Victims Support and Rehabilitation Act 1996 (NSW)
An Act to provide support and rehabilitation for victims of violence; and to repeal the Victims Compensation Act 1987.
This Act is the Victims Support and Rehabilitation Act 1996.
This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).
Clauses 1, 2 and 3 of Schedule 3 commence on the date of assent to this Act.
The objects of this Act are as follows:
(a) to provide support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme,
(b) to enable compensation paid under the statutory compensation scheme to be recovered from persons found guilty of the crimes giving rise to the award of compensation,
(c) to impose a levy on persons found guilty of crimes for the purpose of funding the statutory compensation scheme,
(d) to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime.
Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.
Notes in the text of this Act do not form part of this Act.
In this Act,
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.
For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary).
Except as provided by subsections (3A) and (3B), a
(a) they were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor:
(i) they were committed at approximately the same time, or
(ii) they were committed over a period of time by the same person or group of persons, or
(iii) they were, for any other reason, related to each other.
An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.
An act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made.
For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.
The following persons are eligible for statutory compensation:
(a) a primary victim of an act of violence,
(b) a secondary victim of an act of violence,
(c) a family victim of an act of violence.
A
A primary victim of an act of violence extends to a person who receives a compensable injury, or dies, as a direct result of:
(a) trying to prevent another person from committing that act, or
(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or
(c) trying to arrest another person who is committing, or who has just committed, that act.
A
A secondary victim of an act of violence extends to a person who receives a compensable injury as a direct result of subsequently becoming aware of the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act, but only if:
(a) the person is the parent or guardian of the primary victim of that act, and
(b) the primary victim was under the age of 18 years at the time of that act, and
(c) the person did not commit that act.
The person is taken, for the purposes of this Act, to have witnessed the act of violence.
For the purposes of this section, a primary victim does not include a person who is a primary victim only because of the operation of section 7 (2).
A
It is immaterial whether or not the person suffers a compensable injury in connection with the act of violence or death.
A
(a) the victim’s spouse, or
(b) the victim’s de facto partner who has cohabited with the victim for at least 2 years, or
(c) a parent, guardian or step-parent of the victim, or
(d) a child or step-child of the victim or some other child of whom the victim is the guardian, or
(e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim.
“De facto partner” is defined in section 21C of the Interpretation Act 1987.
The schedule of compensable injuries is set out in Schedule 1.
The schedule specifies those injuries that are
The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts.
This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries.
An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries).
In the absence of an election, the person determining the application is to make the election.
See injury described in Schedule 1 as sexual assault.
The regulations may amend Schedule 1 by substituting or amending the schedule of compensable injuries.
If more than one compensable injury is received by an eligible victim, the schedule of compensable injuries may exclude the payment of compensation, or discount the rates of compensation payable, for some of those injuries.
See paragraph 3 of Schedule 1.
The schedule of compensable injuries may make provision for compensable injuries of a kind not specifically described in the schedule and for the standard amount of compensation payable for such an injury.
See paragraph 8 of Schedule 1.
The schedule may contain provisions relating to the application of the schedule (including provisions relating to the interpretation of the schedule, provisions relating to establishing whether an injury is a compensable injury and provisions of a transitional nature consequent on the amendment of Schedule 1).
The statutory compensation for which a primary victim of an act of violence is eligible comprises:
(a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and
(b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury.
A primary victim who dies ceases to be eligible for statutory compensation, but a family victim may then become eligible for statutory compensation under this Act. Any pending application for compensation made by or on behalf of the primary victim does not survive the death of the primary victim.
Statutory compensation under this section is not payable for financial loss to the extent that Victims Assistance has been awarded for that loss.
The statutory compensation for which a primary victim is eligible includes Victims Assistance.
Victims Assistance is payable to a primary victim who, due to the threshold applying under section 20, is precluded from being awarded statutory compensation referred to in section 14. Victims Assistance is also payable to a primary victim who is not precluded from being awarded statutory compensation referred to in that section. However, see section 14 (3).
Victims Assistance is not payable to a person under this section unless the total amount payable to the person as compensation for the actual expenses concerned is at least:
(a) subject to paragraph (b)—$200, or
(b) such other amount as is prescribed by the regulations.
The regulations may make provision for or with respect to any of the following:
(a) the maximum amount that a person may be awarded under this section in respect of a particular kind of actual expense,
(b) the particular kinds of actual expenses for which a person may or may not be compensated under this section.
The total amount that a primary victim may be awarded under this section in respect of an act of violence is not to exceed:
(a) subject to paragraph (b)—$1,500, or
(b) such other amount as is prescribed by the regulations.
Victims Assistance is not payable to a primary victim who has already been awarded statutory compensation to which section 14 applies in respect of the same act of violence.
Victims Assistance is not payable to a primary victim to the extent that the primary victim has received, or is entitled to receive, payment for that loss under any insurance or agreement or under any other Act or law.
A primary victim who dies ceases to be eligible for Victims Assistance. Any pending application for Victims Assistance made by or on behalf of the primary victim does not survive the death of the primary victim.
If a primary victim dies as the direct result of an act of violence, a member of the victim’s family may become eligible under Division 1 of this Part for statutory compensation.
For the purposes of this section, expenses incurred by a primary victim of an act of violence for the provision of security measures in response to the act of violence are taken to be expenses incurred by the primary victim as a direct result of the act of violence.
The statutory compensation for which a secondary victim of an act of violence is eligible comprises:
(a) compensation for compensable injuries received by the victim as a direct result of witnessing the act of violence, and
(b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury.
Any secondary victim who dies ceases to be eligible for statutory compensation. Any pending application made by or on behalf of a secondary victim does not survive the death of the secondary victim.
The statutory compensation for which all family victims of an act of violence are together eligible is, subject to this Act, $50,000.
If there are 2 or more family victims of an act of violence:
(a) the victims are eligible to an equal share of the amount of $50,000, subject to paragraph (b), and
(b) victims who were not dependent family members at the time of the act of violence are not eligible for any amount of compensation if there are also dependent family members at that time.
