Untitled document
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purposes 1 2. Commencement 2 3. Principal Act 2
PART 2—AMENDMENT OF PRINCIPAL ACT 3
4. New section 1 substituted 3
1. Purpose and objectives of Act 3
5. Definitions, etc. 4 6. Assistance available to primary victims 5 7. New section 8A inserted 5
8A. Special financial assistance to primary victims for
significant adverse effects 5
8. New section 10A inserted 8
10A. Additional assistance available to certain secondary
victims 8
9. Assistance available to related victims 10 10. Effect of other entitlements 11 11. New section 27A inserted 11
27A. Information to be given by related victim applicants 11
12. Duty to act fairly and expeditiously 12 13. Procedure of Tribunal 13 14. Power to adjourn 13 15. New section 42A inserted 13
42A. Inspection of documents 13
16. Publication of material 14 17. Costs 14 18. Variation of award 14 19. Minor amendments 15 20. New section 77 inserted 15 77. Transitional provisions (Victims of Crime Assistance
(Amendment) Act 2000) 15
PART 3—AMENDMENT OF SENTENCING ACT 1991 20
i
Section Page
21. New Subdivision (1) inserted in Division 2 of Part 4 20 Subdivision (1)—Compensation for pain and suffering etc. 20
85A. Definitions 20 85B. Compensation order 21 85C. Application for compensation order 22 85D. Extension of time for making application 23 85E. Proceeding on an application 24 85F. Court must not refuse to hear and determine application except in certain circumstances 24 85G. Evidence 25 85H. Court may take financial circumstances of offender into account 26 85I. Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996 27 85J. Court to give reasons for its decision 27 85K. Costs of proceeding 27 85L. Right to bring civil proceedings unaffected 27 85M. Enforcement of order 28
Subdivision (2)—Compensation for property loss 28
22. Minor amendments 28 23. Recovery of assistance paid under Victims of Crime Assistance Act 1996 29 24. New section 123 inserted 29 123. Transitional provisions—Victims of Crime Assistance
(Amendment) Act 2000 30
25. Consequential amendments 30 26. New section 252E inserted in Accident Compensation Act 1985 32
252E. Supreme Court—limitation of jurisdiction 32 27.
New section 132C inserted in Transport Accident Act 1986 32
132C. Supreme Court—limitation of jurisdiction 33
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ENDNOTES 34
ii
Victoria
No. 54 of 2000
Victims of Crime Assistance
(Amendment) Act 2000†
[Assented to 12 September 2000]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The main purposes of this Act are—
(a)
to amend the Victims of Crime Assistance Act 1996 to enable primary victims of acts of violence to be given a monetary award for
significant adverse effects experienced or
suffered by them and to increase the amounts
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 2 that may be awarded to secondary and
related victims in certain circumstances;
(b)
to amend the Sentencing Act 1991 to reform the process by which victims may recover compensation from defendants in criminal proceedings without having to commence civil proceedings.
2. Commencement
(1) Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2) If this Act does not come into operation before 1 January 2001, it comes into operation on that day.
3. Principal Act
In this Act, the Victims of Crime Assistance Act
No. 81/1996. Reprint No. 1
1996 is called the Principal Act.
as at 1 August 1997. Further
amended by Nos 46/1998,
52/1998 and
12/1999.
_______________
Victims of Crime Assistance (Amendment) Act 2000
| s. 4 | Act No. 54/2000 |
PART 2—AMENDMENT OF PRINCIPAL ACT
4. New section 1 substituted
For section 1 of the Principal Act substitute—
"1. Purpose and objectives of Act(1) The purpose of this Act is to provide
assistance to victims of crime.
(2) The objectives of this Act are—
(a) to assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and (b) assistance (including special financial
to pay certain victims of crime financial the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime; and
(c) to allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources.
(3) Awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of
compensation to which victims of crime may
be entitled at common law or otherwise.
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 5 (4) The scheme provided by this Act is intended
to complement other services provided by
government to victims of crime.".
