Victims Compensation (Amendment) Act 1989 (NSW)

VICTIMS COMPENSATION (AMENDMENT) ACT 1989 No. 217

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title

Z	CoEnmencement
3.	Amendment of Victims Compensation Act 1987 No. 237

SCHEDULE i * AMENDMENTS RELATING TO THE IMPOSITION OF

COMPENSATION LEVIES

SCHEDULE 2 - AMENDMENTS RELATING TO RECOVERY

PROCEEDINGS

SCHEDULE 3 - MISCELLANEOUS AMENDMENTS

VICTIMS COMPENSATION (AMENDMENT) ACT 1989 No. 217

NEW SOUTH WALES

Act No. 217,1989

An Act to amend the Victims Compensation Act 1987 so as to provide for the imposition of compensation levies on persons convicted of certain offences, for the recovery of money from certain persons and for other matters. [Assented to 21 December 1989]

Victims Compensation (Amendment) 1989

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Victims Compensation

(Amendment) Act 1989.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Mctims Compensation Act 1987 No. 237

3. The Victims Compensation Act 1987 is amended as set out in

Schedules 1 - 3 .

SCHEDULE 1 - AMENDMENTS RELATING TO THE

IMPOSITION OF COMPENSATION LEVIES

(Sec. 3)

(1)	Section 3 (Definitions):

Insert, in alphabetical order, in section 3 (1):

"Compensation Fund" means the Victims Compensation

Fund referred to in section 65F5

"compensation levy" means a levy referred to in section

65c,

(2)	Section 27 (Secretary of Attorney General’s Department to pay compensation):

Omit section 27 (4), insert instead:

(4) An amount payable under this section is to be paid out of the Compensation Fund or, if sufficient money is not available in that Fund, out of the Consolidated Fund which is, to the extent necessary, appropriated accordingly.

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(3)	Parts 6 a , 6B:

After Part 6, insert

PART 6 a - COMPENSATION LEVIES

Definition

65a.	(1) In this Part, a reference to a conviction includes

a reference to:

(a)	an order made under section 556a of the Crimes Act 1900; and
(b)	an order made under section 33 (1) (b) - (g) of the Children (Criminal Proceedings) Act 1987.

(2) In this Part, a reference to a court includes a reference

to a justice.

Application of Part

65b.	(1) This Part applies to all offences that are:
(a)	punishable by imprisonment or penal servitude, whether or not they are also punishable otherwise than by imprisonment or penal servitude; and
(b)	dealt with before the Supreme Court, the District Court, a Local Court or the Children’s Court.

(2)	This Part does not apply to an offence merely because

it is taken into account (as referred to in section 447B of the Crimes Act 1900 or section 21 of the Criminal Procedure Act 1986) on the sentence of a person in respect of some other offence, whether or not that other offence is an offence to which this Part applies.

Imposition of compensation levy

65c. (1) A person who is convicted of an offence to which this Part applies is, by virtue of the conviction, liable to pay to the Crown a levy of.

(a)	$50, if the person is convicted on indictment; or
(b)	$20, if the person is convicted otherwise than on indictment.

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(2) Such a levy is in addition to, and does not form part of, any pecuniary penalty or order for payment of compensation imposed in respect of the same offence.

(3) Any money paid to the Crown in respect of an offence to which this Part applies is to be applied towards the discharge of such a levy before it is applied to the discharge of any pecuniary penalty or order for payment of compensation imposed in respect of the same offence.

Payment and enforcement of compensation levy

65D. (1) The regulations may make provision for the manner in which compensation levies are to be paid and enforced.

(2)	Without limiting the generality of subsection (1), the

regulations may make provision fon

(a)	the attachment of the prison earnings of convicted persons; and
(b)	the imposition of community service orders on persons who fail to pay compensation levies.

Effect of appeal proceedings

65E.	(1) The commencement of any proceedings by way

of appeal against, or review of, a conviction in respect of which a compensation levy has been imposed on a person stays the liability of the person to pay the levy.

