Report by the Privacy Commissioner to the Minister of Justice in relation to the Victims' Rights Bill
Crime is a misfortune which anyone can suffer. The majority of victims are not to blame. They deserve to be treated with both sympathy and respect. Many victims of crimes suffer severely. Their subsequent unavoidable involvement with the criminal justice system may add to that trauma. It is essential that every possible step is taken to minimise the upset and even hardship which may be caused. I have examined this bill as it may affect the privacy of individuals. Victims may sometimes be deterred from reporting crimes or co-operating with investigations, without suitable protections, including to their privacy. The bill has the potential to better protect the privacy of victims than is currently the case.
The rights of victims are currently to be found in the Victims of Offences Act 1987 ('the 1987 Act'). This Act gave effect to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted in 1985. The 1987 Act has been in force for over a decade and was thoroughly reviewed by the Victims Task Force half way through that period. Rather then simply amend the 1987 Act, a decision was taken to consolidate and enhance the law by introducing an entirely new bill. Few of the outstanding recommendations of the Victims Task Force have been adopted. The bill has no effect in the area of restitution and compensation. Although to be welcomed, the bill is essentially a modest measure which only tinkers with existing law.
In this report I discuss the provisions in the bill having implications for individual privacy. I make recommendations for amendment to this bill and to other laws.
2 Clause 1: Short Title
This bill replaces, and slightly modifies, the Victims of Offences Act 1987. However, it takes the more general title of 'Victims' Rights Bill'. The bill has nothing to say about victims of accidents, victims of natural disasters or victims of miscarriages of justice, to mention just three other groups of victims. Some of the most important rights of victims, concerning reparation and compensation, are not dealt with at all in this bill.
The bill does not articulate or codify all victims' rights. I suggest that the existing title of 'Victims of Offences Act' is more appropriate. Suitable alternatives include Crime Victims Act or Crime Victims' Rights Act.
3 Clause 6 and 7: Early information about services, remedies and proceedings
Clauses 6 and 7 continue, with some changes in drafting style, provisions presently found in sections 5 and 6 of the 1987 Act. New provision is made in both clauses to ensure that if a victim is incapable of understanding fully the information about available services and remedies and about proceedings a caregiver of the victim should also be given the information.
Intimidation and harassment
Clause 6(1) provides that a victim should, as early as practicable, be given information about 'any service or remedy (including protection against unlawful intimidation)' that is available to the victim. I suggest that victims should be told about protection against unlawful intimidation and harassment since there are now specific remedies under the Harassment Act 1997 which may be of assistance.
Caregivers and representatives
The new role accorded the caregivers of victims in clauses 6(3) and 7(3) are designed to help ensure that the rights in the bill remain meaningful even when a victim is incapacitated (for example, because of injuries as a result of an offence). However, I question whether reference to 'caregiver' is entirely appropriate.
'Caregiver' is a term most usually associated with persons receiving health or disability services. It is also associated with persons responsible for looking after children, such as custodial parents. Use of the term 'caregiver' is probably appropriate in relation to clause 6 which concerns the providing of early information about services. It may be that those services will be especially useful in relation to the role of caregiver. However, in terms of seeking remedies under clause 6, and obtaining information about proceedings in clause 7, there may be other persons who are as appropriate, or more appropriate, to inform than a caregiver. For example, there may be a person who has a formal role to represent the victim's interests but who is not in a caregiver role. An obvious example would be a victim who is represented by a lawyer. Some victims may use advocacy services (which exist in the health and disability sector and in the employment context). There may also be a guardian, welfare guardian or person holding an enduring power of attorney in relation to the victim. It should not be assumed that such persons would necessarily be caregivers.
I therefore question:
- whether 'caregiver' is the appropriate term to be used in clauses 6, 7, 14 and 16 or whether an alternative phrase such as 'caregiver or representative' is preferable; or
- whether the bill should define 'caregiver' in a way which encompasses a guardian or representative as well as persons acting in the normal caregiving role.