5. Definitions, etc.
(1) In section 3(1) of the Principal Act—
(a) in paragraph (b) of the definition of "injury", after "disorder" insert "or an exacerbation of a mental illness or disorder"; (b) after the definition of "relevant offence" ' "significant adverse effect", in relation to
a victim of an act of violence, includes
any grief, distress, trauma or injury
experienced or suffered by the victim as
a direct result of the act of violence but
does not include any loss of, or damage
to, property;'.
(2) In section 3 of the Principal Act, after sub-section
(2) insert—
'(3) For the purposes of section 8A—
(a)
references in this Act to a primary victim must be construed as including a reference to a person who is a primary victim by virtue of section 8A(1); and
(b)
references in this Act (including the definition of "significant adverse effect" in sub-section (1)) to an act of violence must be construed as if a person who is a primary victim by virtue of section 8A(1) had suffered an injury; and
(c)
references in this Act to an injury must be construed in relation to a person who is a primary victim by virtue of section
Victims of Crime Assistance (Amendment) Act 2000
| s. 6 | Act No. 54/2000 |
| 8A(1) as if the significant adverse effect experienced or suffered by that person were an injury suffered by that person.'. |
6. Assistance available to primary victims
In section 8(1) of the Principal Act, after "$60 000" insert "plus any special financial assistance awarded in accordance with section 8A".
7. New section 8A inserted
After section 8 of the Principal Act insert— "8A. Special financial assistance to primary
victims for significant adverse effects
(1) Without limiting persons who are primary
victims by virtue of section 7, for the
purposes of this section a person is also a
primary victim of an act of violence if he or
she experiences or suffers any significant
adverse effect as a direct result of an act of
violence committed against him or her.
(2) A person may be awarded special financial
assistance by the Tribunal in accordance
with this section if the Tribunal is satisfied
that—
(a)
an act of violence was committed against the person; and
(b)
the person has experienced or suffered a significant adverse effect as a direct result of that act of violence; and
(c)
that act of violence is a category A, B, C or D act of violence for the purposes of this section.
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 7 (3) The amount of special financial assistance
that may be awarded by the Tribunal in
accordance with this section is an amount up
to the level set out in sub-section (4).
(4) For the purposes of sub-section (3) the level
is—
(a) the minimum amount set out in the Table in sub-section (5) in relation to the relevant category of act of violence if the Tribunal is satisfied that the applicant has experienced or suffered any significant adverse effect as a direct result of the act of violence; and (b) an increased amount up to the maximum amount set out in that Table in relation to the relevant category of act of violence if the Tribunal is satisfied that the applicant has suffered any injury as defined in section 3(1) as a direct result of the act of violence. (5) The following Table sets out the minimum and maximum amounts of special financial assistance that may be awarded in
accordance with this section depending on
the category of the act of violence involved:
Category
of act of
violence Minimum amount Maximum amount A $3500 or the $7500 or the higher prescribed higher prescribed amount amount applicable applicable in in prescribed prescribed circumstances circumstances
Victims of Crime Assistance (Amendment) Act 2000
| s. 7 | Act No. 54/2000 |
Category
of act of
violence Minimum amount Maximum amount B $1000 or the $2500 or the higher prescribed higher prescribed amount amount applicable applicable in in prescribed prescribed circumstances circumstances C $500 or the $1000 or the higher prescribed higher prescribed amount amount applicable applicable in in prescribed prescribed circumstances circumstances D $100 or the $500 or the higher higher prescribed prescribed amount amount applicable in applicable in prescribed prescribed circumstances circumstances (6) For the purposes of this section the
regulations may—
(a) specify an act of violence or a class of act of violence as a category A, B, C or D act of violence; and (b) prescribe a higher minimum or specified category of act of violence; and
(c) prescribe circumstances in which the maximum amount is applicable.
(7) The Tribunal may be satisfied on the balance of probabilities that an act of violence of a
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 8 particular category was involved even
though—
(a)
no person has been charged with, or found guilty or convicted of, an act of violence of that category in relation to the injury; or
(b)
a person has been charged with, or found guilty or convicted of, an act of violence of a different category in relation to the injury.".
