The ACT Attorney-General, Gary Humphries, was quite right to identify difficulties with the system of criminal-injuries compensation in the ACT and set out to do something about it. However, the result has been appalling.
The law passed last week has two fundamental weaknesses. It creates different classes of people with unequal rights and it removes existing rights retrospectively. The ACT Legislative Assembly should be more diligent about upholding principles of equality before the law and avoiding retrospectivity.
The new law exempts police, emergency services and victims of sexual assault from new provisions that prohibit damages for pain and suffering in all but very serious cases. The exemption for sexual assault carries some logic in the face of the other prohibition because it is often the case that these victims would not receive the high level physical injury required to qualify for a pain-and-suffering payment under the new system yet they usually suffer significant psychological damage.
However, the exemption for police and emergency services has no logic of its own. Independent MLA Dave Rugendyke argued that they come into greater contact with danger from criminals in their work. Well, so to bank tellers, service station attendants and many others.
Criminal injuries compensation is to help victims who otherwise get no help. Police and emergency services employees have access to workers’ compensation. True, police lost some workers’ rights in that they cannot sue separately for employer negligence, but they still have workers’ compensation for injury to cover medical costs and lost wages.
If it is fair to compensate police and emergency services people for pain and suffering under criminal injuries legislation it should be fair to compensate everyone else for it. They are all human and all suffer pain. The exemption is not justified.
Mr Humphries was right to seek to limit the cost blow-out of the scheme — now expected to go to $12 million a year. He was right to centre on pain and suffering payments in cases other than major permanent injury. But he should not have agreed to the exemption put by Mr Rugendyke and backed by fellow independent Paul Osborne. Both are former policemen. Further, when both opposed the heroin supervised injecting room, presumably because they saw some votes in it, they received support for the Australian Federal Police Association. It looks like some mutual back-scratching. It is certainly not good law-making — special deals for special interest groups. It gets worse, the police (as well as emergency services and sex-assault victims) are also exempted from the retrospectivity provisions so they can get up to $50,000 under the old scheme for injuries incurred before last week. Everyone else comes under the new scheme immediately. The new scheme is less generous.
Mr Humphries was wrong to make the new law retrospective. That part of the law make be subject to constitutional challenge, whatever the result it is still bad in principle to take rights away retrospectively.
The scheme certainly needed an overhaul. It was aimed at innocent people with no other recourse. It has been exploited too much by people who have been victims of assault after putting themselves in dangerous situations and getting involved in drunken brawls. It has been used too much by police who have other remedies. It has been used too often for minor injuries.
The overhaul of the scheme was overdue, but it was not worth this price. The Government is too beholden to Mr Rugendyke and Mr Osborne. In this case it should have told them No.