A family victim is a
(a) the person was dependent on the primary victim at the relevant time, or
(b) the person is a child of the primary victim born after the death of the victim where, had the child been born in the victim’s lifetime, the child would have been a dependent family member of the victim by virtue of paragraph (a).
Any family victim who dies ceases to be eligible for statutory compensation. Any pending application made by or on behalf of a family victim does not survive the death of the family victim.
Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries.
Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule.
Compensation for financial loss is compensation for the following:
(a) actual expenses,
(b) actual loss of earnings,
(c) loss of personal effects (in the case of a primary victim only).
Compensation for loss of personal effects is compensation payable to a primary victim who has received a compensable injury for the loss of, or for damage to, any personal effects that were worn or carried by the primary victim at the time of the act of violence and that were lost or damaged as a direct result of that act. The maximum amount payable in respect of an act of violence is $1,000.
Compensation for actual loss of earnings is to be calculated at the rate of weekly payment of compensation payable under the Workers Compensation Act 1987 after the first 26 weeks of incapacity within the meaning of that Act.
The rules may make provision limiting the amount that may be awarded as compensation for the cost of counselling services (for example, by reference to a maximum hourly rate for counselling services and the maximum amount payable). Compensation for counselling services is to be calculated in accordance with any such provisions of the rules.
The maximum amount of compensation for financial loss to which a person is entitled in respect of an act of violence is $10,000.
Compensation for financial loss is not payable to a person to the extent that the person has received, or is entitled to receive, payment for that loss under any insurance or agreement or under any other Act or law.
This section does not apply to Victims Assistance.
The maximum amount of statutory compensation payable to a single person in respect of an act of violence is $50,000.
The maximum amount of statutory compensation that all of the following victims are together eligible to receive is $50,000:
(a) a primary victim of an act of violence,
(b) all secondary victims claiming through that primary victim,
(c) all family victims claiming through that primary victim.
If entitlements to statutory compensation are required to be reduced because of the maximum amount provided by this section:
(a) the amounts payable to secondary victims are to be reduced rather than the amounts payable to primary victims or family victims, and
(b) the amount of $50,000 payable to family members is to be reduced by any amount paid to a primary victim (or to any secondary victim claiming through the primary victim) before the primary victim’s death.
If the amount of statutory compensation otherwise payable to 2 or more secondary victims is to be reduced because of this section, the amount available to be paid is to be apportioned among those victims in the same proportions as the amount otherwise payable to each such victim bears to the total of those amounts.
This section applies despite any other provision of this Act (except section 20).
There is to be deducted from each award of statutory compensation payable to any person who is awarded an amount of statutory compensation that is less than $20,001 (or such other amount as may be prescribed by the regulations) the amount of $750 (or such other amount as may be prescribed by the regulations).
A deduction under this section is to be made only if, when an award is made to a victim, the total amount of statutory compensation awarded to a primary victim and any secondary victims claiming through the primary victim, is less than $20,001.
This section does not apply to statutory compensation payable to family victims or Victims Assistance.
A deduction under this section is not to be taken into account for the purpose of determining whether statutory compensation is payable to a single person as set out in section 20.
Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person, as compensation for compensable injuries, is at least:
(a) subject to paragraph (b)—$7,500, or
(b) such other amount as is prescribed by the regulations.
(Repealed)
This section does not apply to statutory compensation payable to family victims or Victims Assistance.
For the purposes of this section:
(a) the total amount of compensation payable to a person as compensation for compensable injuries is the total amount arrived at after any reduction in that compensation to be made under section 19, 30 or 31 or the schedule of compensable injuries, and
(b) no other reduction in that compensation made under this Act is to be taken into account in determining the total amount of that compensation.
This section applies despite any other provision of this Act.
In this section:
(a) a family victim, or
(b) a primary victim or a secondary victim, or
(c) a person who is a victim of an act of violence but who, merely because the person did not receive a compensable injury, is not a primary victim or secondary victim within the meaning of this Act, or
(d) a relevant family member,
but does not include a person who is the victim of an act of violence:
(e) arising in the circumstances described in section 24 (2), unless the person is a family victim of the act and the act apparently occurred in the course of the commission of the offence of murder or manslaughter, or
(f) arising in the circumstances described in section 24 (3) or (4).
A victim may apply for payment for approved counselling services for the victim as a consequence of an act of violence. Such an application is to be made to the Director.
The Director may authorise payments for approved counselling services for a victim (other than a family victim or relevant family member):
(a) for a period of up to 10 hours of counselling (including counselling for the purposes of an application for continued counselling), and
(b) for such further periods of counselling as the Director may consider appropriate.
Subject to the rules, the Director may consider a person to be a victim (other than a family victim or relevant family member) referred to in subsection (3), for the purposes of authorising payments for an initial period of 2 hours of counselling for the person, if satisfied that counselling may assist in establishing whether or not the person is a victim.
The Director must not authorise payments for more than a total of 22 hours of counselling services for a person under subsection (3) unless satisfied that there are exceptional reasons for doing so.
The Director may authorise payments for approved counselling services for a victim who is a family victim or relevant family member:
(a) for a period of up to 20 hours of counselling, and
(b) for such further periods of counselling as may be requested by the family victim or relevant family member.
Payments may be made for approved counselling services even though:
(a) the victim is entitled to workers compensation in respect of the act of violence concerned or is awarded compensation by a court under Part 4, or
(b) the maximum amount of statutory compensation is payable in respect of the act of violence concerned.
(Repealed)
Payments for approved counselling services are to be made from the Compensation Fund directly to the service provider, except that payments for up to 2 hours of the period referred to in subsection (3) (a) may be made from that Fund by way of reimbursement of the victim if it was not reasonably practicable for the victim to obtain the Director’s authorisation for the payment before undertaking the counselling.
A decision of the Director under this section that is made by a delegate of the Director may be reviewed by the Director or another delegate of the Director. Any other decision of the Director under this section may be reviewed by a member of the Tribunal.