8. New section 10A inserted
After section 10 of the Principal Act insert—
'10A. Additional assistance available to certain
secondary victims
(1) In exceptional circumstances and within the limit set by section 10(1), there may also be included in the amount awarded to a
person—
(a)
who is a secondary victim by virtue of section 9(1); and
(b)
of whom the primary victim of the act of violence is a family member; and
(c)
who was under the age of 18 years at the time of the commission of the act of violence—
an amount for other expenses actually and
reasonably incurred, or reasonably likely to
be incurred, by the secondary victim to assist
his or her recovery from witnessing the act
of violence.(2) In exceptional circumstances and within the limit set by section 10(1), there may also be included in the amount awarded to a person who is a secondary victim by virtue of
Victims of Crime Assistance (Amendment) Act 2000
| s. 8 | Act No. 54/2000 |
section 9(2) an amount for other expenses
actually and reasonably incurred, or
reasonably likely to be incurred, by the
secondary victim to assist his or her recovery
from becoming aware of the act of violence.(3) In this section "family member", in relation to a person, means—
(a) the spouse, former spouse or de facto spouse of that person; or (b) a person who is or has been a relative of that person; or (c) a child who normally or regularly resides with that person; or (d) another person who is or has been ordinarily a member of the household of that person. (4) For the purposes of the definition of "family member" in sub-section (3)—
(a)
a de facto spouse, in relation to a person, means a person who is living or has lived with another person as if the other person were the spouse of that person although not married to that person; and
(b)
a relative, in relation to a person, means—
(i) a father, mother, grandfather,
grandmother, step-father, step-
mother, father-in-law or mother-
in-law of that person; or(ii) a son, daughter, grandson,
granddaughter, step-son, step-
daughter, son-in-law or daughter-
in-law of that person; or
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 9 (iii) a brother, sister, half-brother, half-
sister, brother-in-law or sister-in-
law of that person; or(iv) an uncle, aunt, uncle-in-law or aunt-in-law of that person; or
(v) a nephew or niece of that person; or
(vi) a cousin of that person—
and includes, in the case of de facto
spouses, a person who would be such a
relative if the de facto spouses weremarried to each other.'.
9. Assistance available to related victims
(1) In section 12 of the Principal Act, at the end of the
section insert—
"(2) Despite anything to the contrary in this Act,
in exceptional circumstances a related victim
may be awarded assistance by the Tribunal
despite that award of assistance causing the
limit set by sub-section (1) to be exceeded.".(2) In section 13 of the Principal Act, after sub-
section (3) insert—
"(4) In exceptional circumstances, there may also
be included in the amount awarded to a
related victim within the limit set by sub-
section (1) an amount for other expenses
actually and reasonably incurred, or
reasonably likely to be incurred, by the
related victim to assist his or her recovery
from the death of the primary victim of theact of violence.".
(3) Section 14 of the Principal Act is repealed.
(4) In section 52 of the Principal Act, paragraph (d) is
repealed.
Victims of Crime Assistance (Amendment) Act 2000
| s. 10 | Act No. 54/2000 |
10. Effect of other entitlements
In section 16 of the Principal Act—
(a) for "whether or not to make an award or the amount of any award to be made" substitute "the amount (if any) to be awarded to an applicant"; and
(b)
in paragraph (a), for "must take into account" substitute "subject to paragraph (ab), must take into account and reduce the amount by the total amount of"; and
(c)
after paragraph (a) insert— "(ab) in the case of special financial
assistance under section 8A or an
amount under section 13(2)(c), must
not take into account any payments
under any insurance policy (including
life and health insurance) or
superannuation scheme that the
applicant has received or has not
received but is entitled to receive, or
would be entitled to receive if he or she
applied for them, for the loss, expense
or other matter for which assistance issought from the Tribunal; and";
(d)
in paragraph (b), for "may take into account" substitute "in all cases but subject to paragraph (ab), may take into account and reduce the amount by the total amount of".
11. New section 27A inserted
After section 27 of the Principal Act insert—
"27A. Information to be given by related victim
applicants
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 12 (1) An applicant who is a related victim must set out in the application details of—
(a) every other person whom the applicant believes may be a related victim of the act of violence; and (b) every other person whom the applicant believes may allege that he or she is a related victim of the act of violence; and (c) any person whom the applicant believes Division 4 of Part 2.
