Commissioner for Victims’ Rights Victims’ Rights – Why is a Victims’ Rights Commissioner / an Ombudsman necessary? Michael O’Connell Commissioner for Victims’ Rights TOT – LPSK Maret 2013

Literature Review Problem Identification / Definition

State-centred Criminal Justice System Victims became “saddled with enforcement and prosecutorial responsibilities for a process that did not address their needs or their losses” (Young 2001, p6). As criminal justice systems became bureaucratised and public officials professionalised, a greater “distance [grew] between the victim, the offender and the criminal process” (Sanders 1999, p1) The absence of a precise role for the victim, other than as a prosecution witness, is inconsistent with the victim’s actual importance to the criminal justice system. Elevating victims’ rights is seen as an appropriate way to ensure victims are given their proper status in the criminal justice system.

Victims’ Rights Instruments United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985): Guide-book on victim assistance; Guide-book for policy-makers. Commonwealth Statement of Basic Principles of Justice for Victims of Crime (endorsed by Senior Law Officers for the Commonwealth 2005). National Charter on Victims’ Rights (endorsed by the Standing Committee of Attorneys-General, Australia 1993): SCAG Secretariat

Australia’s Declarations / Charters Victims of Crime Act 1994 (ACT); Victims Rights Act 1996 (NSW); Victims of Crime Rights & Services Act 2006 (NT) – administrative statement; Victims of Crime Act 2008 (QLD); Victims of Crime Act 2001 (SA); Victims Charter Act 2006 (VIC); Victims of Crime Act 1994 (WA); and, Declaration on Victims’ Rights (TAS) – administrative statement. No federal declaration / charter National Charter on Victims’ Rights – agreed by all jurisdictions in 1993

Common features of declarations / charters Passive Services Information Procedural Consultation Participation

Victims and their rights There is no statutory obligation on public officials to require or compel them to advise victims of their rights and ensure victims understand their rights. This presumes victims are conversant with their rights and are aware that they must take some action such as requesting information.

Australian studies on the effectiveness of victims’ rights charters / declarations Research in South Australia (Gardner 1990; Erez et al 1994) shows that despite the declaration on victims’ rights many victims felt they did not get the information they needed and too many public officials treated them ambivalently. A review on victims of crime (JSU 1999, 2000) revealed positive outcomes attributable to the declaration and steps taken to implement it. Western Australia reviews done in the same era produced both positive and negative findings, but also raised questions about implementation and compliance.

Australian studies on the effectiveness of victims’ rights charters / declarations The 2004 New South Wales statutory review of its victims’ legislation noted that: “Many victims, friends and families of victims, and victim support groups observed that the terms of the Charter are simply not being followed by government departments and agencies in their dealings with victims.”

Australian studies on the effectiveness of victims’ rights charters / declarations In its 2005 community consultation paper on a Victims’ Charter, the Victoria Department of Justice concluded: “…there is a need for the provisions of [a Victims’ Charter] to be clearly articulated and for well co‑coordinated implementation process and compliance mechanisms to be established.”

Australian studies on the effectiveness of victims’ rights charters / declarations Victims of Crime Support Program Annual Report 2006-07, the Australian Capital Territory’s Victims of Crime Co-ordinator highlighted: “…individual cases of agencies failing to adhere to governing principles contained in the Act, inconsistencies between agencies in their application or implementation of the governing principles, and problems in addressing the failures of these bodies to implement the Act’s requirements.”

Australia Enforcement Measures

Victims’ Rights – USA, UK & Canada Are the Australian experiences unique?

USA studies on the effectiveness of victims’ rights charters / declarations Victim-advocacy has led every state to adopt constitutional and/or statutory victims’ rights. Victims’ rights are largely pious platitudes unless they are accepted as mandatory practices. Beloof (2005) identify 3 obstacles to mandatory rights: Government discretion to deny rights. Lack of a meaningful remedy to enforce rights. Appellate court discretion to deny review. Having an agency designed to enforce victims’ rights is an important way to improve service for crime crimes and to enhance the attainment of victims’ rights (Kercher & Johnson 2005)

USA Enforcement Measures

UK studies on the effectiveness of victims’ rights charters / declarations Considered a Victim Ombudsman as an alternative to the existing agency-based complaints procedures or as an additional arbiter. As arbiter of last resort, ombudsman could deal with victim-complainants who remain unhappy with an agency’s response. Could not comment in legal decisions but could investigate and comment on the way a victim was treated or a case was handled. Could also be a “champion” of victims’ interests. Ombudsman could supplement an existing rights-based approach or replace such. Victim Support Scotland recommended that the Scottish Executive appoint a Commissioner for Victims of Crime. A Commissioner would give advice and other help to victims, witnesses and their families, as well as be a champion for victims’ rights.

