Committee
Resumed from 21 November. The Deputy Chair of Committees (Hon Robin Chapple) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clause 1: Short title —
Progress was reported after the clause had been partly considered.
[Speeches and comments from various members]
Hon ALISON XAMON: Just further on this point, if I can assist the honourable member, I think part of the question was whether there are any sort of constitutional limitations on the amount of compensation that may be payable, in addition to those prescribed within the act.
Hon SUE ELLERY: Section 109 of the Commonwealth of Australia Constitution Act states —
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The High Court has interpreted the effect of that provision to be that the state law will be inoperative while the commonwealth law remains inconsistent with the state law. A state law will be relevantly inconsistent with the commonwealth law if the state law alters, impairs or detracts from the commonwealth law. In view of what is set out in section 109, the member needs to look at three legislative provisions. Firstly, section 42(3) of the Western Australian Criminal Injuries Compensation Act states —
An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss.
We then need to look at sections 49 and 52 of the commonwealth National Redress Scheme for Institutional Child Sexual Abuse Act 2018 to look at those elements of payment. Section 49, “Protection of the redress payment— general”, states —
(1) A redress payment is a payment of compensation under the scheme. However, for the purposes of: ...
(b) any other legislation of the Commonwealth, a State or a Territory; the payment is not to be treated as being a payment of compensation or damages.
The note in the commonwealth act under section 49(1) states, in part —
Note: This subsection prevents a redress payment affecting other payments that may be payable to the person under legislation.
The government view is that section 49 of the national redress act provides that a redress payment is a payment of compensation under the scheme. However, for the purposes of state law, it is not to be treated as a payment of compensation or damages. Section 42(3) of the Western Australian Criminal Injuries Compensation Act provides that an assessor must deduct any amount a person has received by way of compensation or damage for injury or loss from a compensation award. Therefore, that section requires that the state’s criminal injuries assessor act inconsistently with section 49 of the national redress act. That is because section 42(3) requires the assessor to take into account any prior payments. Section 49 prevents the state assessor from taking commonwealth redress payments into account; therefore, the state assessor is forbidden from doing that under section 49 of the commonwealth act. Noting that section 49 of the commonwealth act says that an amount received as a redress payment cannot be taken into account when calculating a state compensation award, it is therefore inconsistent with section 42(3) of the Criminal Injuries Compensation Act, which requires the state assessor to take into account amounts received by way of compensation or damages, and that would include a commonwealth redress payment. If we go back to section 109, which says that, to the extent that there is an inconsistency, the commonwealth provisions apply, there appears to be a direct inconsistency between the commonwealth and state legislation. That inconsistency will occur when the Parliament adopts the commonwealth act, including section 49, and, as a consequence, that adopted act will apply as a commonwealth law in Western Australia. I hope that that was not too confusing.
Hon ALISON XAMON: I will try to paraphrase what has been described into a quite succinct understanding. I would like to know whether I have this wrong. As I understand what the minister has just relayed to me, she has indicated that if we were not to include within the legislation the provisions to exclude the capacity for people to apply for criminal injuries compensation if they had received redress payments, the current provisions within the CIC act that preclude double dipping, if you like, or that require previous payments to be taken into account, could not be applied and that would mean that someone could ostensibly apply for redress and, because of the inconsistency, also apply for criminal injuries compensation. Have I understood that correctly?
Hon SUE ELLERY: That is correct.
Hon AARON STONEHOUSE: Has the government sought legal advice from the State Solicitor’s Office on this matter?
Hon SUE ELLERY: Yes, we have.
Hon AARON STONEHOUSE: Can the minister tell us what that advice was?
Hon SUE ELLERY: No. There is a longstanding convention that the government does not reveal its legal advice, but I can assure the member that the State Solicitor’s Office was involved in the drafting of these provisions.
Hon ALISON XAMON: Because the inconsistency between the WA act and other states’ acts is a source of some concern, can I confirm whether provisions in other state criminal injuries compensation acts are similar to the provision within the CIC act that we are now referring to, which was designed to prevent double dipping?
Hon SUE ELLERY: Other jurisdictions’ legislation uses much broader language than the language in the Western Australian provisions. I am advised that the Western Australian provisions are—this is my word—more prescriptive than others. There is significant variation in the legislative basis and policy intent of other jurisdictions’ equivalent of the criminal injuries compensation scheme. They have taken different policy positions on how redress will intersect with their respective criminal injuries compensation schemes and they have not necessarily needed to include provisions similar to part 4 of the Western Australian bill because they do not take the view that they are affected by section 49 of the National Redress Scheme for Institutional Child Sexual Abuse Act due to the way that their particular state scheme is crafted. The WA Criminal Injuries Compensation Act refers to compensation and damages throughout. This means that should a person receive a National Redress Scheme payment and then apply for criminal injuries compensation, the Chief Assessor of Criminal Injuries Compensation would not be able to consider the National Redress Scheme and deduct it as appropriate when making an award of criminal injuries compensation. The result is that a person would be compensated twice for the same abuse: once by the responsible institution and then again by the state government—the taxpayers of Western Australia. As I said, other jurisdictions’ legislation uses broader language. Language such as “any other payment” is used in some jurisdictions, and those jurisdictions are of the view that that will enable them to take into consideration National Redress Scheme payments when making a victims of crime payment.
[Speeches and comments from various members]
Hon ALISON XAMON: I also have a question arising from Hon Nick Goiran’s proposed amendment, which will obviously be discussed further down the track. If the amendment were to be adopted, would there be any other consequential amendments required to make the scheme work; and, if so, could the minister please be quite specific about what those likely consequential amendments would be?
[Speeches and comments from various members]
Committee interrupted, pursuant to standing orders.