Re: Victims Compensation Reform and Children in Care

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1 Director: Person Acting: Peter Kelso Lydia Kelso 21 April 2015 The Hon. Gabrielle Upton, MP Attorney-General for NSW PO Box 560 DOUBLE BAY NSW 1360 Dear Minister, Re: Victims Compensation Reform and Children in Care Kelso Lawyers specialises in assisting victims, and have worked extensively in the field of victims compensation for over 30 years. Kelso Lawyers also audit countless State ward files and prepare hundreds of victims compensation claims for children in State care each year for FACS. This work has given us a special understanding of the needs of children in State care, the majority of which have been victims of crime. As you would be aware, the retrospective changes to victims compensation in 2013, with the introduction of the Victims Rights and Support Act 2013 ( the 2013 Act ), had a farreaching impact on victims of crime. Some of the worst affected by these changes have been child victims, particularly those still in State care. You would also know that during the months prior to the last election, both sides of politics made various election promises relating to victims compensation. In a media release dated 15 March 2015, the Hon. Mike Baird promised to offer a re-assessment of transitional claims (claims lodged under the 1996 Act 1 but determined under the 2013 Act). This firm congratulates Mr Baird on his announcement and we eagerly await further news regarding a re-assessment scheme. Both our firm and Victims Services were flooded with calls from affected victims shortly after the Premier s announcement. However, that is not the main focus of this letter. The fact is that child victims of crime remain unfairly disadvantaged by certain provisions of the 2013 Act which we consider to be largely due to legislative oversight. The founder and Director of Kelso Lawyers, Mr Peter Kelso spoke out in May 2013 warning of the consequences of the new regime for children in care. We seek to raise two categories of child victims with you for your consideration. We also enclose a letter from this firm previously sent to the Hon. Brad Hazzard during his time as Attorney-General which focuses on a third category of child victim victims of neglect. Your consideration of the enclosed letter would also be appreciated. 1 Victims Support and Rehabilitation Act 1996 (NSW).

2 2 1. Victims of Traumatic Brain Injury It is a sad reality that some children, during infancy, will sustain a brain injury. Shaken Baby Syndrome ( SBS ) is a recognised medical condition arising from the shaking of an infant by an adult which causes their brain to move violently within the skull. This commonly results in bleeds to the brain and eyes causing brain damage and visual loss. This type of abuse is often coupled with the fracturing of several ribs causing extreme pain to the infant. Victims of SBS are left with long-term complications such as permanent and serious brain damage, chronic seizures, visual loss and cerebral palsy, amongst other complications. Due to the age of the victim, perpetrators are often unidentified and rarely convicted. The victim is left with life-long care needs. Under the 1996 Act, victims of brain damage were entitled to receive compensation of up to $50, However, under the 2013 Act, the maximum award available to a victim of a traumatic brain injury is now only $5,000 for an assault resulting in grievous bodily harm. 3 This is called a recognition payment and is defined under the 2013 Act as being for the recognition of the trauma suffered by a victim of an act of violence. 4 Tragically, the infliction of such a horrific injury is not uncommon. In fact, during the week in which this letter was written Kelso Lawyers prepared two claims for FACS on behalf of children who suffered an acquired brain injury as a result of SBS perpetrated by one or both of their parents, leading to their assumption in to care. It is plainly an absurd and tragic result that the victim of an inflicted brain injury would receive the same recognition payment as a victim who, for example, sustained a fractured thumb. However this is the reality of the legislation as it stands and the reason Kelso Lawyers feel it so important to warrant a letter to the Minister. 2. Family Victims An immediate family member of a person who was the victim of a homicide may be entitled to a recognition payment under the 2013 Act as a family victim. 5 A recognition payment of $15,000 is available to family victims who were financially dependent on the deceased immediately prior to their death. 6 A lesser amount of $7,500 is offered to family victims who were the parent, step-parent or guardian of the deceased with no requirement for financial dependence. 7 As a result of this provision, a child must have been financially dependent on the deceased at the relevant time to entitle them to a recognition payment. This means that if a child is murdered, the deceased s sibling will not be entitled to a recognition payment. It also means that if a parent is murdered whilst a child is in care, that child will not be entitled to a recognition payment. 2 Victims Support and Rehabilitation Act 1996 (NSW), Sch 1 (Table of Injuries). 3 Victims Rights and Support Act 2013 (NSW), s 35(3)(c) and Victims Rights and Support Regulations 2013 (NSW), s 12(d). 4 Victims Rights and Support Act 2013 (NSW), s Ibid s 9. 6 Victims Rights and Support Act 2013 (NSW), 36(1)(a) and Victims Rights and Support Regulations 2013 (NSW), s 12(a). 7 Victims Rights and Support Act 2013 (NSW), 36(1)(b) and Victims Rights and Support Regulations 2013 (NSW), s 12(b).

3 3 Based on these provisions a child s trauma will not be recognised unless they were financially dependent on the deceased. It seems a curious and unjust result to hold that a child will only suffer trauma from the death of a sibling or parent if they were financially dependent on the deceased at the time of the death. Surely children are emotionally attached to their siblings and parents regardless of the provision of financial support. Proposal As outlined, the above provisions in the 2013 Act are particularly detrimental to child victims of crime and specifically to children who are in the care the State. The provisions prevent children in care from receiving recognition of the trauma that they suffer from exposure to these criminal acts. Kelso Lawyers make the following proposals: 1. The 2013 Act be amended to exclude the term grievous bodily harm as this term warrants too broad of an interpretation for physical injuries. From our experience, grievous bodily harm covers injuries ranging from bruising and minor fractures to catastrophic brain injuries. This results in absurd and unjust outcomes for victims. Compensation for chronic and serious injuries needs to better reflect the trauma suffered by the victim if the Act is to come close to achieving its purpose. It is our suggestion that there be the creation of a category called serious bodily harm and that this should include subcategories that relate to the severity of the injury and the longevity of its impact on the victim s quality of life with monetary payments reflecting this scale. 2. The removal of the financial dependence requirement under s 36(1)(a) for family victims. Conclusion Kelso Lawyers are committed to advocating for the rights of victims of abuse. Child victims are the most vulnerable and helpless in our society. Kelso Lawyers recognise the unique perspective that the Minister will have gained from her time serving as Minister for Family and Community Services. We entrust these issues, and proposed solutions to the Minister and thank her for taking the time to read our letter. Yours faithfully, Peter Kelso, Director KELSO LAWYERS Encl. cc: The Hon. Brad Hazzard, MP, Minister for Family and Community Services

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