The rules may make provision for or with respect to payments for approved counselling services, including the application (with or without modification) of the provisions of this Act relating to statutory compensation.
The Director may approve professional counsellors who may provide approved counselling services for the purposes of section 21.
The Director may:
(a) suspend or revoke an approval, and
(b) make an approval subject to conditions, and
(c) vary or revoke any condition of an approval or impose additional conditions on an approval.
A secondary victim or family victim is not eligible to receive statutory compensation if the primary victim through whom he or she is claiming is not eligible, or if the primary victim had not died would not have been eligible, to receive statutory compensation to which section 14 applies.
A secondary victim is not entitled to claim statutory compensation before 1 year has elapsed since the act of violence concerned occurred, unless:
(a) a notice of the secondary victim’s intention to claim statutory compensation has been served (in accordance with the rules) on:
(i) the primary victim through whom he or she is claiming, or
(ii) if that primary victim has died—at least one of the immediate family of that primary victim, and
(b) no application has been made by or on behalf of that primary victim, or a relevant family victim, within 3 months after the service of the notice.
Despite subsection (2), such a secondary victim is entitled to claim statutory compensation within that period of 1 year if an application for statutory compensation made by or on behalf of that primary victim or a relevant family victim has been finally determined.
(Repealed)
A person is not eligible to receive more than one award of statutory compensation in respect of the same act of violence.
If a person’s application for statutory compensation in respect of an act of violence has been finally determined by the dismissal of the application, the person is not eligible to receive an award of statutory compensation by means of a further application that is made:
(a) in respect of the same act of violence, and
(b) in the same capacity of primary victim, secondary victim or family victim.
This section does not prevent a person from receiving:
(a) an award of statutory compensation to which section 14 applies in addition to an award of Victims Assistance in respect of the same act of violence, or
(b) in a case where the person’s application for Victims Assistance has been dismissed—an award of statutory compensation to which section 14 applies in respect of the same act of violence, or
(c) in a case where the person’s application for statutory compensation to which section 14 applies has been dismissed—an award of Victims Assistance in respect of the same act of violence.
However, section 14 (3) prevents a person from being granted compensation for financial loss to the extent that Victims Assistance has been awarded for that loss. Further, under section 14A (6), Victims Assistance is not payable to a person who has already been awarded statutory compensation to which section 14 applies in respect of the same act of violence.
No more than one award of compensation may be made with respect to any one application for statutory compensation.
A person is eligible to receive statutory compensation in respect of the same act of violence in only one of the capacities of primary victim, secondary victim or family victim.
A person is not entitled to claim statutory compensation in respect of an act of violence (the
(a) the Tribunal or a compensation assessor has at any time awarded statutory compensation to the person in respect of another act of violence, and
(b) the uncompensated act of violence occurred before the person lodged the application for statutory compensation in respect of the other act of violence.
However, subsection (1) does not prevent the person from claiming statutory compensation in respect of the uncompensated act of violence if the Tribunal or compensation assessor is satisfied that:
(a) but for section 22 (2), the person would have claimed statutory compensation before lodging the application in respect of the other act of violence, or
(b) the case involves exceptional circumstances that justify an exception being made to subsection (1).
Subsection (1) does not prevent a person claiming statutory compensation in the person’s capacity as a family victim or under section 33A in respect of funeral expenses.
A reference in this section to a person who has lodged an application for statutory compensation includes a reference to a person on whose behalf such an application has been lodged.
A person is not eligible to receive statutory compensation in respect of an act of violence if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 4 or if the person’s application for such compensation is pending.
A person is not eligible to receive statutory compensation in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Compensation Act 1999.
A person is not eligible to receive statutory compensation in respect of an act of violence if it occurred while the person was engaged in behaviour constituting an offence.
A person is not, except as provided by subsection (5), eligible to receive statutory compensation in respect of an act of violence if it occurred while the person was imprisoned as a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (unless the person was imprisoned only because of the person’s failure to pay a pecuniary penalty).
However, any such convicted inmate may, in special circumstances, receive statutory compensation. Any such award must not be made unless:
(a) the award of compensation is made by the Tribunal, and
(b) the Tribunal is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted inmates.
Without limiting the foregoing, the Tribunal may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.
An application for statutory compensation may be made:
(a) by a primary victim, secondary victim or family victim of an act of violence, or
(b) by any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim.
An application:
(a) must be in the form required by the rules, and
(b) must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form, and
(c) must be lodged with the Director.
An application may also be lodged with a registrar of the Local Court. In that case, the registrar is to forward the application to the Director as soon as practicable after it is so lodged.
An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim.
An application that is lodged out of time may be accepted with the leave of the Director.
The Director must not give leave for the acceptance of an application that is lodged out of time if:
(a) the application is for Victims Assistance, or
(b) except as provided by subsection (2B), the applicant is a family victim of the relevant act of violence.
The Director may give leave for the acceptance of an application that is lodged out of time by or on behalf of a family victim if the Director is satisfied that, on the date on which the application was lodged:
(a) the family victim was under 20 years of age, or
(b) no more than 2 years had elapsed since it was established (whether or not by a court) that the primary victim through whom the family victim’s claim has been made died as a direct result of the relevant act of violence.
However, the Director must not give leave under subsection (2B) if a total amount of $50,000 by way of statutory compensation has been awarded in respect of the relevant act of violence to one or more of the following:
(a) the primary victim,
(b) any person whose claim was made through that primary victim as a family or secondary victim,
(c) any person whose claim was made under section 33A in respect of the funeral expenses of that primary victim.
$50,000 is the maximum amount that the primary victim of an act of violence and any other victims claiming through that victim are together eligible to receive. (See section 19 (3). See also sections 16 (1) and 33A (5).)