(2) The setting aside of any such conviction annuls that liability.

(3) The dismissal of any such proceedings removes the stay of liability.

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PART 6 b - THE VICTIMS COMPENSATION FUND

Establishment of the Compensation Fund

65F. (1) There is to be a Victims Compensation Fund. (2) The Compensation Fund is to form part of the

Attorney General’s Department Account in the Special

Deposits Account in the Treasury.

The corporation sole established under section 4 of

the Suitors’ Fund Act 1951 has the control and management

of the Compensation Fund.

(3)

(4) Interest at a rate to be determined by the Treasurer is to be allowed on the amount standing to the credit of the Compensation Fund from time to time.

The corporation sole established under section 4 of the Suitors’ Fund Act 1951 has, in relation to the assets of the Compensation Fund, the investment powers set out in Part 1 of Schedule 4 to the Public Authorities (Financial Arrangements) Act 1987.

(5)

Payments into the Compensation Fund

65g .	There are to be paid into the Compensation Fund;
(a)	all proceeds or profits confiscated under the Crimes (Confiscation of Profits) Act 1985 or the Confiscation of Proceeds of Crime Act 1989;
(b)	all money recovered under Part 5 or Part 6 a ;
(c)	all money advanced to the Fund by the Treasurer, or appropriated by Parliament, for the purposes of this Act; and
(d)	all other money required by or under this or any other Act to be paid into the Fund.

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Payments from the Compensation Fund

65h.	There are to be paid from the Compensation Fund:
(a)	all payments of compensation and costs under this Act;
(b)	all expenses incurred by the Tribunal in the exercise of its functions under this Act; and
(c)	all expenses incurred in the administration of the Compensation Fund.

SCHEDULE 2 - AMENDMENTS RELATING TO RECOVERY

PROCEEDINGS

(Sec. 3)

(1) Part 5, heading:

After "OFFENDERS", insert "AND FRAUDULENT

CLAIMANTS".

(2) Part 5, Division 1, heading:

Before section 42, insert

Division 1 - Recovery from offenders

(3) Section 42 (Definitions):

(a)	Omit "In this Part", insert instead "In this Division".
(b)	Omit the definition of "recovery action", insert instead:

"notice of intention to show cause" means a notice

referred to in section 44;

"notice to show cause" means a notice referred to in

section 43;

"recovery action" means an action commenced under

section 43;

(c)	At the end of section 42, insert

(2) In this Division, a reference to a conviction includes a reference to:

(a)	an order made under section 556a of the Crimes Act 1900; and

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(b)	an order made under section 33 (1) (b) - (g) of the Children (Criminal Proceedings) Act 1987.

(4) Sections 43 - 45;

Omit the sections, insert instead;

Registrar may commence recovery action

43.

(1)

If the Registrar is of the opinion that a person has

been convicted of an offence arising from substantially the same facts as those constituting an act of violence in respect of which an award of compensation has been made, the Registrar may, by a notice to show cause served on the person so convicted, commence an action before the Tribunal, on behalf of the Crown, for the recovery of any amount paid or to be paid under the award.

(2) A notice to show cause is a notice inviting the person to whom it is given to show cause to the Tribunal why a determination for restitution should not be made against the person.

(3) An action may not be commenced under this section:

(a)

if civil proceedings have been commenced, or are being maintained, against the person, by or on behalf of the Crown, in respect of an action for damages arising from substantially the same facts as those on which the relevant award of compensation was based; or

(b)

if 2 years or more have elapsed since:

(i)	the date on which the relevant award of compensation was made; or

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(ii) the date on which the person was convicted of the relevant offence,

whichever is the later.

(4) A notice to show cause must be in the prescribed form and must include the following particulars:

(a)	the facts on which the award of compensation was based;
(b)	the date on which the award of compensation was made;
(c)	the amount paid or to be paid under the award;
(d)	the offence pursuant to which the notice to show cause was given;
(e)	the date on which it is alleged that the person was convicted of the offence;
(f)	such other particulars as the regulations may require.

