Civil Liability Amendment (Offender Damages) Bill 2005
Reverend the Hon. Dr GORDON MOYES: On behalf of the Christian Democratic Party I commend the Civil Liability Amendment (Offender Damages) Bill, the purpose of which is to amend the Civil Liability Act 2002. The amendments proposed are of a minor nature and specifically target part 2A of the Act, which deals with special provisions for offenders in custody. I commend the bill. However, I note the comments of the Legislation Review Committee on the retrospectivity of the legislation. I will express my view on those comments later in my speech.
Part 2A of the Civil Liability Act 2002 was introduced by the Civil Liability Amendment (Offenders Damages) Act 2004. The 2004 Act established a fault-based negligence scheme for inmates, periodic detainees, home detainees and offenders performing work under a community service order. The Act imposed restrictions on the damages that can be recovered by a person for injury resulting from the negligence of a “protected defendant” suffered while the person was an “offender in custody”. Examples of protected defendants include the Crown and government departments. The underlying intention of the bill is to clarify the operation of part 2A. Honourable members will recall some glaring examples of apparent injustice mentioned in the press in the past few months.
I will point out some of the more salient aspects of the bill. The bill expands the definition of an “offender in custody” to include persons who are attending a place in compliance with the requirements of a community service order, as well as while they are performing community service work. This is an important addition. Over the many years I have been superintendent of Wesley Mission I have been responsible for many offenders who worked with the Wesley Mission doing community service work. Any injury to them while they were under our responsibility was a serious matter for us.
A report released by the Australian Bureau of Statistics in December 2004 indicated that in the September quarter of 2004 there were 51,495 persons in community-based corrections in Australia, an increase of 2 per cent since the September quarter of 2003. Nationally, the rate of persons in community-based corrections was 335 persons per 100,000 adult population for the September quarter of 2004. The male rate of participation in community-based corrections was 553 per 100,000 adult male population, in comparison to 118 females per 100,000 adult female population. Males thus were five times more likely than females to be in community-based corrections. Given these statistics, it is important that the liability legislation relating to offenders in custody is clear and well defined.
The WorkCover guidelines are issued under part 7 of chapter 7 of the 1998 Workers Compensation Act. They are imported into part 2A of the Civil Liability Act by virtue of section 26D (1). The bill allows the Minister administering the Crimes (Administration of Sentences) Act 1999 to issue guidelines regarding the administrative processes relating to medical assessments for injury. Thus, it is envisaged that the WorkCover Medical Assessment Guidelines may be used subject to certain modifications in order to make the guidelines more relevant to the instant setting. For example, in cases that concern offenders in custody, security arrangements need to be detailed for an inmate undergoing a medical assessment. Other incidental amendments are made in this context. Amendments are proposed in the bill to enable the Public Trustee to hold an amount of withheld damages up until the time a final order for restitution is made. The bill also provides for interest to be paid pro rata to the Victims Compensation Fund and the offender in cases where the final order for restitution is made for a lesser amount than the provisional order for restitution.
Lastly, I would like to refer to comments made by the Legislation Review Committee in relation to the retrospective aspect of this bill. But I must explain the context first. The bill proposes to add a new part 6 to schedule 5 to the Act. This part provides that part 2A applies to any civil liability whether arising before, on or after the commencement of the bill, and to proceedings instituted before such commencement. However, it is said that these changes do not operate to apply to part 2A in respect of any decision of a court made before the commencement day or in relation to any civil liability or proceedings to which the part did not apply immediately before the commencement day. Clearly then, the legislation will apply to proceedings commenced before the current bill is assented to, given that “proceedings” do not fall within the ambit of a “decision”.
The Legislation Review Committee has indicated that although the second reading speech on the 2004 Act noted that its retrospective application was “necessary to prevent a flood of speculative claims”, this concern may not be applicable to amendments proposed by the current bill. Consequently then, the committee has expressed its concern that the changes proposed “may nonetheless directly and adversely affect the compensation rights of individuals under that Act” and has written to the Minister seeking his advice as to the need for the retrospective application of the proposed amendments to part 2A of the Civil Liability Act 2002.
I am not a fan of retrospective legislation in general, a sentiment that I would expect would be shared by most honourable members of this House. In my opinion, when people are in the midst of making decisions whether or not to initiate legal proceedings, they should be able to trust in the fact that the applicable law will remain the same. This is important because the solicitor of the potential litigant will consider the person’s situation in light of the current law and provide advice accordingly. When the law changes retrospectively people who may have commenced proceedings inevitably will find themselves in a predicament. For example, they may not be in a position to defend their case. As to the concerns that have been raised, I rely upon the Minister, who has been contacted on this matter of retrospectivity, to make some clear statements to members of this House before we vote on this issue at the third reading of the bill. But, generally, speaking, the Christian Democratic Party supports the Civil Liability Further Amendment (Offender Damages) Bill.