The following policies apply to the giving of leave by the Director for the acceptance of an application lodged out of time:
(a) leave should not be given unless the applicant establishes that there is good reason to do so,
(b) however, leave should be given in cases of sexual assault, domestic violence or child abuse unless the Director is satisfied that there is no good reason to do so,
(c) leave should not be given merely because the applicant is unaware of the time within which applications should be lodged,
(d) the matters taken into account under section 30 (2) for the purpose of determining whether an act of violence was reported to a police officer within a reasonable time should also be taken into account for the purpose of determining whether there is a good reason for giving leave.
An applicant for statutory compensation may, by written notice to the Director, withdraw his or her application at any time before the application is determined.
The withdrawal of an application for statutory compensation under this section does not prevent the applicant from making another application for statutory compensation.
If an applicant for statutory compensation has not made any contact with the Director for 6 months, the Director may give notice to the applicant stating that if the applicant does not contact the Director by the date and in the manner specified in the notice (being a date that is not less than 6 months after the Director gives the notice), the application will lapse.
If the applicant does not contact the Director by the date and in the manner specified in the notice, the application lapses.
The lapsing of an application under this section does not prevent the applicant from making another application for statutory compensation.
Each duly lodged application for statutory compensation is to be considered by a compensation assessor.
The application is to be dealt with by a compensation assessor without conducting a hearing into the matter.
A compensation assessor may require an applicant for statutory 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 assessor, or
(b) by a duly qualified medical practitioner or duly qualified psychologist belonging to a class of medical practitioners, or class of psychologists, specified by the assessor.
The costs of any such examination are to be paid for out of the Compensation Fund.
After considering an application for statutory compensation, the compensation assessor must determine the application:
(a) by making an award of statutory compensation, or
(b) by dismissing the application.
If the application is for statutory compensation to which section 14 applies and the compensation assessor is satisfied that the applicant is not eligible to receive that kind of statutory compensation (solely because of the operation of section 20), but is eligible to receive Victims Assistance, the compensation assessor may, with the consent of the applicant, determine the application as if it were an application for Victims Assistance.
An award of statutory compensation may be made to a family victim whenever the compensation assessor who is determining the application is satisfied that there is no other family victim who is likely to make an application for statutory compensation.
(Repealed)
An award of statutory compensation must not be made unless the compensation assessor is satisfied, on the balance of probabilities, that the person to whom the application for that compensation relates:
(a) is a primary victim, secondary victim or family victim of an act of violence, and
(b) is eligible to receive the amount of compensation provided by the award.
The compensation assessor must, in determining the application, have regard to the guidelines issued by the Tribunal under section 65.
Written notice is to be given to the applicant of the determination of the application.
If an award of compensation is made, the notice must include:
(a) a statement of the amount (if any) payable by way of compensation for compensable injuries and a statement of the amount (if any) payable by way of compensation for financial loss (or Victims Assistance), together with a statement of the reasons for awarding those amounts, and
(b) a statement of the amount (if any) payable by way of costs.
If the application is dismissed, the notice must include a statement of the reasons for the dismissal.
In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,
(b) whether the act of violence was reported to a police officer within a reasonable time,
(b1) whether the act of violence was reported to a relevant health professional or practitioner, or a relevant agency,
(c) whether that victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed,
(d) whether that victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,
(d1) whether that victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, or undertaking counselling, as soon as practicable after the act of violence was committed,
(e) such other matters as the compensation assessor considers relevant.
In determining whether a matter relating to a victim was reported to a police officer within a reasonable time, the compensation assessor may have regard to such matters as the assessor considers relevant, including the following:
(a) the age of the victim when the act of violence is alleged to have occurred,
(b) any intellectual or psychiatric disability to which the victim is subject,
(c) the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed,
(d) any fear of retaliation by any such person or persons to which the victim is subject,
(e) the nature of any injury alleged to have been sustained by the victim,
(f) any representation made by or on behalf of a police officer to a victim as to whether he or she should withdraw his or her complaint in relation to the act of violence or consent to no further action being taken in relation to the act of violence.
In determining the matter referred to in subsection (1) (d1) in the case of an act of violence involving sexual assault or domestic violence, the compensation assessor must have regard to the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed.
In determining the amount of statutory compensation to award to a person, the compensation assessor must have regard to:
(a) any amount that has been paid to the person or that the person is entitled to be paid:
(i) by way of damages awarded in civil proceedings, or
(ii) under any other Act or law (including workers compensation), or
(iii) under any insurance or other agreement, and
(b) any other amount that has been received by the person or that (in the opinion of the assessor) is likely to be received by the person,
in respect of the act of violence to which the application for statutory compensation relates.
If the compensation assessor is satisfied that the applicant may be entitled to workers compensation (or payment in the nature of workers compensation) in respect of the act of violence to which the application for statutory compensation relates, the assessor is to postpone the determination of the application until any entitlements to workers compensation have been determined.
The compensation assessor may postpone the determination of a person’s application for statutory compensation pending the determination of another application for statutory compensation if the person has been convicted of an offence that is a
This section (other than subsection (3)) applies to an application for statutory compensation by a family victim and to the primary victim through whom the claim is made. Accordingly, despite anything to the contrary in section 16, the amount of $50,000 payable to family victims may be reduced or no award may be made.
For the purpose of giving effect to a determination for restitution under Division 8 that has been made or is to be made against a person to whom an award of statutory compensation is to be made, the compensation assessor may reduce the amount of the proposed award by the amount of the determination for restitution or proposed determination for restitution.
On the reduction under this section of the amount of an award made to a person, the person is taken to have paid the amount of the determination or proposed determination for restitution to the extent of the reduction.
An award of statutory compensation may be made payable:
(a) to the person to whom the application for statutory compensation relates, or
(b) to any other person for the benefit of that person.
In making a decision as to whom an award of statutory compensation should be made payable, the compensation assessor must have regard to the likelihood that a person by whom an act of violence was allegedly committed may receive the benefit of the award or any part of the award.
Sections 77, 78 and 79 of the Civil Procedure Act 2005 apply to money recovered under an award of statutory compensation in the same way as they apply to money recovered as referred to in section 77 (1) of that Act.