(5)	A copy of the notice must be filed in the registry of the

Tribunal

Notice of intention to show cause

(1) The defendant in a recovery action may, at any time before the action is determined by the Tribunal, file in the offices of the Tribunal a notice of intention to show cause.

44.

(2)	A notice of intention to show cause must be in the

prescribed form and must include the grounds of the defence

on which the defendant intends to rely.

Proceedings on a recovery action

45. (1) A recovery action may not be determined before the expiration of 2 months after service on the defendant of the notice to show cause by which the action has been commenced.

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(2) In any recovery action in which the defendant has not filed a notice of intention to show cause, the Tribunal may determine the action without conducting a hearing.

(3) In any recovery action in which the defendant has filed a notice of intention to show cause, the Tribunal must conduct a hearing.

(4) Subject to the rules of the Tribunal, a recovery action must be determined;

(a)	in accordance with the rules of law governing the admission of evidence; and
(b)	in accordance with the practice and procedure of Local Courts exercising civil jurisdiction,

in the same way as an action commenced by way of an ordinary statement of claim (within the meaning of the Local Courts (Civil Claims) Act 1970) must be determined by a Local Court

(5) Section 46 (Evidentiary matters):

(a)	From section 46 (2) (a), omit "or".
(b)	At the end of section 46 (2) (b), insert

(c )

in any other proceedings (whether civil or criminal) arising from substantially the same facts as those on which the award of compensation was based,

(6) Section 47:

Omit the section, insert instead;

Determinations for restitution

47. (1) If the Tribunal is satisfied:

(a)	that notice to showcause has been duly served on the defendant; and

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(b)	that the defendant has been convicted of an offence arising from substantially the same facts as those constituting an act of violence in respect of which an award of compensation has been made,

the Tribunal may make a determination for restitution

against the defendant

(2) The amount ordered to be paid under a determination for restitution is to be fixed having regard to:

(a)	the financial means of the defendant;
(b)	the Tribunal’s assessment of the culpability of the defendant in relation to the act of violence on which the award of compensation was based;
(c)	any arrangement agreed on between the Registrar and the defendant with respect to the payment of such an amount; and
(d)	such other matters as are, in the opinion of the Tribunal, relevant to the determination.

(3) For the purpose of enabling the Registrar and the defendant to come to an arrangement referred to in subsection (2) (c), the Tribunal may adjourn proceedings for such period (not exceeding 1 month on any 1 occasion) as it considers appropriate.

(4) The maximum amount that may be ordered to be paid under a determination for restitution is the amount that has been paid to a victim under the award of compensation to which the determination relates.

(7) Section 47a:

After section 47, insert

Witnesses’ expenses

47a.	a person (other than an officer or temporary

employee within the meaning of the Public Sector Management Act 1988) who is required to attend or to give evidence at a hearing under this Part is entitled to be paid

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such allowances and expenses as may be prescribed by the

rules of the Tribunal.

(8) Section 48 (Entry of judgment):

(a)	From section 48 (1) omit "deemed", insert instead "taken".
(b)	After section 48 (2), insert

(3)	The prescribed documents may not be filed until

after the expiration of the time within which an appeal may

be lodged under section 49.

(9) Section 49 (Appeals):

At the end of section 49, insert

(2) An appeal may not be lodged under this section if 1 month or more has elapsed since the date on which the determination for restitution was made.

(10) Sections 49a, 49B:

After section 49, insert

Determinations for restitution etc. may be set aside

49a.	(1) The Tribunal, on sufficient cause shown, may,

by order, set aside a determination for restitution made by the Tribunal in a recovery action in which the defendant did not file a notice of intention to show cause.

(2) On the filing of a copy of such an order in the office or registry of the court whose judgment the determination for restitution is to be taken to be, that judgment is to be taken to have been set aside.

(3) If the Tribunal makes an order under this section, the defendant is entitled to be paid such amount, by way of costs in relation to the setting aside of the determination for restitution, as may be prescribed by the rules of the Tribunal.