UK Enforcement Measures

Parliamentary Ombudsman, Britain Provides a complaint handling service for victims of crime who have a complaint about the way in which any of the criminal justice agencies has carried out its obligations under the Victims’ Code and who have been unable to get their complaint satisfactorily dealt with by the agency concerned. If ombudsman finds something has gone wrong he or she will ask the organisation to: Provide an explanation and acknowledgement of what went wrong Take action to put the matter right, including giving you an apology Where ombudsman finds serious faults he or she can also recommend that: Changes be made in the way the organisation works so that similar things do not happen again Highlight lessons that should be learnt Payment should be made for a financial loss or for the inconvenience or worry caused. The ombudsman, however, has no formal power to enforce his or her recommendations.

Canada studies on the effectiveness of victims’ rights charters / declarations Victim study – Quebec (Wemmers & Cyr 2007) Crime victims are not systematically told about services to help them; Almost half of victims of violent crime did not receive information about victim-compensation; The majority of victims were not informed about the progress of their cases – almost all victims would have liked to have been informed; Over two-thirds were dissatisfied with the information received Victims who felt they were not treated fairly by authorities are more likely to suffer psychological harm, such as PTSD & low self-esteem.

Canada studies on the effectiveness of victims’ rights charters / declarations The need for a Federal Ombudsman for victims of crime has evolved since the 1990s; The creation of the Office was recommended by victims' advocates and parliamentarians to ensure that the needs of victims are properly addressed.

Canada Enforcement Measures

The ‘words’ of declarations on victims’ rights do not always mirror (match) the acts of those tasked with helping victims.

Commissioner for Victims’ Rights Strengthening Victims’ Rights – South Australia

Victims of Crime Co-ordinator The functions of the Victims of Crime Co-ordinator were: Advise the Attorney-General on how best to use government resources to help victims of crime Carry-out functions assigned by the Attorney-General Monitor & report on compliance with the declaration To be an ex officio member of the Victims of Crime Ministerial Advisory Committee.

Commissioner for Victims’ Rights - Functions Commissioner for Victims’ Rights assumed these functions but was also tasked with more functions, so his / her role is likened to a Crime Victim Ombudsman. To assist victims in their dealings with prosecution authorities and other government agencies. To monitor and review the effect of the law and of court practices and procedures on victims.

Commissioner for Victims’ Rights - Functions If another Act authorises or requires the Commissioner to make submissions in any proceedings – to make such submissions (either personally or through counsel). To personally, or through counsel, make submissions at the sentencing stage on the impact of the crime on victims and victims’ families in cases resulting in the death or permanent total incapacity of the victim. To make submissions to the Court of Criminal Appeal on guideline sentences. To consult the Director of Public Prosecutions in the interests of the victims in general and in particular cases about matters including victim impact statements and charge bargains. To consult with the judiciary about court practices and procedures, and their effect on victims.

Commissioner for Victims’ Rights - Monitoring Total Victims Books Distributed % Victims Referred to Agency % Victims Referred to VCO % Elizabeth 3904 74.95% 1.13% 3.25% Holden Hill 3193 68.31% 3.29% Western Suburbs 2914 76.56% 1.48% 6.01% Barossa - Yorke 798 68.92% 1.38% Far North 1048 40.55% 2.67% 1.91% Mid West 484 36.36% 3.31% 4.13% North East 496 63.51% 1.61% 3.23% West Coast 682 66.42% 2.93% 2.79% Eastern Suburbs 3190 75.74% 2.88% 8.62% South Coast 2380 65.71% 1.97% 3.82% Sturt 3875 57.88% 0.72% 3.64% Hills - Murray 1097 65.91% 3.28% Riverland 704 73.01% 1.99% 2.70% South East 994 77.46% 1.31%

Commissioner for Victims’ Rights - Enhancing Victim-letter notification: Name of accused First court date & court particulars Reminder of right to make a VIS