Pending the determination of an application for statutory compensation, the compensation assessor may:
(a) if it appears that the person to whom the application relates is in severe financial hardship, or
(b) in the case of a family victim, if payment is due for funeral expenses relating to the primary victim, or
(c) in such other circumstances as the compensation assessor considers appropriate,
make an interim award of statutory compensation to that person.
An interim award is not to be made unless the compensation assessor is satisfied that the applicant will be entitled to receive statutory compensation when the application is determined.
If an interim award is made but the application for statutory compensation is then dismissed, the amount of the interim award becomes a debt due to the Compensation Fund Corporation by the applicant.
If, on determining the application, the compensation assessor decides to award statutory compensation to the person to whom the application relates, the assessor must deduct the amount of any interim award of statutory compensation from the amount of statutory compensation that the assessor would otherwise have awarded.
An interim award of statutory compensation for funeral expenses referred to in subsection (1) (b) may only be made to the extent that the expenses are reasonable.
This section applies if expenses relating to the funeral of a primary victim of an act of violence have been incurred by a person who is not eligible for statutory compensation as a family victim.
Such a person may apply for payment of the amount of the reasonable funeral expenses incurred by the person. Such an application is to be made to the Director.
A compensation assessor may approve payment to the person of an amount that the assessor considers to be fair and reasonable.
Any such payment:
(a) is to be paid from the amount of statutory compensation for which the family victims are eligible, and
(b) is taken to be an award of statutory compensation despite section 6.
Accordingly, and despite section 16, the amount of $50,000 payable to the family victims concerned may be reduced if an application for payment of reasonable funeral expenses is approved by the compensation assessor under this section.
An award of statutory compensation (including an interim award) may be made subject to such conditions as the compensation assessor thinks fit:
(a) as to the notification to the Director of such matters (including matters relating to the financial circumstances of the person to or for whose benefit the award is made) as may be specified in the notice of determination relating to the award, or
(b) as to the assignment by the person to or for whose benefit the award is made of that person’s right to any entitlement that the person has by way of damages awarded in civil proceedings, or
(c) as to the repayment of the whole or any part of the amount of the award under such circumstances as may be specified in the notice of determination relating to the award, or
(d) in the case of an award that is payable to a person for the benefit of some other person:
(i) as to the payment of the statutory compensation to or for the benefit of that other person, or
(ii) as to the holding of the whole or any part of the statutory compensation on trust for that other person.
An award of compensation is subject to the following conditions:
(a) the person to or for whose benefit the award is made, other than a family victim, must notify the Director of any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in the award,
(b) the person to or for whose benefit the award is made (other than a family victim) must repay from the amount awarded any such future amounts referred to in paragraph (a) on demand by the Director,
(c) the person to or for whose benefit the award is made must repay to the Director the amount awarded if it is subsequently ascertained that the award was obtained by fraud or collusion,
(d) the person to or for whose benefit the award is made (if a primary or secondary victim of an act of violence) is to provide reasonable assistance to any person or body engaged in the official investigation of the act of violence.
If an amount is required to be repaid in accordance with the conditions to which an award of compensation is subject and the amount is not repaid, that amount may be recovered as a debt due to the Compensation Fund Corporation.
The rules may prescribe other conditions to which an award of statutory compensation is subject.
The Tribunal or a compensation assessor may award an applicant for statutory compensation his or her costs in respect of the application (whether or not proceedings are taken before the Tribunal on appeal or otherwise) in accordance with such scale of costs as may be prescribed by the rules.
An applicant may, if the Tribunal or a compensation assessor so directs, be awarded costs under this section even if the application for compensation is dismissed.
The Tribunal or a compensation assessor may award an applicant costs in excess of the maximum amount provided for in the scale of costs referred to in subsection (1) if of the opinion that the special circumstances of the case justify such an award being made.
The Tribunal or compensation assessor may decline to make an award of costs or may award costs of a lesser amount than the maximum amount provided for in the scale of costs referred to in subsection (1).
Despite any Act or law to the contrary, but subject to any order of the Tribunal or compensation assessor, an Australian legal practitioner is not entitled to charge or recover, by way of costs in respect of an application for statutory compensation or of the proceedings of the Tribunal in respect of such an application, any amount in excess of the amount awarded under this section.
The Tribunal or a compensation assessor may disallow any costs incurred in connection with a medical report prepared for the purpose of an application for statutory compensation or proceedings before the Tribunal. In that case, the Tribunal or Director may cause a complaint to be made to:
(a) the Health Care Complaints Commission, or
(b) any other relevant body concerned with the practice of medicine,
if of the opinion that the fees charged by a medical practitioner in connection with the report are grossly excessive for the services to which they relate.
A provision of any agreement (whether in writing or not and whether entered into before or after the commencement of this section):
(a) under which the operation of subsection (4) is excluded, modified or restricted, or
(b) which has the effect of excluding, modifying or restricting the operation of subsection (4),
is void.
An award of costs under this section may be made payable:
(a) to the applicant, or
(b) to any other person for the benefit of the applicant.
This section does not apply in relation to an application for Victims Assistance except in a case where the application has been determined as an application for Victims Assistance because of the operation of section 29 (1AA).
As a consequence of this subsection, the Tribunal or a compensation assessor does not have any discretion to award costs relating to an application for Victims Assistance except where the application has been determined in accordance with section 29 (1AA).
In any such case, the Tribunal or a compensation assessor may award an applicant his or her costs in respect of the application, and in such amounts as the Tribunal or assessor thinks fit, if the Tribunal or assessor is of the opinion that the special circumstances of the case justify such an award being made.
An applicant for Victims Assistance may apply to the Director for the correction of a miscalculation in the amount awarded by a compensation assessor as Victims Assistance.
An application to the Director under this section must be made within 28 days after the day on which the relevant notice of the determination of the compensation assessor was duly served.
Any such application must be in the form required by the rules and must be lodged with the Director.
The Director may determine the application by:
(a) affirming the amount awarded by the compensation assessor, or
(b) varying the award by correcting any miscalculation in the amount of the award.