Information and explanation
I question whether simply giving 'information' about proceedings in clause 7 is really sufficient. The Victims Task Force noted that the provision of information about proceedings needs to be accompanied by explanation and support. It mentioned, for example, that it is necessary for the complexities of charging and sentencing to be explained to the victim so that they can understand its implications. Although I have no specific recommendation, perhaps thought could be given to the merit of amending clause 7(2) to make it clear that a victim should be given the information together with appropriate explanation or an opportunity for questions to be answered.
4. Clause 9: Victim's residential address not to be disclosed
The bill provides:
'Victim's residential address not to be disclosed - A victim's residential address should not be disclosed in court unless to exclude it would be contrary to the interests of justice.'
I support this provision which continues unchanged a right contained in the 1987 Act. The right is valuable since it prevents counsel or the judge unnecessarily referring to this fact in open court when it might be noted by the accused, journalists or members of the public. However, I wish to highlight four issues which may mean that the provision does not fully achieve its objective of keeping details of a victim's address private. These relate to:
- effectiveness of the provision;
- search of court records;
- access to general government files;
- searches of public registers.
Effectiveness of the provision
There is some danger that this provision may be seen simply as an aspiration which may be ignored with impunity. To be fully effective, a general principle of this type needs to be taken up in the training and practices of judges, counsel and others appearing in courts. It should be incorporated, in a suitably prescriptive form, into rules governing courtroom procedures.
In a major report in 1993, the Victims Task Force noted that a breach of this principle can have a severe impact on victims who have moved in order to live at an address or in a town unknown to the offender. In a victims' needs survey, the Task Force found that over half of those surveyed felt that the principle was being acted on while one-third said that it was not always carried out. However, it was noted that the requirement concerning a victim's residential address was included in Police training. The Task Force recommended that 'should' in the provision be replaced with a mandatory 'shall' and that any guidelines for judges should make specific reference to the provision.
In my view, if the provision is truly to be effective, it must be appropriately reflected in rules governing the examination of witnesses in court, that is in the Evidence Act 1908.
In making this suggestion I note that the Law Commission has recently completed a major review of evidence law and has recommended provisions to replace the Evidence Act 1908. Currently, section 23AA of the Evidence Act 1908 provides that the address of a complainant in cases involving sexual violation is not normally to be revealed in open court. The section is silent as to other complainants or witnesses. Section 23AA also constrains the disclosure in open court of the occupation of complainants in cases involving sexual violation. The Law Commission has recommended that a new provision be enacted as follows:
'Privacy as to a witness's precise address
(1) Except with the permission of the judge:
(a) no question can be put to any witness and no evidence can be given; and
(b) no statement or remark can be made in court by a witness, lawyer, officer of the court or any other person involved in the proceedings; as to the precise particulars of a witness's address (for example, by asking or referring to details of the street and number).
(2) The judge must not grant permission unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of such direct relevance to the facts and issues that to exclude it would be contrary to the interests of justice.
(3) An application for permission may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.'
The Law Commission explains that the intention of the new section is to protect the safety and privacy of witnesses when they given evidence in open court, by not allowing evidence of, or statements and questions about, the particulars of the witness's address except with the judge's permission. The Law Commission recommends that the balance of section 23AA, concerning restrictions on requiring complainants in cases involving sexual violation to give their occupation in court, be continued in a separate provision relating solely to such cases.
I support the Law Commission's proposed recasting and broadening of the existing section 23AA of the Evidence Act 1908. In due course, I expect that a new evidence code, probably closely resembling the Law Commission's draft code, will be brought before Parliament. However, with such a major and complex law reform, one cannot with any certainty know when new provisions might be enacted. I believe that there is a case in the interim to separately enact the clauses concerning the disclosure of the addresses and occupations of witnesses in conjunction with this bill. In due course, they would be consolidated into the new evidence code. It does not appear to me that the reforms proposed in this respect raise any complexities concerning other more controversial Law Commission recommendations on which the Government has yet to take policy decisions.
