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:
Part 1—Preliminary
1—Short title
This Act may be cited as the Victims of Crime (Victim Participation) Amendment Act 2006.
2—Commencement
This Act will come into operation 2 months after the date of assent.
3—Amendment provisions
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
15—Insertion of Part 2A
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.