Written notice is to be given to an applicant under this section of the determination of the Director.
An applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination.
The applicant may not appeal to the Tribunal:
(a) for the correction of a miscalculation in the amount awarded as Victims Assistance, or
(b) against a determination of a compensation assessor under section 35 in relation to costs.
An applicant may apply to the Director under section 35A for the correction of a miscalculation in the amount awarded as Victims Assistance.
A person who is aggrieved by a determination of the Director to refuse leave for a late application for statutory compensation may appeal to the Tribunal against the determination.
An appeal may be made:
(a) within the period of 3 months after the day on which the relevant notice of the determination made by the compensation assessor or Director was duly served on the person, or
(b) within such further time as the Tribunal may in exceptional circumstances allow.
If the compensation assessor dealing with an application for statutory compensation considers that the application should be determined by the Tribunal, the Director may refer the application to the Tribunal for determination.
If the Chairperson of the Tribunal considers that an application for statutory compensation that has been determined by a compensation assessor should be reviewed by the Tribunal, the Director is to refer the application to the Tribunal for re-determination.
Except as provided by subsection (2), the Tribunal is to proceed to determine a matter the subject of an appeal or reference to it under this Division without a hearing.
The Tribunal is to conduct a hearing into the matter if the Tribunal is satisfied that it cannot properly determine the matter without a hearing. Any such hearing is to be conducted in accordance with Schedule 2.
An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against.
The Tribunal is to determine the matter in accordance with the relevant provisions of Division 5 and, for that purpose a reference in that Division to a compensation assessor or the Director is taken to be a reference to the Tribunal.
The Tribunal may, without limiting the generality of subsection (4), do any of the following:
(a) affirm or set aside any determination of a compensation assessor,
(b) remit the application to be considered and determined or re-redetermined by a compensation assessor in accordance with the directions of the Tribunal.
The Tribunal is to so remit the application if further evidence and material received by the Tribunal could reasonably have been provided to the compensation assessor who dealt with the matter.
An applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal.
An appeal by a person under this section may be instituted:
(a) within the period of 3 months after the day on which the relevant notice of the determination made by the Tribunal was duly served on the person, or
(b) within such further time as the District Court may in exceptional circumstances allow.
For the purposes of this section, the following matters are not questions of law:
(a) a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description specified in that schedule,
(b) a determination of whether a series of acts are related and constitute a single act of violence.
An appeal does not lie to the District Court against a decision of the Tribunal to refuse leave for a late application for statutory compensation.
On an appeal, the District Court may only:
(a) affirm the determination of the Tribunal, or
(b) set aside the determination and remit the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned.
Subject to any order of the Tribunal or District Court to the contrary, the institution of an appeal to the Tribunal or District Court (or the referral of an application for re-determination by the Tribunal) suspends the application of section 42, in relation to the payment of compensation, pending the determination of the appeal or the re-determination.
The Compensation Fund Corporation is the respondent to any appeal or reference under this Division.
An application for payment of the whole or any part of the following is to be made to the Director:
(a) an award of statutory compensation (other than Victims Assistance),
(b) an award of costs under section 35 (including any such award made in respect of an application for Victims Assistance that has been determined as an application for Victims Assistance because of the operation of section 29 (1AA)).
The Director is to forward any such application to the Compensation Fund Corporation.
After an award of Victims Assistance is made, the Director is required to forward to the Compensation Fund Corporation a copy of the notice under section 29 of the determination concerned.
On receiving the application or notice (as the case may be), the Compensation Fund Corporation must (subject to the conditions of the award and any deductions made in accordance with those conditions) pay the relevant amount to the person to whom the award is payable.
The amount 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.
This section applies to civil proceedings commenced or maintained in respect of an injury or loss sustained by a person to whom an award of statutory compensation has been made under this Part on the basis of the same facts as those on which the civil proceedings are based.
Subject to subsection (3), an award of statutory compensation does not affect a person’s right to commence or maintain civil proceedings, and damages in civil proceedings must be assessed without regard to the award.
On the payment to a person of an award of statutory compensation, the person’s right to commence or maintain civil proceedings against any other person in respect of the same facts as those on which the award is based is, by operation of this section, subrogated to the State to the extent of the amount of compensation so paid.
This section does not limit the operation of section 57, 76 or 77G.
If a person is convicted of:
(a) an offence of obtaining an award of statutory compensation by means of fraud or false pretence or by means of a wilfully false or wilfully misleading statement, or
(b) an offence, in relation to the obtaining of an award of statutory compensation, of a kind prescribed by the rules,
the Tribunal may, on application by the Director, make an order for restitution for such amount as has been paid to the person under the award.
An order for restitution may not be made if 2 years or more have elapsed since the date on which the person was convicted of the relevant offence.
The provisions of Division 8 relating to the recovery of money under an order for restitution and to the creation of charges on land under that Division apply to an order for restitution under this section.
In this Division:
If the Director is of the opinion that, before or after an award of statutory compensation is made, a person has been convicted of a relevant offence, the Director may make a provisional order for restitution against the person so convicted.
A
(a) an offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made, or
(b) any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence.
The Director must cause notice of the provisional order to be served on the person so convicted in accordance with the rules.
The notice of the provisional order must:
(a) set out the terms of the order, and
(b) specify the date on which the award of statutory compensation was made and the facts on which the award was based, and
(c) specify the offence to which the order relates and the date on which it is alleged that the person was convicted of the offence, and
(d) state that the person has 28 days in which to object to the order by a notice filed in the office of the Director, and
(e) state that if the person does not object the order will be confirmed by the Tribunal and become a judgment debt payable by the person, and
(f) state that if the person files a notice of objection the Tribunal will conduct a hearing into whether the order should be confirmed, and
(g) contain such other particulars as the rules may require.
A provisional order for restitution may not be made against a person if:
(a) 2 years or more have elapsed since:
(i) the date on which the relevant award of statutory compensation was made, or
(ii) the date on which the person was convicted of the relevant offence,
whichever is the later, or
(b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant award of statutory compensation was based.