Search of Court records
Clause 9 only relates to the revealing of a victim's residential address in court itself. It does not constrain the searching of court records which may themselves reveal a victim's residential address. The Criminal Proceedings (Search of Court Records) Rules 1974, together with other relevant enactments, deal with the search of court records. These regulations say nothing specifically about victims' addresses. It might be valuable for a new clause to be inserted into those regulations limiting access to those details.
Access to government files
A victim's residential address might also be noted on some administrative files, such as those maintained by the Police or Accident Compensation Corporation. Third parties can request access to such information pursuant to the Official Information Act 1982. In normal cases, one might expect a victim's address to be deleted from information released to third parties. However, there is no explicit requirement to do so under the Official Information Act, rather the issue would be subsumed into the general ground for refusing a request to access information based upon the need to protect personal privacy. There may be some value in specifically providing in this bill that public sector agencies should withhold the residential address of victims unless it is necessary in the public interest to release such information. A specific statutory provision to that effect would be an effective guide in relation to Official Information Act requests, to enable such information to be withheld from requesters.
The provision does not constrain persons in the criminal justice sector from releasing details of a victim's address. A police officer might, for example, ring up a journalist or newspaper editor and reveal the identity or address of a victim. Of course, one would expect a police officer or other official in the justice system to be very circumspect about revealing such information particularly given the obligation in section 3 of the 1987 Act (now found in clause 4 of this bill) to treat victims with respect for their privacy. Information privacy principle 11 in the Privacy Act also constrains disclosure in such situations. However, given that there is a specific right concerning victims' residential addresses, it may be valuable to address the matter directly in a precise provision rather than rely upon protections for victims arising from more generalised provisions in clause 4 or information privacy principle 11.
Searches of public registers
If a victim's name is known, through having been revealed in newspaper reports or in open court, it is often possible to find out that person's residential address through the use of public registers. This is particularly the case if some other detail concerning the individual is known such as the suburb or town in which they live, their motor vehicle licence plate number, or their occupation. For example, if the name of a victim or witness is known, and that person is believed to live in Hamilton, it is a straightforward matter to simply search the published electoral rolls for the two Hamilton electorates. If a licence plate number is known, say, by observing a person arriving at the courthouse, the address of the registered owner can be obtained across the counter at NZ Post outlets for a small fee. If victims are in a regulated trade or profession, their addresses may be available on an occupational register.
The easy availability of personal details, including residential address, from public registers is a privacy issue that I have worked on for some years now. I have sought to encourage the enactment or reform of public register laws so as to facilitate the disclosure of information to those with legitimate and relevant needs but to constrain disclosure to those who have no proper purpose in having the details. A variety of statutory approaches to this end having been tried over the last few years touching upon matters as diverse as dog ownership, personal property securities and amateur radio licences. A variant being promoted for reform of the motor vehicle register law would allow only partial address details to be released including the suburb or town but omitting the precise street and house number.
While such measures may generally enhance the privacy of everyone with respect to the operation of public registers, they do not provide complete protection to persons who have a special reason to fear for their personal safety. This can be achieved only through suppression mechanisms.
A number of statutes under which public registers are maintained have specific provision for suppression of details, such as a person's residential address, in the interest of the personal safety of a person or his or her family. Examples of suppression mechanisms in law include:
- Transport (Vehicle and Driver Registration and Licensing) Act 1986, section 19(5);
- Radiocommunications Act 1989, section 11(3)(b);
- Electoral Act 1993, section 115;
- Fisheries Act 1999, sections 102(3) and 129(3).
Furthermore, Part VI of the Domestic Violence Act 1995 established a general suppression mechanism applying to a wide variety of public registers in cases where a victim of domestic violence has obtained a protection order. This provision does not extend to all victims of crime or persons generally who fear for their safety or fear harassment.
4.17 Recognising the existing limitations on protection of residential address information on public registers, I made a recommendation for a law change as a result of my review of the operation of the Privacy Act. I have suggested that a new public register principle and a statutory suppression mechanism be introduced to protect safety and ensure freedom from harassment. Agencies maintaining public registers would be required to store certain details separately from information generally accessible to third parties. A single generic suppression regime should be created in the Privacy Act, superseding and incorporating the present Domestic Violence Act regime. A proposed new public register privacy principle was suggested which might appear as follows:
Personal safety or harassment
(1) Where practicable, personal information revealing an individual's whereabouts should not be stored in a part of register generally accessible to the public where it is shown on an application by the individual to the agency maintaining the register, that the individual's safety or that of the individual's family, would be put at risk through disclosure of the information.