(2) It is sufficient compliance with sub-section
(1) if, in circumstances in which the
applicant knows of the existence of a person
or class of persons of whom he or she would
be required to give details under that sub-
section but does not know their name or
address, the applicant sets out in the
application all matters within his or her
knowledge that may enable the Tribunal to
ascertain their name and address.".
12. Duty to act fairly and expeditiously
In section 32 of the Principal Act, at the end of the
section insert—"(2) The Tribunal must endeavour to hear and
determine together all applications made by
related victims of any one act of violence.(3) The Tribunal is not prevented from hearing
and determining an application only because
there is a civil proceeding, or a proceeding
under Subdivision (1) of Division 2 of Part 4
of the Sentencing Act 1991, pending in a
court relevant to the matter.
Victims of Crime Assistance (Amendment) Act 2000
| s. 13 | Act No. 54/2000 |
(4) Nothing in sub-section (3) limits the power of the Tribunal under section 41(1) to order an adjournment of the consideration of an
application.".
13. Procedure of Tribunal
In section 38(2) of the Principal Act, after
paragraph (a) insert—"(ab) where relevant, the category of act of
violence that it was satisfied under section
8A was involved; and".
14. Power to adjourn
In section 41(2) of the Principal Act—
(a) omit "commence or could";
(b)
after "applicant" insert "and which are reasonably likely to be determined within the next 6 months".
15. New section 42A inserted
After section 42 of the Principal Act insert—
"42A. Inspection of documents
(1) When the office of the Tribunal is open, the applicant in the proceeding and, on payment of the prescribed fee (if any) any other
person, may inspect and obtain a copy of any
document filed in a proceeding in theTribunal.
(2) Despite sub-section (1)—
(a)
a person may not inspect or obtain a copy of a document which the Tribunal has ordered remain confidential;
(b)
a person, not being the applicant in the proceeding, may not, without the leave of the Tribunal, inspect or obtain a
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 16 copy of a document which in the
opinion of a registrar of the Tribunal
ought to remain confidential.(3) The Tribunal may, if satisfied that it is in the public interest to do so, order that—
(a) a document filed in a proceeding in the Tribunal remain confidential; or (b) a person have leave to inspect or obtain a copy of a document filed in a proceeding in the Tribunal. (4) An order under this section may be made on the application of a party or on the Tribunal's own initiative.".
16. Publication of material
(1) In section 43(1) of the Principal Act, for "must not be published except" substitute "be published".
(2) In section 43 of the Principal Act, for sub-section
(3) substitute—
"(3) Except in accordance with an order under
this section, a person must not publish or
cause to be published any material referredto in sub-section (1).
Penalty: 500 penalty units in the case of a
body corporate;
100 penalty units or imprisonment
for 2 years in any other case.".
17. Costs
Section 48(3) of the Principal Act is repealed.
18. Variation of award
(1) In section 60(1) of the Principal Act, after "made"
insert "(including an award of special financial
assistance made in accordance with section 8A)".
Victims of Crime Assistance (Amendment) Act 2000
| s. 19 | Act No. 54/2000 |
(2) In section 60(2) of the Principal Act, for "is still under 18 years of age at the end of that period of 6 years in which case an application may be made
at any time up until he or she turns 18" substitute
"was under 18 years of age when the original
award was made in which case an application maybe made at any time up until he or she turns 24".
19. Minor amendments
(1) Section 6 of the Principal Act is repealed.
(2) Section 30 of the Principal Act is repealed.(3) Sections 73, 74 and 75 of the Principal Act are
repealed.
20. New section 77 inserted
After section 76 of the Principal Act insert—
'77. Transitional provisions (Victims of Crime
Assistance (Amendment) Act 2000)
(1) Subject to this section, the amendments of this Act made by Part 2 of the Victims of Crime Assistance (Amendment) Act 2000
(except sections 15, 16 and 18(2) of that Act)
apply only with respect to acts of violence
occurring on or after 1 July 2000 and
applications and awards made in respect ofsuch acts of violence.