Commissioner for Victims’ Rights - Reviewing State-funded victim compensation – validation of victims’ statements etc Police information for victims’ compensation claims: Designated process with accountability chain

Commissioner for Victims’ Rights – Inquiring / Consulting Able to require a public agency or official to consult with him/her regarding steps that may be taken by the agency/official to further the interests of victims; and After such consultation, may, where he/she believes that the agency or official has failed to comply with the declaration of principles, recommend that the agency or official issue a written apology to the relevant victim. The Commissioner is required to have regard for the wishes of the person (victim)

Victims’ Rights – A compellable right Under the Criminal Law (Forensic Procedures) Act, 2007 victims have a right to request the destruction of a forensic sample or material (see section 39) That Act compels the Police to provide a victim (relevant person) with information pertaining to above (see section 12)

Victims’ Right – An enforceable penalty Under the Correctional Services Act, 1988 (SA) a public official who misuses confidential information from the Victims Register is liable for a penalty of up to $10,000 (Aust). Victims Register comprises information on victims who want to be kept informed about prisoners pending release, among other things, and is maintained by Correctional Staff in a Victim Services Unit

Commissioner for Victims’ Rights - Budget Staffing Commissioner + Programme & Policy Officer + Project Support Officer ($300,000, including on-costs) Goods & services ($60,000, including rent & computer charge-back) Project funding Letter-notification ($35,000) Child-Witness Assistance Officers ($310,000) Victim assistance ($50,000) Legal funding ($250,000)

Case Examples – Victim participation

Victim participation – charge bargaining / charge withdrawal Anti-violence order – negotiation of variation of a condition without consulting the victim A child’s plea – demand for a prosecution to happen contrary to the victim’s view

Victim participation – in criminal proceedings Pre-court preparation – legal orientation rather than physical orientation Disclosure – intrusion into victim’s (and others’) privacy Cross examination – access to statement made to a Royal Commission

Victim participation – in sentencing Victim impact statement – judge’s questions on victim-offender reconciliation Circle sentencing – giving the victim voice Mental impairment – licence variations

Victim participation – in post-court Parole – review of all applications by murderers for release on parole Sentence reduction – giving the victim voice

Victim participation – civil proceedings Victim sued: For libel based on submission made to parole board As a third party to an alleged ‘unlawful detention / arrest’ by police Freezing order – protecting assets of murder victim (domestic violence)

Victim participation – Coroner’s Court Allegations of incomplete / inept preliminary investigation by the police Appropriateness of ‘mental health’ decision to release a person detained under mental health law Challenge adequacy of criteria used to assess applicants with ‘vision impairment’ and other health issues for driver’s licence.

Victim & Witness Protection Household and workplace security Assistance moving house Assistance applying for state-funded victim compensation Assistance paying for treatment

Lessons Learnt - Conclusions

Commissioner For Victims’ Rights – Lessons Learnt Although declarations / charters ‘proclaim’ victims’ rights (or at least principles), they do not (in general) mandate procedures by which to enforce them. One of the greatest challenges is ensuring compliance. In fact, compliance with victims’ rights should be a priority. Victims’ rights are illusory if there is no redress for victims. Holding public officials and agencies accountable under a victims’ rights declaration / charter is right – because victims’ rights are right. The enforcement mechanism should be independent from political interference and/or pressures. Awareness among public officials and the public is vital, so training, education and other ‘awareness’ raising initiatives are necessary. Technology can enhance monitoring, facilitate compliance and provide useful ‘managerial’ information. Always be mindful of victims’ views / needs, so listen ‘actively’.

Victims’ Rights – Compliance Measures – Lessons Learnt Decide which individual or agency will accept accountability for monitoring and reporting on compliance. Decide what type of compliance system – for example, driven by a centralised or local board – given the political system or political context. Decide what role key stakeholders (including government agencies & non-government organisations) will play. Decide whether it is appropriate to create remedies for violations of victims’ rights. Decide if enforcement is viable under existing budget constraints (and be prepared to prioritise). Decide what, if any, additional functions the individual / agency charged with compliance should have (for example, training public officials & raising victims’ awareness). Build in to victims’ rights declaration / laws, as well as the compliance mechanism, an evaluation plan

Parallel – Procedural & Distributive - Justice