(2) An agency maintaining a public register shall have reasonable procedures to invite, evaluate, and determine, applications by individuals whose personal safety may be put at risk by disclosure.
(3) It is an exception to clause (1) of this principle where other appropriate safeguards are taken to ensure that the information is not disclosed to the public for purposes unrelated to the purposes for which the information was collected or obtained.
In this context family could include others within the same household.
It seems to me that acting upon these recommendations will benefit victims of crime.
5. Clause 11-13: Victim impact statements
Section 8 of the 1987 Act presently addresses the matter of victim impact statements. This is a short provision of 4 subsections. Section 8 is to be replaced by three new sections of considerably expanded length. The new provisions incorporate 2 significant changes:
- enabling the victim to give a victim impact statement to the judge orally rather than to have any statement conveyed through the prosecutor;
- controlling the disclosure and distribution of a victim impact statement to protect the victim's physical safety, emotional welfare, and privacy.
With respect to the first change, I take the view that it is imperative that prosecutors and others who work with victims fully explain the implications to victims of making an oral statement. It is an experience which a victim will encounter at a traumatic time and likely without any previous experience. Their words heard in open court, rather than by an oral statement from a prosecutor or by a written statement, will become known to all those in the courtroom and may be reported in the news media. This may have a profound effect on the victim's private life and the decision to give an oral statement should be made after having the implications (including any possibility of having the judge control dissemination of the statement) fully explained to them. It is important that a victim is made aware of any intimate information about themselves which is already before the judge so they do not think they have to detail it in open court.
Victims should not be pressured into making an oral statement by any person. It must remain an obligation on the prosecuting authority to undertake the work involved in preparing written statements for the victim.
Clause 12(2)(a) provides that the prosecution may give a victim impact statement to the judge either orally or by means of a written statement about the victim. On the other hand, provision is made solely for the victim to give a statement orally. The apparent absence of an option for the victim to give a written statement is presumably because this will be prepared by the prosecutor (who in any case also arranges for it to be duplicated for the judge and defence counsel). However, it seems to me that the provision should explicitly acknowledge the possibility of a victim giving an oral statement and conveying further information by written statement. Provision of such an option will, I believe, better serve the interests of privacy and victim autonomy. For example, there may be cases where the oral statement may reveal information the victim wishes to make known publicly whereas the written statement might contain intimate health or financial effects which may be desired to be conveyed in a more circumspect manner.
Controls on disclosure and distribution of vicitm impact statements
I fully support the second change directed towards providing controls, if appropriate, on the disclosure and distribution of victim impact statements. The new provisions contained in clause 13 enable the court to give directions and impose conditions about the disclosure and distribution of a victim impact statement. Amongst other things, the court may:
- give directions and impose conditions on the copying of the victim impact statement, including the number of copies that may be made;
- give directions to or impose conditions on the persons to whom the statement may be disclosed or distributed;
- direct that the whole or any part of the statement not be disclosed or distributed, either generally or to a specified person;
- impose any conditions on the disclosure or distribution of the whole or any part of the statement;
- direct that the whole or any part of the statement not be published, either generally, or by a specified person;
- impose any condition on the publication of the whole or any part of the statement.
- The court may give directions and impose conditions on any other matters to do with the disclosure and distribution of the statement, as the court considers necessary or appropriate in the circumstances.
6 Clauses 14-16: Notice of certain matters
Clauses 14-16 continue the notification rights currently found in section 11 of the 1987 Act. Section 11 originally dealt simply with notification of an offender's release or escape. This was later amended to encompass notification of parole hearings. The new provision also consolidates a recent amendment, not yet in force, which provides for the notification to a victim of the offence of sexual violation or other serious assault or injury of the impending release or escape of an offender detained as a result of an order made under sections 45 and 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. I supported that recent amendment which directly addressed a concern that some victims had expressed to me.