Stay of execution

49b. a court whose judgment a determination for

restitution is to be taken to be may, on the application of the

person against whom the determination was made, grant a

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stay of execution of the judgment for such period of time as it considers appropriate to enable the applicant to have the judgment set aside.

(11) Part 5, Division 2:

At the end of Part 5, insert:

Division 2 - Recovery from fraudulent claimants

Definitions

51a. In this Division:

"award of compensation" means an award of

compensation under Part 3;

"determination for restitution" means a determination

for restitution under section 51B.

Determinations for restitution

51B.	(1) If a person is convicted o£
(a)	an offence of obtaining an award of compensation by means of fraud or false pretence or by means of a wilfuUy false or wilfully misleading statement; or
(b)	an offence, in relation to the obtaining of an award of compensation, of a kind prescribed by the regulations,

the Tribunal may, on its own motion, make a determination for restitution for such amount as has been paid to the person under the award.

(2) Such a determination may not be made if 2 years or more have elapsed since the date on which the person was convicted of the relevant offence.

Entry of judgment

51C.	(1) A determination for restitution is, on the filing

of the prescribed documents in the office or registryof a court having jurisdiction to order payment of the amount specified in the determination, to be taken to be a judgment of the court for the amount so specified.

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(2) The prescribed documents are:

(a)	a copy of the determination certified by the Registrar to be a true copy, and
(b)	an affidavit by the Registrar specifying the amount unpaid under the determination.

SCHEDULE 3 - MISCELLANEOUS AMENDMENTS

(Sec. 3)

(1) Section 3 (Definitions):

(a)	Insert, in alphabetical order, in section 3 (1):

"act of violence" means an act or series of related acts (as referred to in subsection (3)), whether committed by one or more persons:

(a)	that has apparently occurred in the course of the commission of an offence; and
(b)	that has resulted in injury or death to one or more persons;

"costs" includes allowances and expenses;

"Registrar' means Registrar of the Tribunal;

(b)	Omit the definition of "close relative" from section 3 (1).
(c)	After section 3 (2), insert

(3) An act is related to another act i£

(a)	both of the acts were committed against the same person; and
(b)	in the opinion of the Tribunal, both of the acts were committed at the same time or were, for any other reason, related to each other.

(2) Section 9 (Registrar and other staff of the Tribunal):

Omit "Public Service Act 1979", insert instead "Public Sector

Management Act 1988".

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(3) Section 9a;

After section 9, insert

Tribunal may be assisted by Crown Solicitor

9 a. The Tribunal may be assisted by the Crown Solicitor in the exercise of its jurisdiction under this Act

(4) Section 10 (Definitions);

(a)	Omit the definition of "act of violence" from section 10(1).
(b)	After the definition of "award of compensation" in section 10 (1), insert

"close relative", in relation to a deceased victim of an act of violence, means a person who, at the time the act of violence occurred:

(a)	was the deceased victim’s spouse or was a person who was living with the deceased victim as the deceased victim’s spouse;
(b)	was a parent, guardian, step-parent or grandparent of the deceased victim; or
(c)	was a child, step-child or grandchild of the deceased victim or was some other child of whom the deceased victim was a guardian;

(c)	Omit section 10 (2).

(5) Section 15 (Certain persons not eligible to receive

compensation);

(a)

Omit section 15 (2), insert instead:

(2) A secondary victim of an act of violence is not

entitled to claim compensation under this Part before 1

year has elapsed since the act of violence occurred unless:

(a)	a notice of the secondary victim’s intention to claim compensation has been served (in accordance with the rules of the Tribunal) oiu

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(i) the primary victim through whom he or she is claiming; or

(ii) at least one of the close relatives of the deceased victim through whom he or she is claiming; and

(b)	no application has been made by or on behalf of the primary victim, or by or on behalf of a close relative of the deceased victim, during the period of 3 months next following the date on which the notice was so served.

