Justice and Community Safety Directorate GPO Box 157

VICTIMS OF CRIME COMMISSIONER I ACT

Legislation, Policy and Programs

Justice and Community Safety Directorate GPO Box 157

Canberra ACT 2600

Thank you for the opportunity to respond to the Government's discussion paper: 'Designing a model for the effective protection of human rights.' I have sought input for this response from my valued staff at Victim Support ACT and their views are also represented in this document.

I recognise that it is the Government's prerogative to decide how resources will be allocated to deliver services to our community. I have attempted to respond to this discussion paper by ensuring that the interests of victims of crime remain paramount and by identifying the benefits and risks to their interests in the proposed re-modelling of the statutory rights protection agencies.

I had previously expressed my concerns with the 'Review of Protection of Rights Services Report' prepared by NOUS Group in January 2014 and I support the efforts made by Government to address the issues I raised in response to that report, in particular, the proposed abolition of the Victims of Crime Commissioner position and the lack of consideration given to the interests of victims of crime.

Previous reviews

This is the third Government review of rights protection agencies in the ACT since 2003. Given the considerable work already done around the efficiency and effectiveness of rights protection agencies it is useful to consider the current proposed model for the New Human Rights Commission in the context of the two previous reviews.

Following the Reports of the Board of Inquiry into Disability Services (the Gallop Report) and the Report of the Review of ACT Health (the Reid Report), the Government sought its first independent review of the statutory oversight functions and community advocacy agencies. That first review was conducted by the Foundation for Effective Markets and Governance (FEMAG}. The FEMAG review investigated the system of statutory oversight and community advocacy operating in the ACT as a whole, rather than detailed aspects of individual agencies, with a view to determining whether the existing systems were effective and efficient in improving service delivery and protecting rights of consumers.

The terms of reference for the FEMAG review did not specify the examination of the functions of the Victims of Crime Cooordinator (the predessor position to the establishment of the Victims of Crime Commissioner position in 2011}. The report following that review was released for public comment in December 2003. The FEMAG review identified a number of shortcomings in the statutory oversight system and proposed options for amalgamating services and resources.

The FEMAG report echoed the Reid Report in identifying a need to consolidate existing complaint bodies, to ensure an optimum system for consumers and citizens and to allow flexibility in the use of

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resources. The FEMAG report noted that a series of small stand-alone agencies would not be able to undertake the challenging tasks expected of them.1

In August 2004, the Government released its response to the FEMAG report, stating that 'through the review of oversight arrangements, the Government aimed to identify the statutory oversight model which would be the most appropriate for the ACT into the future.12 The Government's model

allowed for a President of the Commission to be responsible for the management of one office to receive complaints under all relevant legislation and to undertake a conciliation role within the soon to be established Human Rights and Service Review Commission. The Government's response to the FEMAG report contained no reference to the functions or location of the (then) Victims of Crime Cooordinator.

In 2009, KPMG was contracted by Government to determine and report on the extent to which the FEMAG review and its recommendations had been implemented and the extent to which the intent of the FEMAG recommendations had ben met. The KPMG review specifically focussed on the implementation of recommendations that relate to the interaction between rights focused agencies. Specifically it was to consider:

o  the impact that the structure of the Human Rights Commission was having on the effectiveness of statutory oversight bodies;

o  any on-going issues, originally identified in the FEMAG Review, that still required action;

o  any new or emerging issues or challenges facing rights focussed organisations in relation to the statutory oversight and advocacy system; and,

o  opportunities for potential improvement within statutory oversight agencies that fall under the umbrella of the JACS portfolio.

The 2008-09 review of the Victims of Crime Act 1994 commenced well before KPMG was commisioned and a Victims of Crime Act Issues Paper had been released. That Issues Paper, referred to by KPMG in its draft report, raised matters that were directly relevant to those that were considered by FEMAG, i.e. complaint mechanisms, integration of functions into existing structures and gaps in the coverage of statutory oversight agencies. I recommend that Government considers that Issues Paper when deciding a model for a New Human Rights Commission as it contains relevant and useful information that could be used to establish the new Commission.

The KPMG Report made reference to a proposal made by the Victims of Crime Coordinator to re­ locate the Coordinator position within the Human Rights Commission. The purpose of this was to address a perceived conflict of interest with the functional delivery of the Coordinator's multiple roles as an independent statutory officer and agency head of the Government agency, Victim Support ACT. That suggestion was touched upon in the report, noting that the proposal 'received

limited support from the Commission.' 3

1The Right System for Rights Protection" - ACT Government Position Paper on the System of Statutory Oversight in the ACT, 2004, p1-11.

2 The Right System for Rights Protection" - ACT Government Position Paper on the System of Statutory

Oversight in the ACT, 2004, page iv.

3 Review of recommendations made by the FEMAG Report: KPMG, 2009, p19

The proposal however was in keeping with the ACT Government's position when creating the Human Rights Commission:

The model also provides the flexibility to introduce additional responsibilities and Commissioners in the future, with relevant functions allocated to existing Commissioners or new appointees.4

Indeed, 'the ACT Government also interpreted the findings from the (FEMAG} review that there was a need to consolidate the existing complaints bodies...'5•

We know therefore that the current proposal by Government to consolidate statutory rights protection agencies is not new and it is not one that I oppose in principle. However, there are matters that need to be resolved in greater detail before I can be confident that the current resources being applied to the interests of victims of crime will not be diverted to meet future resourcing shortfalls in the New Human Rights Commission.

In addition to the resourcing issue, there are other details that need to be settled before it is clear to me whether the interests of victims will be strenghthened by forming the New Human Rights Commission.