Role of caregivers
Change to the provision for the giving of notice is contained in subclauses 14(2) and (4). Clause 14(2) provides that if the victim is not, or may not be, capable of making a request to be placed on the notification register, a caregiver of the victim should be given the change to make such a request. Clause 14(4) provides that:
'If the victim is not, or may not be capable of understanding a notice under this section the notice should also be given to a caregiver of the victim.'
I have no objection in principle to the new role accorded to caregivers. However, I would mention some issues which may result. As earlier mentioned, 'caregiver' is not defined although the term is one often referred to in the context of health and disability services. Its use may give rise to some confusion in the areas outside the health and disability sectors. There is the possibility of disputes within families as to who constitutes a caregiver. This statute has not attempted to resolve that by, for example, referring solely to a 'principal' caregiver. Institutional caregivers may change frequently.
Further, there may be some ambiguity in the scheme established by clause 14(2) and (4) as to whether a caregiver who lodges a notification will normally be directly notified or if that happens only in special cases or after enquiry. It appears that a caregiver can ask for a victim to be placed on the notification register and in due course, notification would be made to the victim, not the caregiver. However, one might perhaps imagine that at the time of clause 14(2) application a caregiver would also request clause 14(4) notification directly to the caregiver as well as the victim. This would mean that the register would have two entries for notification unless at some later stage the victim or the caregiver requested that the caregiver entry be removed. In cases where a victim is, or has been rendered, under a permanent incapacity an early clause 14(4) entry might well be a very practical way of best securing a victim's rights. However, a victim of physical injuries incapable of making a request shortly after an incident or at time of trial may yet be fully healed at a later point of an offender's release.
I note and support the fact that the provisions do not permit a caregiver to request notification solely to the caregiver and not the victim. If notification is requested it should primarily be directed to the victim and not a third party who reserves for him or himself the discretion as to whether to tell the victim. In that sense, the scheme does promotes autonomy rather than paternalism.
Finally, I observe that the administering department will need to develop administrative procedures which are somewhat more complicated than those that have been operated in the past. They will, for example, need to have a process for recognising and acting upon requests by caregivers which they have not previously had to do. Procedures would also need to be established for giving effect to clause 14(4) to determine whether or not a victim is capable of understanding a notice.
Clause 14(3) provides that if a request to go on the notification register is made, it is necessary for the victim's 'current address and telephone number' to be supplied. Electronic notification would seem to have some potential in this area. I suggest that provision be made in this section for email addresses to be allowed. I am not taking the position that email notification ought to be immediately adopted in preference to any other form of notification but am merely saying that the statutory authority to do so should be allowed. This would enable the administering department to consider, at the appropriate time and subject to suitable safeguards, allowing that means of notification as an option for victims. Given the immediacy of electronic transmission, it would seem that email notification may have particular attraction in cases of emergency such as mass prison breaks.
References to a victim's current address and telephone number are also to be found in clauses 16(3) and (5). Provision could also be made for fax numbers if that is not implicit in 'telephone number'.
7 Clause 18: Amendments
The bill makes some amendments to the Criminal Justice Act 1985 and the Privacy Act 1993.
Criminal Justice Act amendments
The amendments to the Criminal Justice Act relate to the participation of victims in parole board hearings .
Privacy Act, Fifth Schedule, Amendment
The amendment to the Privacy Act's Fifth Schedule concerns the authorisation for access by the Department for Courts to records held by the Police relating to victim identity. The Privacy Act currently allows staff of the Department for Courts to have on-line access to information on the 'Law Enforcement System' (commonly, but somewhat inaccurately, referred to as 'the Wanganui Computer') as to the name, sex, date of birth, address, and telephone numbers of persons who are the victims of a criminal offence in respect of which another person has been charged. Access by the Department is limited to identity details for the purpose of providing assistance to victims in accordance with the Criminal Justice Act 1985 and the Victims of Offences Act 1987. References to that latter statute are to be replaced by reference to the bill.