(2) The amendments of this Act made by
sections 15, 16 and 18(2) of the Victims of Crime Assistance (Amendment) Act 2000 apply to applications and awards made under
this Act in respect of acts of violence,
whether occurring before or on or after
1 July 2000.(3) The amendments of this Act made by Part 2
of the Victims of Crime Assistance
(Amendment) Act 2000 apply with respect
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 20 to acts of violence occurring before 1 July 2000 and applications and awards made in respect of such acts of violence where—
(a)
the act of violence involved the commission of an offence referred to in paragraph (b) of the definition of "relevant offence" in section 3(1) of this Act; and
(b)
a primary victim of the act of violence was under the age of 18 years at the time of the commission of that act; and
(c)
the application to the Tribunal is made by or on behalf of a primary victim of a kind referred to in paragraph (b); and
(d) the act of violence occurred—
(i) on or after 1 July 1997; or
(ii) at any time before 1 July 2000 if a person has been (on or after 1 July 1997) committed, or directly
presented, for trial on a charge for
a relevant offence of a kind
referred to in paragraph (a)
committed against the applicant,
irrespective of the outcome of that
process; and
(e) application under the former Act within
the meaning of Schedule 1 or any
corresponding previous enactment in
respect of the injury before thethe applicant had not made an of that Schedule; and
(f)
the application is made in accordance with sub-section (4).
Victims of Crime Assistance (Amendment) Act 2000
| s. 20 | Act No. 54/2000 |
(4) For the purposes of sub-section (3) an
application—
(a) before 1 July 2002 or, where sub-
section (3)(d)(ii) applies, at any time
within 2 years after the person is
committed or presented for trial (if that
period ends on or after 1 July 2002)
and, despite anything to the contrary in
section 29, such an application is not
out of time within the meaning of that
section despite it not being made withinmay be made in any case at any time of violence;
(b)
subject to section 29, may be made in any case at any time after 1 July 2002.
(5) For the purposes of sub-sections (3) and
(4)—
(a)
if an act of violence occurs between two dates, one before and one on or after 1 July 1997, the act of violence occurs on or after 1 July 1997;
(b)
if an offence involved in the act of violence is alleged to have been committed between two dates, and the primary victim of the act of violence was under the age of 18 years at any time during the period between those dates, the primary victim must be taken to have been under the age of 18 years at the time of the commission of that act.
(6) If—
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 20
(a) an application is made under this Act before the commencement of Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 in respect of an act of violence to which the amendments of this Act made by that Part apply by virtue of sub-section (3); and (b) the application had been finally commencement—
the award of assistance made must, on an
application under section 60 made in
accordance with sub-section (7), be varied to
make it consistent with the award that would
have been made in accordance with this Act
as amended by that Part if the application
had not been finally determined before thatcommencement.
(7) Despite anything to the contrary in
section 60, for the purposes of sub-section
(6) an application for variation may be made
at any time when an application could be
made in respect of the act of violence by
virtue of sub-sections (3) and (4)
(disregarding paragraph (e) of sub-section(3) for this purpose).
(8) If—
(a) Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 does not come into operation until after 1 July 2000; and (b) an application is made under this Act before the commencement of that Part in respect of an act of violence that occurred on or after 1 July 2000; and
Victims of Crime Assistance (Amendment) Act 2000
| s. 20 | Act No. 54/2000 |
(c)
the application had not been finally determined as at that commencement—
the application must be dealt with and
determined after that commencement in
accordance with this Act as amended by thatPart.
(9) If—
(a) Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 does not come into operation until after 1 July 2000; and (b) an application is made under this Act before the commencement of that Part in respect of an act of violence that occurred on or after 1 July 2000; and
(c) the application had been finally commencement—
the award of assistance made must, on an application under section 60, be varied to make it consistent with the award that would
have been made as provided by sub-section
(8) if the application had not been finally
determined before that commencement.(10) For the purposes of this section, if an act of
violence occurs between two dates, one
before and one on or after 1 July 2000, the
act of violence occurs on or after 1 July
2000.'.
_______________
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 21
PART 3—AMENDMENT OF SENTENCING ACT 1991
21. New Subdivision (1) inserted in Division 2 of Part 4
Before section 86 of the Sentencing Act 1991
No. 49/1991. Reprint No. 5
insert— as at
1 January
2000. Further'Subdivision (1)—Compensation for pain and amended by
suffering etc. No. 1/2000.