When first creating the current Human Rights Commission, the Government disagreed with FEMAG's recommendation 17 - ' that all oversight bodies (should) be made subject to the jurisdiction of the Ombudsman'6• The Government argued that 'it is inconsistent with the independent scrutiny role of

those oversight bodies to have the statutory functions of investigation, monitoring and concilitation subject to the Ombudsman's jurisdiction.' 7 The Government's then stated policy position has implications for the current proposal as the Victims of Crime Commissioner does not have an investigative function.

The establishment of the New Human Rights Commission presents an opportunity to Government to strengthen the interests of victims of crime by providing the new Commissioner for Victims of Crime an investigatory function. Delivering this function to the Territory's victims of crime advocate would strengthen the voice of victims.

It should be noted that vesting an investigative function into the functions of the new Victims of Crime Commissioner would represent a shift in government policy. In 2010, when establishing the position of Victims of Crime Commissioner, the Government allowed the investigative function of the Victims of Crime Coordinator to fall to other complaints entities, such as the Ombudsman and the Human Rights Commissioner, 'to address the level of actual, perceived or potential conflict of interest... some in the sector feel existed as a result of the Victims of Crime Coordinator having both

4 The Right System for Rights Protection" - ACT Government Position Paper on the System of Statutory Oversight in the ACT, 2004, page iv.

5 Ibid, p3

6 Report of the Review of Community Advocacy and Statutory Oversight Agencies: FEMAG, October 2003, p16

7 The Right System for Rights Protection" - ACT Government Position Paper on the System of Statutory Oversight in the ACT, 2004, page iv.

advocacy and investigative roles.'8 That perceived conflict of interest issue has never been articulated in any detail.

The Government's previous policy position on this issue was that it is inconsistent with the independent scrutiny role of oversight bodies to have the statutory functions of investigation, monitoring and conciliation subject to the Ombudsman's jurisdiction.9 The perception that the Victims of Crime Commissioner would have a conflict of interest in having a service delivery function,

an advocacy role and a investigatory function, could be balanced by ensuring that the investigatory function only applied to agencies engaged in the administration of justice as it relates to the guiding principles of the Victims of Crime Act 1994.

The perceived conflict of interest perception could be further addressed by legislating that the Victims' Services Scheme (which the Victims of Crime Commissioner is responsible for managing) is not a part of the definition of the 'administration of justice'. The Victims of Crime Act 1994 Issues Paper also proposed this, stating that 'a Commissioner for Victims' Rights could be given similar powers as other Commissioners under the Human Rights Commission Act, including a complaints

handling and investigation role.'10

The FEMAG report also considered a number of options for restructuring rights protection agencies in the ACT, with the emphasis on what was going to work best for clients, use resources most effectively and prevent a dominance of one set of sectoral interests over another. The FEMAG report warned that subsuming all rights protection activities under one banner poses a risk to

recognition of certain consumer areas.11 FEMAG recognised by subsuming the function of specific

commissioners (e.g. the Disability Commissiner) into a larger body would mean that for those communities, 'the hard fought for recognition... would count for little...'.12

The risk that a dominance of one set of sectoral interests will preside over another in the New Human Rights Commission remains unaddressed in the discussion paper. It would be beneficial for Government to provide more detail about how that risk will be managed before the New Human Rights Commission is established. Greater clarity at the outset will prevent confusion and disagreement later about priorities.

Opportunity: elevating victims' rights and interests

Transferring the current functions of the Victims of Crime Commissioner to the proposed New Human Rights Commission has other potential benefits to victims of crime. It presents an opportunity to improve service delivery to victims of crim by recognising that victims' interests are tantamount to human rights. Indeed, the functions of the Victims of Crime Commissioner could be

8 Presentation speech to the Victims of Crime Amendment Bill, 2010, http://www.hansard.act.gov.au/hansard/201 0/week07/3035.htm

9 The Right System for Rights Protection" - ACT Government Position Paper on the System of Statutory

Oversight in the ACT, 2004, p2-13.

10 Department of Justice and Community Safety, Issues pa per - review if the ACT Victims of Crime Act 1994, 2008 p40.

11 Report of the Review of Community Advocacy and Statutory Oversight Agencies: FEMAG, October 2003, pp

41-42

12 Ibid, p 42

broadened across a range of areas to align those functions more closely with those of other rights protection agencies.

Some of the powers and functions of the current Human Rights Commissioners that could be incorporated into the new Commissioner with Community Safety and Victims of Crime functions include:

o  identifying, inquiring into and reviewing issues relating to the matters that may be complained about by victims of crime {s14{1)(e) Human Rights Commission Act {HRCA)

o  reporting to the Minister, and other appropriate entities, about each inquiry and review or advising the Minister and other appropriate entities about the inquiry and review {s14{1}(f) HRCA

o  establishing advisory other committees {s19c HRCA)

o  managing representative complaints {s71 HRCA)

o  asking for information, documents and other things {s73 HRCA)

o  initiating reports {s84 HRCA)

o  publishing names and details of non-complying entity {s86 HRCA)

o  reporting to Minister and tabling of reports in the Legislative Assembly {S87 HRCA)

What constitutes the group referred to as 'minority communities'?

The discussion paper needs more detail about whatgroup of people are being referred to when it states that the Commissioner for Community Safety and Victims of Crime will act as a representative for 'minority communities at increased risk of crime, violence or overrepresentation within the justice system.' I assume this does not mean people who are in conflict with the law, as it would be impossible for one commissioner to be seen to properly represent the interests of offenders and victims of crime. What group of people are being referred to?