(2a) Notwithstanding subsection (2):

(a)	a secondary victim who is claiming through a primary victim is entitled to claim compensation under this Part within the period of 1 year referred to in that subsection if an application for compensation made by or on behalf of the primary victim has been finally disposed of; and
(b)	a secondary victim who is claiming through a deceased victim is entitled to claim compensation under this Part within the period of 1 year referred to in that subsection if an application for compensation made by a close relative of the deceased victim has been finally disposed of.

(b)	Omit section 15 (4), insert instead:

(4)	Nothing in this section prevents a person from being

eligible to receive compensation under this Part in respect of the same act of violence in one or more of the capacities of primary victim, secondary victim, close relative of a deceased victim or law enforcement victim.

(c)	From section 15 (5) omit "A person", insert instead "Subject to subsection (4), a person".
(d)	From section 15 (6) omit "compensation under the Transport Accidents Compensation Act 1987", insert instead "damages in accordance with the Motor Accidents Act 1988".

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(6) Section 16 (Maximum compensation payable):

Section 16 (1):

After "Part", insert "(whether in one or more capacities)".

(7) Sections 17 (2), (3), 27 (1), 48 (2), 67 (1), (2):

Omit "of the Tribunal" wherever occurring.

(8) Section 18 (Consideration of applications):

Omit section 18 (2), insert instead:

(2) For the purpose of considering an application, the Tribunal may conduct a hearing under Part 4.

(9) Section 18A;

After section 18, insert

Medical examinations

18a. (1) The Tribunal may require an applicant for compensation to undergo an examination (not being an examination that is unreasonable, unnecessarily repetitious or dangerous):

(a)	by a duly qualified medical practitioner or duly qualified psychologist specified by the Tribunal; or
(b)	by a duly qualified medical practititioner or duly qualified psychologist belonging to a class of medical practitioners or class of psychologists so specified.

(2) The costs of any such examination are to be paid for out of the Compensation Fund.

(10) Section 20 (Reasons for not making a ^ r d or for reducing

amount of compensation payable):

(a)	From section 20 (1) (d), omit "the police force in coimection with", insert instead "any person or body duly engaged in the investigation of the act of violence or in".

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(b)	After section 20 (3) (a), insert: (al) whether the injury sustained by the victim was

reported to a member of the Police Force within a

reasonable time; and

(11) Section 24a:

After section 24, insert:

Costs

24a.	(1) An applicant for compensation is entitled to be

paid his or her costs in respect of the application and of the proceedings on the application (whether or not a hearing is conducted in respect of the proceedings) in accordance with such scale of costs as may be prescribed by the rules of the Tribunal.

(2) An applicant may, if the Tribunal so directs, be awarded costs under this section even if the application for compensation is dismissed.

(3) Notwithstanding any Act or law to the contrary, but subject to any order of the Tribunal, a legal practitioner is not entitled to charge or recover, by way of costs in respect of an application for compensation or of the proceedings on such an application, any amount in excess of the amount payable in accordance with the scale of costs referred to in subsection

( 1 ).

(4) A provision of any agreement (whether in writing or not and whether entered into l^fore or after the commencement of this section):

(a)	under which the operation of subsection (3) is excluded, modified or restricted; or
(b)	which has the effect of excluding, modifying or restricting the operation of subsection (3),

is void.

(5) An award of costs under this section may be made payable:

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(a)	to the applicant; or
(b)

to any other person for the benefit of the applicant.

(12) Section 25:

Omit the section, insert instead: proceedings

25. Notwithstanding any rule of law to the contrary

(a)	an application for compensation;
(b)	any documents supporting the application (whether or not furnished when the application is lodged); and
(c)	any transcript of evidence given to the Tribunal in proceedings on the application,

are not admissible in evidence against any person in criminal proceedings (other than criminal proceedings in which the applicant is the accused) arising from substantially the same facts as those on which the application is based.

(13) Section 29 (Appeals to the District Court):

(a)	From section 29 (2) (a) omit "2 months", insert instead "1 month".
(b)	After section 29 (4), insert

(5)	Subject to any order of the District Court to the

contrary, the institution of an appeal under this section suspends the application of section 27, in relation to the payment of compensation, pending the determination of the appeal

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(14) Section 33 (Presentation of cases):

After "may", insert", by leave of the Tribunal".