Obviously, such details about victims are sensitive and need to be carefully safeguarded. The Department for Courts has certain statutory responsibilities in relation to victims when court proceedings are in train and the access is intended to be to the benefit of those victims. I would be cautious as to any other proposals for official access to such details given their sensitivity from a personal safety and privacy perspective. It is generally to be preferred that Government bodies deal directly on a one-to-one basis with victims rather than making assumptions on the basis of other department's records. However, in some cases it may be essential for the first contact to be facilitated through access to Police information.
8. Other matters
I noted at the outset of this report that this bill, despite its title, is in fact a fairly narrow measure largely amounting to a consolidation of the 1987 Act. Although the bill makes some important changes, these refine existing law rather than establish any significant new rights for victims. I now make some additional suggestions for amendments to other laws which might be beneficial to victims and their privacy.
Crime victims and the mass media
One could hardly leave the subject of crime victim's rights (or lack thereof) without mentioning news media reporting. Sometimes victims who have already been adversely affected by a particular crime are subjected to considerable unpleasantness through sensational news reporting. Some of this is perhaps unavoidable in a free society which has both an open system of justice and robust public debate. However, sometimes it appears that through sensational reporting of horrific crimes the media intrudes further into victims' privacy than is necessary to achieve the admirable objective of accurate reporting of, and commenting upon, court proceedings.
It is beyond the scope of this bill to attempt to entirely solve the difficult issues which arise in this area. However, it is appropriate for a victims' rights bill to say something. The print media in New Zealand are not regulated by statute and I have no suggestions in that regard. However, broadcast media are regulated and there exist both standards-setting and compliance bodies under the Broadcasting Act 1989. My suggestion is simply that the Broadcasting Act be amended so that there be an explicit mandate to set standards in relation to the reporting of information about victims of crime. Precisely what those standards ought to be would be a matter for the Broadcasting Standards Authority (BSA) using the statutory processes already in place.
I suggest that section 21(1) of the Broadcasting Act 1989, which sets out the functions of the BSA, be amended to specifically provide for the Authority to encourage the development and observance by broadcasters of codes of broadcasting practice in relation to the reporting of information about victims.
The US National Centre for Victims of Crime has developed a list of rights that it considers victims should have in relation to the media. I do not suggest these are suitable for direct incorporation into this bill nor indeed into a BSA code. Nonetheless, they illustrate some of the issues quite nicely without any real need for further explanation. Accordingly, I outline the NCVC's suggested rights:
'Victims should have the right:
- to say 'no' to an interview;
- to select a spokesperson or advocate of the victim's choice;
- to select the time and location for media interviews;
- to request a specific reporter;
- to refuse an interview with a specific reporter even though he or she has granted interviews to other reporters;
- to say 'no' to an interview even though the victim has previously granted interviews;
- to release a written statement through a spokesperson in lieu of an interview;
- to exclude children from interviews;
- to refrain from answering any questions with which the victim is uncomfortable or the victim feels are inappropriate;
- to avoid a press conference atmosphere and speak to only one reporter at a time;
- to demand a correction when inaccurate information is reported;
- to ask that sensitive photographs or visuals be omitted from airing or publication;
- to conduct a television interview using a silhouette or a newspaper interview without having their picture taken;
- to completely give the victim's side of the story related to the victimisation;
- to refrain from answering reporters' questions during the trial;
- to file a formal complaint against a reporter;
- to grieve in private; and
- to suggest training about media and victims for print and electronic media in their community.'
I would encourage news media organisations to incorporate similar provisions in their own ethical codes.
In its recent review of the Evidence Act, the Law Commission gave considerable attention to the position of complainants and witnesses. Some of its findings and recommendations will be of interest to anyone wishing to advance the position of victims in the criminal justice system
Of particular interest is the Law Commission's proposals concerning support for witnesses. The Law Commission states in its report:
'The Law Commission considers that complainants in criminal proceedings should be entitled to have a person near them to provide support when they give evidence (s.80(1)). In many cases, especially when young children are involved, the closeness of a person they trust (whether the children give evidence in the ordinary way (s.83) or in an alternative way (s.105)), will help the complainant to give complete and therefore more helpful evidence. The Commission also recommends that any witness (including a defendant in a criminal proceeding who testified) may apply to have a support person near them while giving evidence (s.80(2)). This proposal received strong approval from commentators.'