85A. Definitions
(1) In this Subdivision—
"compensation order" means an order
under section 85B(1);
"injury" means—
(a) actual physical bodily harm; or
(b) exacerbation of a mental illness or
mental illness or disorder or an from nervous shock; or
(c) pregnancy; or
(d) grief, distress or trauma or other significant adverse effect; or (e) any combination of matters (c) and (d) arising from an offence—
but does not include injury arising
from loss of or damage to property;
"medical expenses" includes dental,
optometry, physiotherapy, psychology
treatment, hospital and ambulance
expenses;
Victims of Crime Assistance (Amendment) Act 2000
| s. 21 | Act No. 54/2000 |
"sexual offence" means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the
Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence.
(2) References in this Subdivision to the victim
of an offence must be construed having
regard to the definition of "injury" in sub-
section (1).
85B. Compensation order
(1) If a court—
(a) finds a person guilty of an offence; or
(b) convicts a person of an offence—it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay
compensation of such amount as the court
thinks fit for any matter referred to inparagraphs (a) to (d) of sub-section (2).
(2) A compensation order may be made up of
amounts—
(a)
for pain and suffering experienced by the victim as a direct result of the offence;
(b)
for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;
(c)
for some or all of any medical expenses actually and reasonably incurred, or
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 21 reasonably likely to be incurred, by the victim as a direct result of the offence;
(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property. (3) In sub-section (2) "offence" includes, in relation to a person who has been found guilty or convicted of an offence that was
treated by the court as a representative or sample count, any other occurrence of the same offence involved in the course of
conduct of which the count charged wasrepresentative or a sample.
(4) In making a compensation order the court
may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the
compensation remaining unpaid shallbecome due and payable.
85C. Application for compensation order
(1) An application for a compensation order—
(a)
must be made within 12 months after the offender is found guilty, or convicted, of the offence; and
(b) may be made—
(i) by the victim; or
(ii) person other than the offender if
the victim is a child or ison the victim's behalf by any application by reason of injury,
Victims of Crime Assistance (Amendment) Act 2000
| s. 21 | Act No. 54/2000 |
disease, senility, illness or
physical or mental impairment; or
(iii) on the victim's behalf—
(A) if the sentencing court was acourt other than the
Magistrates' Court, by the
Director of Public
Prosecutions; or(B) if the sentencing court was the Magistrates' Court, by the Director of Public
Prosecutions, the informant
or police prosecutor.
(2) Nothing in sub-section (1)(b)(iii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a victim.
85D. Extension of time for making application
(1) A court may, on the application of a person
who wishes to apply for a compensation
order, extend the time within which an
application for a compensation order may be
made if it is of the opinion that it is in the
interests of justice to do so.(2) A court may extend time under sub-section
(1) before or after the time expires and
whether or not an application for an
extension is made before the time expires.
(3) A court must not extend time under sub- section (1) without giving the offender a reasonable opportunity to be heard on the
matter.
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 21
85E. Proceeding on an application
(1) In a proceeding on an application for a
compensation order a party—
(a) may appear personally; or (b) may be represented by—
(i) a legal practitioner; or
(ii) with the leave of the court, by any other person.
(2) A proceeding in a court on an application for a compensation order made by or on behalf of a child or other incapable person must be taken to be a civil proceeding for the purpose
of any provision of an Act or rule of court
relating to—
(a)
the appointment or removal, and the power or authority, of a litigation guardian in a civil proceeding in that court; or
(b)
the administration of money ordered to be paid to a child or such an incapable person—
and any such provision applies in relation to
a proceeding on an application for a
compensation order with any necessarymodifications.
85F. Court must not refuse to hear and
determine application except in certain
circumstances
(1) A court must not refuse to hear and
determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from—
Victims of Crime Assistance (Amendment) Act 2000
| s. 21 | Act No. 54/2000 |
(a)
evidence given at the hearing of the charge; or
(b)
any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or
(c) the available documents—
together with admissions made by or on
behalf of any person in connection with theapplication.
(2) In sub-section (1)(c) "the available
documents" means—
(a) any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or (b) the depositions taken at the committal proceeding; or (c) any written statements or admissions proceeding; or
(d)
any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it.