(15) Section 34 (Tribunal may compel attendance of witnesses etc.):

After section 34 (2), insert

(3) The functions conferred on the Tribunal by subsection (1) (a) may be exercised on behalf of the Tribunal by the Registrar.

(16) Section 37 (Witnesses’ expenses):

Omit "Public Service Act 1979", insert instead "Public Sector

Management Act 1988".

(17) Section 41 (Costs):

Omit the sectioa

(18) Section 52 (Definitions):

After the definition of "aggrieved person", insert

"close relative", in relation to a person who has died as

a consequence of an offence, means a person who,

at the time the offence occurred:

(a)	was the person’s spouse or was a person who was hving with the person as the person’s spouse;
(b)	was a parent, guardian, step-parent or grandparent of the person; or
(c)	was a child, step-child or grandchild of the person or was some other child of whom the person was a guardian;

(19) Section 71a;

After section 71, insert

Secretary may delegate certain functions

71a. The Secretary of the Attorney General’s

Department may delegate to any Deputy Secretary or

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Assistant Secretary of that Department any of the functions (other than this power of delegation) conferred or imposed on the Secretary by or under this Act

(20) Section 75 (Rules):

(a)	From section 75 (a) omit "and" where secondly occurring.
(b)	At the end of section 75 (b), insert

; and

(c)	the service of documents under this Act

(21) Section 77:

After section 76, insert

Savings, transitional and other provisions

77. Schedule 2 has effect

(22) Schedule 1 (Provisions relating to the members of the Tribunal): From clause 3 omit "Public Service Act 1979", insert instead "Public Sector Management Act 1988".

(23) Schedule 2:

After Schedule 1, insert

SCHEDULE 2 - SAVINGS, TRANSITIONAL AND OTHER

OTHER PROVISIONS

(Sec. 77)

Part 1 - Preliminary

Regulations

1. (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

Victims Compensation (Amendment) Act 1989.

(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

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(3)	To the extent to which such a provision takes effect on

a date that is earlier than the date of its publication in the

Gazette, the provision does not operate so as:

(a)	to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication; or
(b)	to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.

Part 2 - Provisions consequent on the enactment of the

Victims Compensation (Amendment) Act 1989

Definitions

2. In this Part

"the amending Act" means the Victims Compensation (Amendment) Act 1989.

Compensation levies

Part 6a does not apply to or in respect of an offence that

was committed before the commencement of that Part

Recovery proceedings

(1) Any proceedings commenced under Part 5 before the commencement of Schedule 2 to the amending Act, but not determined before that commencement, are to continue to be dealt with under that Part as if the amendments made by that Schedule had not been made.

(2) Section 51B appUes to and in respect of a person convicted of an offence referred to in that section before the commencement of that section in the same way as it applies to and in respect of a person convicted of such an offence on or after that commencement

Applications for compensation

Any application for compensation under Part 3 made before the commencement of the amendments made to

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section 15 by the amending Act is to be dealt with as if those

amendments had not been made.

Appeals from certain determinations

Section 29 (2) continues to apply to a determination of the Tribunal made before the commencement of the amendment to that subsection made by the amending Act as if that amendment had not been made.

Scales of costs

Any rules of the Tribunal that, immediately before the repeal of section 41 by the amending Act, prescribed a scale of costs for the purposes of that section are to be taken (until they are amended or repealed) to prescribe a scale of costs for the purposes of section 24a.

Money recovered under the Criminal Injuries Compensation

Act 1967

Any money that (pursuant to clause 5 of Schedule 2 to the Miscellaneous Acts (Victims Compensation) Repeal and Amendment Act 1987) is recovered under section 7 of the Criminal Injuries Compensation Act 1967 after the commencement of Part 6B is to be paid into the Compensation Fund.

[Minister's second reading speech made in - Legislative Assembly on 25 July 1989 Legislative Council on 7 December 1989]