victims Advocate thinks fit,
to the relevant law enforcement or prosecution authority on the subject matter
of the application.
(2) The Victims Advocate must send a copy of the report and any
recommendations to—
(a) the victim; and
(b) the Attorney-General.
(3) The principal officer of the relevant law enforcement or prosecution
authority to which a recommendation is made must as soon as reasonably
practicable (and in any case within 7 days after receiving a copy of the
recommendations), report to the Victims Advocate on what steps have been, or are
to be, taken to give effect to the recommendation and, if no such steps have
been, or are to be, taken, the reason for the inaction.
(4) The principal officer of the relevant law enforcement or prosecution
authority must send a copy of the report under subsection (3)
to—
(a) the victim; and
(b) the Attorney-General.
(5) If it appears to the Victims Advocate that the relevant law
enforcement or prosecution authority has not taken, and does not propose to
take, appropriate steps to give effect to a recommendation made under this
section, the Victims Advocate may make a report on the matter (containing a copy
of the earlier report and the recommendation) to the Premier.
(6) Where the Victims Advocate reports to the Premier under
subsection (5), the Victims Advocate may forward copies of the report to
the Speaker of the House of Assembly and the President of the Legislative
Council with a request that they be laid before their respective
Houses.
(7) The Victims Advocate may delete information from copies of a report
forwarded under subsection (6) if satisfied that public disclosure of the
information—
(a) would be unlawful; or
(b) could reasonably be expected—
(i) to endanger the life or physical safety of any person; or
(ii) to prejudice the fair trial of any person or the impartial
adjudication of any case; or
(iii) to prejudice the investigation of any contravention or possible
contravention of the law whether generally or in a particular case; or
(iv) to enable the existence or identity of any confidential source of
information, in relation to the enforcement or administration of the law, to be
ascertained; or
(v) to prejudice the effectiveness of any lawful method or procedure for
preventing, detecting, investigating or dealing with any contravention or
possible contravention of the law; or
(vi) to prejudice the maintenance or enforcement of any lawful method or
procedure for protecting public safety; or
(c) would be an unjustifiable intrusion on the privacy of any person;
or
(d) would, on balance, be contrary to the public interest.
14I—Disclosure of information
(1) Information obtained by or on behalf of the Victims Advocate in the
course of, or for the purpose of, an inquiry under this Part must not be
disclosed except—
(a) for the purposes of the inquiry and of any report or recommendation to
be made under this Part; or
(b) for the purposes of any proceedings under the Royal Commissions
Act 1917 or under this Part.
(2) A person must not disclose information referred to in
subsection (1) contrary to the provisions of that subsection.
Maximum penalty: $2 000.
14J—Immunity from liability
(1) No liability attaches to the Victims Advocate or any staff of the
Victims Advocate for any act or omission in good faith in the exercise or
purported exercise of powers or functions under this Part.
(2) Except for the purposes of an application under section 14G(3),
neither the Victims Advocate nor any member of the staff of the Victims Advocate
can be called to give evidence before any court in any judicial proceedings, on
a matter coming to his or her notice in the course of exercising powers or
functions under this Part.
(3) In this section—
member of the staff of the Victims Advocate includes any
person to whom powers or functions have been delegated under this
Part.