If the Director is of the opinion that a person against whom a provisional order for restitution has been made under section 46 has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, the Director may make a provisional order for restitution against any person:
(a) who was a party to the scheme, and
(b) who obtained property under the scheme without giving sufficient consideration.
A provisional order may be made against a person under this section whether or not the person has retained the property concerned.
The Director must cause notice of the provisional order to be served on the person against whom it is made in accordance with the rules.
The notice of the provisional order must:
(a) set out the terms of the order, and
(b) specify the person against whom the restitution order under section 46 has been made and the transaction that formed part of the scheme to avoid the liability under this Division, and
(c) state that the person on whom the notice is served has 28 days in which to object to the order by a notice filed in the office of the Director, and
(d) state that if the person does not object the order will be confirmed by the Tribunal and become a judgment debt payable by the person, and
(e) state that if the person files a notice of objection the Tribunal will conduct a hearing into whether the order should be confirmed, and
(f) contain such other particulars as the rules may require.
A provisional order may not be made under this section if 2 years or more have elapsed since the provisional order on which it is based was made under section 46.
A provisional order for restitution may not be made under this section (and any such order that has been made ceases to be in force) if the order under section 46 on which it is based is not confirmed or any consequent restitution order is set aside or ceases to be in force.
The total amount that may be recovered under an order under this section and under the order under section 46 on which it is based is not to exceed the amount payable under the order under section 46.
A defendant served with a provisional order for restitution may, within 28 days after service, file in the office of the Director a notice of objection to the confirmation of the order.
A notice of objection must comply with the rules and must include the grounds of the objection on which the defendant intends to rely.
The Tribunal may confirm a provisional order for restitution without conducting a hearing if it is satisfied that the defendant has not filed a notice of objection within 28 days after notice of the provisional order was duly served on the defendant.
If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed (in this Division called
The Tribunal may confirm a provisional order made under section 46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied, it must discharge the provisional order.
The Tribunal may confirm a provisional order made under section 46A if satisfied that:
(a) a person against whom a provisional order for restitution has been made under section 46 has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and
(b) the defendant was a party to the scheme and obtained property under the scheme without giving sufficient consideration.
If the Tribunal is not so satisfied, it must discharge the provisional order.
The Tribunal may vary a provisional order for restitution that it confirms.
The Director and a defendant may enter into an arrangement with respect to payment under a provisional order for restitution or any such order that is confirmed.
Such an arrangement may relate to the time for payment or to a reduction in the total amount payable under the order, or both.
For the purpose of enabling the Director and the defendant to come to such an arrangement, the Tribunal may adjourn recovery proceedings for such period as it considers appropriate.
If the defendant does not comply with such an arrangement, recovery proceedings may be taken for the purposes of confirming the order for restitution for the total amount payable under the order.
The Tribunal may, when it confirms a provisional order, reduce the amount to be paid under the provisional order having regard to:
(a) the financial means of the defendant, and
(b) such other matters as are, in the opinion of the Tribunal, relevant to the determination.
The maximum amount that may be ordered to be paid under an order for restitution (whether made against one or more defendants) is the amount that has been paid to the victim under the award of statutory compensation to which the order relates.
If an order for restitution is made against two or more defendants in respect of the same award of statutory compensation, each of the defendants is jointly and severally liable under the order.
If the Tribunal decides under subsection (1) to reduce the amount payable by a defendant under an order made against two or more defendants, the Tribunal may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order.
Subject to this Division and the rules, recovery proceedings must be determined:
(a) in accordance with the rules of evidence, and
(b) in accordance with the practice and procedure of the Local Court in its exercise of civil jurisdiction,
in the same way as proceedings on a statement of claim are determined by the Local Court in its General Division.
The victim to whom recovery proceedings relate is competent, but not compellable, to give evidence in the proceedings.
Despite any rule of law to the contrary, evidence given by the victim:
(a) in any application for an award of statutory compensation, or
(b) in any hearing relating to that application, or
(c) in any other proceedings (whether civil or criminal) arising from substantially the same facts as those on which the award of statutory compensation was based,
is admissible in recovery proceedings.
If evidence so given by the victim is admitted in recovery proceedings but the victim does not attend as a witness in the proceedings, that evidence must be given no greater weight than is appropriate as a consequence of there having been no opportunity for the victim to be cross-examined in relation to that evidence.
The Tribunal does not have jurisdiction to order payment of costs in relation to recovery proceedings.
A person (other than a public servant) who is required to attend or to give evidence at recovery proceedings is entitled to be paid such allowances and expenses as may be prescribed by the rules.
An order for restitution does not have any effect:
(a) until the period within which an appeal may be made against the award of statutory compensation from which it arises, or to which it relates, has expired, or
(b) if such an appeal is duly made within that period, until the appeal is finally determined.
If the award of statutory compensation to which such an appeal relates is set aside or varied as a result of the appeal, the order for restitution ceases to have effect.
In the event that the award is varied, a new provisional order for restitution may be made in accordance with this Division as if the original order had not been made.
An order for restitution may be enforced under Part 8 of the Civil Procedure Act 2005 as if it were a judgment debt arising from proceedings under Part 3 of the Local Court Act 2007.
Interest is payable on the amount payable under an order for restitution in accordance with the provisions relating to interest on the amount payable under such a judgment.
Money payable under an order for restitution and not paid may be written off in accordance with a relevant policy on the matter determined by the Minister.
Rules may be made for the purposes of this section, and for that purpose may apply the provisions of the Civil Procedure Act 2005, with or without modification.
In addition, the rules may make provision for the attachment of the prison earnings of convicted persons for the purposes of enforcing orders for restitution.
An order for restitution that is confirmed after a hearing before the Tribunal may be appealed against in the same way as a judgment of the Local Court exercising civil jurisdiction may be appealed against.
An appeal may not be lodged under this section if 1 month or more has elapsed since the date on which the order for restitution was made.