The Law Commission in its draft Evidence Code, fleshed out its ideas and qualified its proposal. For example, a complainant should not, in the Law Commission's opinion, have an absolute right to a support person and the judge needs to have a discretion to prevent a particular person giving support. For example, the very presence of a well known person as a support person might influence a jury's assessment of the witness's truthfulness. The conduct of the support person would be under the judge's control. That person would not, for example, speak to the witness while the witness is giving evidence. Any departures from normal conduct (such as a child wishing to sit on the knee of a support person) would require the leave of the judge.
I have previously taken the view that proposals to entitle complainants to have a support person are to be welcomed from a privacy perspective. I suggest that there is a case for such an important right for victims of crime (in their role as a complainant in a criminal proceeding) to be reflected in a general way in this bill notwithstanding that the detailed mechanics will be appropriately located in the new Evidence Code.
An entitlement to have a support person is consistent with other recent legislation dealing with individual rights. For example, the Code of Health and Disability Services Consumers' Rights includes a 'right to support' which states:
'Every consumer has the right to have one or more support persons of his or her choice present, except where safety may be compromised or another consumer's rights may be unreasonably infringed.'
The creation of such a right would be an innovative expansion of the minimum set of entitlements established in the United Nations Declaration of Basic Principles for Justice for Victims of Crime and Abuse of Power. In a small but significant way, it would move the bill beyond simply tinkering with existing rights into the realm of enhancing them. Although the idea is entirely new, it is nonetheless compatible with several of the new provisions conferring a role upon caregivers to act on behalf of victims. Although far less ambitious than the Victims Task Force's proposal for a system of victim advocacy, the suggestion for recognising support people is a small step in that direction.
I make the following recommendations:
1. Clause 6(1) should be amended to add after the phrase 'against unlawful intimidation', the words 'and harassment'. (See para 3.2).
2. In clauses 6(3), 7(3), 14(2), 14(4), 16(2) and 16(4), consideration should be given to whether 'caregiver' is the appropriate term to use or whether some other term such as 'representative', 'principal caregiver' or 'caregiver or representative' would be more appropriate. (See para 3.3 - 3.5 and 6.2 - 6.6).
3. Section 23AA of the Evidence Act 1908 should be replaced with two new provisions as set out in clauses 87 and 88 of the Law Commission's draft Evidence Code. (See para 4.3 - 4.8).
4. The Criminal Proceedings (Search of Court Records) Rules 1974 should be amended to constrain disclosure of victims' addresses. (See para 4.9).
5. Consideration should be given to including in clause 9 a direction that public sector agencies not release the residential address of a victim unless they have the victim's consent or they otherwise have lawful authority to do so and the disclosure is in the interest of the victim or in the public interest. (See para 4.10 - 4.11).
6. Appropriate amendments should be made to the Privacy Act, as earlier recommended, to provide broader rights to suppress address details on public registers. (See para 4.12 - 4.18).
7. Prosecuting authorities should fully explain to victims the implications of making an oral victim impact statement. (See para 5.2).
8. Clause 12 should make clear that a statement may be given partly orally and partly in writing. (See para 5.4).
9. Clauses 14(3) and 16(3) and should be amended to permit notifications to victims by email or fax if that is a victim's preference. A corresponding amendment would also be necessary to clause 16(5). (See para 6.7 - 6.8).
10. Section 21(1) of the Broadcasting Act 1989 should be amended to enable the issue of codes of broadcasting practice in relation to reporting of victims. (See para 8.2.-8.5).
11. Consideration should be given to including a new principle which entitles victims to have a support person present in criminal proceedings as proposed in the Law Commission's draft Evidence Code. (See para 8.6 - 8.11)
B H Slane
10 December 1999