85G. Evidence
(1) On an application for a compensation
order—
(a)
the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 21
(b) the victim, offender or other person examined and re-examined; and
(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
(d) production of a document under the
the finding may be proved by appears; and
(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.
(2) A court must not make a compensation order
without giving the offender a reasonable
opportunity to be heard on the application
for the order.
85H. Court may take financial circumstances of offender into account
(1) If a court decides to make a compensation
order, it may, in determining the amount and
method of payment of the compensation,
take into account, as far as practicable, the
financial circumstances of the offender and
the nature of the burden that its payment will
impose.
(2) A court is not prevented from making a
compensation order only because it has been
unable to find out the financial
circumstances of the offender.
Victims of Crime Assistance (Amendment) Act 2000
| s. 21 | Act No. 54/2000 |
85I. Court must reduce compensation by
amount of any award under Victims of
Crime Assistance Act 1996If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.
85J. Court to give reasons for its decision
(1) On deciding to grant or refuse an application for a compensation order or to refuse to hear and determine such an application, the court must—
(a) state in writing the reasons for its decision; and (b) cause those reasons to be entered in the records of the court. (2) The failure of a court to comply with sub- section (1) does not invalidate the decision made by it on the application.
85K. Costs of proceeding
Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party
to a proceeding under this Subdivision must
bear their own costs of the proceeding unlessthe court otherwise determines.
85L. Right to bring civil proceedings unaffected
Nothing in this Subdivision takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 22 recovery of compensation under this
Subdivision.
85M. Enforcement of order
Subject to section 30 of the Confiscation Act 1997, a compensation order, including costs ordered to be paid by the offender on the proceeding for that order, must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made.
Subdivision (2)—Compensation for property
loss.'.
22. Minor amendments
(1) In the definition of "victim" in section 3(1) of the Sentencing Act 1991, after "damage" (where first occurring) insert "(including grief, distress,
trauma or other significant adverse effect)".
(2) In section 86 of the Sentencing Act 1991—
(a) in sub-section (1) omit—
(i) "or pain and suffering"; and
(ii) "or for the pain and suffering";
(b)
in sub-section (5)(a), omit "(and, in the case of an application for compensation for pain and suffering, no later than 6 months)";
(c) sub-section (6A) is repealed;
(d)
in sub-section (9)(d), omit ", including any medical report attached to it";
Victims of Crime Assistance (Amendment) Act 2000
s. 23
| s. 24 | Act No. 54/2000 |
(e) sub-sections (9A), (9B) and (9C) are repealed; (f) in sub-section (10), omit "to property or to recover damages for pain and suffering". 23. Recovery of assistance paid under Victims of Crime Assistance Act 1996
(1) In section 87A(1)(b) of the Sentencing Act
1991—
(a) after "made" insert "or varied";
(b) after "injury" insert "(including a significant adverse effect within the meaning of that Act that in accordance with that Act is required to be regarded as an injury)".
(2) In section 87A of the Sentencing Act 1991, for
sub-section (2) substitute—
"(2) An application may only be made under sub-
section (1) within the period of 6 months
after—
(a) the day on which the person was found guilty or convicted of the relevant offence; or (b) assistance was made or varied under the
the day on which the award of 1996—
whichever is the later.".
(3) Section 87A(8) of the Sentencing Act 1991 is
repealed.
24. New section 123 inserted
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 25 After section 122 of the Sentencing Act 1991 insert—
"123. Transitional provisions—Victims of Crime Assistance (Amendment) Act 2000
(1) The amendment of this Act made by a
provision of section 21 or 22 of the Victims
of Crime Assistance (Amendment) Act
2000 applies to an application under
section 86 of this Act for compensation for
pain and suffering made before the
commencement of that provision but heard
or determined after that commencement,
irrespective of when the offence was
committed or the finding of guilt made or
conviction recorded.(2) An application to which sub-section (1)
applies must be heard and determined as if it
were an application made under
Subdivision (1) of Division 2 of Part 4.
(3) Subject to Subdivision (1) of Division 2 of
Part 4, an application may be made under that Subdivision after the commencement of section 21 of the Victims of Crime Assistance (Amendment) Act 2000, irrespective of whether the offence was committed or the finding was made or the conviction was recorded before or after that commencement.
