The call by the Chief Justice of the Supreme Court, Paul de Jersey for a review of victim's of crime compensation is timely. He regards the scheme as inadequate and asks us "to dip into our own pockets to compensate victims". Further, he believes the scheme should be "akin to the assessment of civil compensation as in motor car accident compensation schemes". If this means an unfunded and open-ended scheme it would result in payouts for serious personal injuries of upwards of half a million dollars.
This assertion on the taxpayers' resources is but one of several serious deficiencies in the Chief Justice's stand.
In fact, he should not be taking a stand at all. The question is clearly a matter of public policy, not a legal matter and judges have no particular legitimacy on policy. The independence of the judiciary is difficult to maintain when opinions are offered on legislation. A judge should never be a legislator. Although speaking out is not of itself grounds to disqualify the judge in hearing future cases, he has now clearly cast himself as a "plaintiffs" judge.
Criminal compensation is like other forms of civil compensation, whether motor car accidents or workers' compensation, except in one crucial respect. The motorist or employer can insure against the liability of a claim, but the citizen cannot insure against the remote possibility of criminal violence. The criminal will be punished by society as a means of restoring law and order. The victim has a right to sue the wrongdoer as a means of seeking justice. However, does the fact that criminals are by and large not wealthy and are uninsured mean that the taxpayer should have to stand as the criminal's insurer?
If there is to be a form of insurance, why compensate this form of harm and not others? What of those who are suffering because of congenital causes, or disease or natural disaster, or accident where no wrongdoer is apparent. Is such suffering to be unrewarded, and that at the hands of criminals be rewarded? If so there needs to be a special rationale for victims of crime. I doubt the criminal compensation scheme acts as a deterrent to violent crime. The resources so used may be better devoted to crime prevention, to minimise risk to future potential victims. The system is really a "top-up" for a certain class of victim, those who have a common law action available but no "deep pockets" to pay compensation. This is hardly a convincing rationale for the scheme.
If the scheme is a salve to the state's conscience for failing to maintain law and order, so be it. But what is a fair amount?
How much does a soldier receive for being a victim of the violence of another soldier? Basically, early access to an aged pension and the right to seek a disability pension of modest amount. The soldier was hired for the task, and is in a contract with the state, but still there is no suggestion of large lump sum payments. Those who are prevented from working have access to a disability pension, and Medicare pays medical expenses. In the crime compensation scheme Medicare and Social Security cannot recover their costs, unlike the workers' compensation scheme. Why should the state provide compensation, over and above income replacement and medical expenses? Those who call for an increase in the funds to be devoted to victims of criminal violence should think of those in similar positions who do not have a course of action other than recourse to the medical insurance and social security systems.
The criminal compensation scheme is an act of grace by the government. The legislation clearly states that the government is not liable for the victims of crime. Governments do not accept that they are liable for the actions of criminals. Those who seek justice with taxpayer dollars, must concede that the payments are an act of charity, nothing more. The question of how much is enough thus becomes highly problematic. Should it be more than for those born into pain and suffering, more than those suffering from disease, more than those suffering from acts of nature, or plain bad luck, more than the dispossessed or unemployed, more than the soldier?
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