(4) The amendment of this Act made by a
provision of section 23 of the Victims of applies only to an application under section 87A(1) of this Act made after the commencement of that provision.".
25. Consequential amendments
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000
| No. 56/1989. | (1) In section 191 of the Children and Young |
| Reprint No. 5 | Persons Act 1989— |
| as at 1 July |
| 1998. | (a) | for "section 86(2)" substitute "sections 85H(1) and 86(2)"; |
| (b) | after "must" insert "and as if in section 85C(1)(b)(iii)(B) the reference to the Magistrates' Court were a reference to the Criminal Division". |
| No. 108/1997. | (2) In sections 33(6), 59(5) and 64(4) of the |
| Reprint No. 1 | |
| as at 1 July | Confiscation Act 1997, for "86" substitute |
| 1998. | "Division 2 of Part 4". |
| No. 10191. | (3) In section 138B(1) of the Accident |
| Reprint No. 9 | |
| as at 30 June | Compensation Act 1985— |
| 1999. |
(a)
for "section 86" substitute "Subdivision (1) of Division 2 of Part 4";
(b)
for "order an offender to pay compensation for pain and suffering if the compensation would be for pain and suffering to a person" substitute "make a compensation order within the meaning of that Subdivision if the compensation would be for a matter".
(4) In section 138B(2) of the Accident
Compensation Act 1985, for "section 86"
substitute "Subdivision (1) of Division 2 ofPart 4".
| No. 50/1993. | (5) In sections 7(9) and 59B(1A) of the Accident |
| Reprint No. 5 | |
| as at 30 June | Compensation (WorkCover Insurance) Act |
| 1999. | 1993, for "pain and suffering awarded under section 86" substitute "a matter for which compensation is awarded under Subdivision (1) of Division 2 of Part 4". |
Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 s. 26
(6) In section 94(2)(c) of the Transport Accident Act 1986, for "pain and suffering awarded under
No. 111/1986.
Reprint No. 6
as at
section 86" substitute "a matter for which 26 August compensation is awarded under Subdivision (1) of 1999. Division 2 of Part 4".
(7) In section 107A(1) of the Transport Accident
Act 1986—
(a) for "section 86" substitute "Subdivision (1) of Division 2 of Part 4"; (b) for "order an offender to pay compensation for pain and suffering if the compensation would be for pain and suffering to a person" substitute "make a compensation order within the meaning of that Subdivision if the compensation would be for a matter".
(8) In section 107A(2) of the Transport Accident
Act 1986, for "section 86" substitute
"Subdivision (1) of Division 2 of Part 4".
26. New section 252E inserted in Accident Compensation Act 1985
In the Accident Compensation Act 1985, after section 252D insert—
"252E. Supreme Court—limitation of jurisdiction
It is the intention of section 138B, as
amended by section 25 of the Victims of
Crime Assistance (Amendment) Act 2000,
to alter or vary section 85 of the
Constitution Act 1975.".
27. New section 132C inserted in Transport Accident Act 1986
In the Transport Accident Act 1986, after section 132B insert—
Victims of Crime Assistance (Amendment) Act 2000
| s. 27 | Act No. 54/2000 |
"132C. Supreme Court—limitation of jurisdiction
It is the intention of section 107A, as
amended by section 25 of the Victims of
Crime Assistance (Amendment) Act 2000,
to alter or vary section 85 of theConstitution Act 1975.".
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Victims of Crime Assistance (Amendment) Act 2000
Act No. 54/2000 Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 26 May 2000
Legislative Council: 29 August 2000
The long title for the Bill for this Act was "to amend the Victims of
Crime Assistance Act 1996, the Sentencing Act 1991, the Children
and Young Persons Act 1989, the Confiscation Act 1997, the Accident
Compensation Act 1985, the Accident Compensation (WorkCover
Insurance) Act 1993 and the Transport Accident Act 1986 and forother purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 26 May 2000
Legislative Council: 29 August 2000
Absolute majorities:
Legislative Assembly: 17 August 2000
Legislative Council: 5 September 2000
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