The Tribunal, on sufficient cause shown, may, by order, set aside an order for restitution.
The Tribunal may stay the execution of a judgment pending the determination of any proceedings to set aside the order for restitution.
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 order for restitution, as may be prescribed by the rules.
This section applies to civil proceedings in respect of an injury or loss sustained by a person to whom an award of statutory compensation has been made (being an award in respect of which an order for restitution has been made) on the basis of the same facts as those on which the civil proceedings are based.
An order for restitution does not affect a person’s right to commence or maintain civil proceedings, and damages in the civil proceedings must be assessed without regard to the order.
However, the right of the State, under section 43, to commence or maintain civil proceedings is extinguished by an order for restitution.
Subsection (3) does not revive the right of any other person to commence or maintain civil proceedings to the extent to which that right was previously subrogated to the State under section 43.
This section does not limit the operation of section 43, 76 or 77G.
Police officers, Roads and Maritime Services and other government agencies are authorised to provide the Director with information about the address of a defendant for the purpose of serving a provisional order for restitution on the defendant or taking any action against the defendant to enforce an order for restitution.
The Director may apply to the Registrar-General for registration of a restitution order in relation to any land owned by the defendant (including any land owned jointly with another person).
An application must define the land to which it relates.
The Registrar-General must, on application under this section and lodgment of a copy of the restitution order, register the order in relation to the land in such manner as the Registrar-General thinks fit.
There is created by force of this section, on the registration of the order, a charge on the land in relation to which the order is registered to secure the payment to the Compensation Fund Corporation of the amount payable under the order.
The charge created by force of this section is subject to every charge or encumbrance to which the property was subject immediately before the charge was created and, in the case of land under the provisions of the Real Property Act 1900, is subject to every mortgage, lease or other interest recorded in the Register kept under that Act.
Such a charge ceases to have effect in relation to the land:
(a) on registration of cancellation of the charge under section 58B, or
(b) on the sale or other disposition of the land with the consent of the Compensation Fund Corporation, or
(c) on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge, or
(d) on full payment of the amount payable under the restitution order,
whichever first occurs.
The Compensation Fund Corporation may cancel a charge created under section 58A at any time for good reason.
The cancellation of a charge on land does not take effect until the Registrar-General registers the cancellation of the charge.
This Division applies where:
(a) a person has been charged with an offence in relation to which an act of violence occurred resulting in an injury to a victim for which statutory compensation may be paid, or
(b) a person has been convicted of an offence in relation to which any such act of violence occurred, or
(c) a person was a party to a scheme to avoid a liability (whether actual or potential) under Division 8 and obtained property under that scheme without giving sufficient consideration.
In this Division:
In this Division, a reference to a person being charged with an offence is a reference to an information being laid against the person for an offence whether or not:
(a) a summons to require the attendance of the person to answer the information has been issued, or
(b) a warrant for the arrest of the person has been issued.
A restraining order is an order of the Supreme Court directing that any property of the defendant, or under the effective control of the defendant, is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order.
An appropriate officer may apply, ex parte, to the Supreme Court for a restraining order in relation to property of the defendant or property under the effective control of the defendant.
On an application under this section:
(a) the Supreme Court may, if it thinks fit, require the person making the application to give notice of the application to a person who the Court has reason to believe has an interest in the property or part of the property, and
(b) a person to whom the Court requires notice to be given under paragraph (a) is entitled to appear and to adduce evidence at the hearing of the application.
On an application under section 58E relating to a defendant charged with, or convicted of, an offence, the Supreme Court may make a restraining order in relation to the defendant’s property or property under the effective control of the defendant, if it is satisfied (on the information contained in or accompanying the application) that:
(a) the defendant has been charged with an offence in relation to which an act of violence occurred resulting in an injury to a victim for which statutory compensation may be paid or has been convicted of an offence in relation to which any such act of violence occurred, and
(b) amounts of statutory compensation are or are likely to be payable, and
(c) it is appropriate to make the order in the circumstances of the case.
On application under section 58E relating to a defendant who was a party to a scheme to avoid a liability (whether actual or potential) under Division 8, the Supreme Court may make a restraining order in relation to the defendant’s property or property under the control of the defendant, if it is satisfied (on the information contained in or accompanying the application) that:
(a) the defendant was a party to a scheme to avoid a liability (whether actual or potential) under Division 8 and obtained property under that scheme without giving sufficient consideration, and
(b) an order has been, or may be, made against the defendant under section 46A, and
(c) it is appropriate to make the restraining order in the circumstances of the case.
Without limiting this section, in considering whether to make a restraining order, the Supreme Court is to consider the effect of any proposed order on the defendant’s ability to pay his or her reasonable living expenses or those of his or her dependents or on the defendant’s ability to meet legal expenses.
The Supreme Court may not make a restraining order in relation to property if the property is affected by a restraining order in force under the Criminal Assets Recovery Act 1990 or the Confiscation of Proceeds of Crime Act 1989.
A restraining order may be made in relation to property under the Criminal Assets Recovery Act 1990 or the Confiscation of Proceeds of Crime Act 1989 even though the property is subject to a restraining order under this Act.
The Supreme Court may refuse to make a restraining order if the person making the application refuses or fails to give to the Court such undertakings as the Court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making or operation of the order.
If the Supreme Court makes a restraining order, it may make any ancillary orders that it considers appropriate.
Without limiting the generality of subsection (1), ancillary orders may include any one or more of the following:
(a) an order for the examination on oath of:
(i) the defendant, or
(ii) another person,
before the Supreme Court, or an officer of the Court prescribed by rules of court, concerning the affairs of the defendant, including the nature and location of any property of the defendant,
(b) an order varying the restraining order in respect of the property to which it relates,
(c) an order varying any conditions to which the restraining order was subject.
An ancillary order may be made on application:
Judicial notice is to be taken of the signature of the Chairperson or the Registrar when appearing on a document issued by the Tribunal.
Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.
Section 27 (2) (b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following:
(a) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),
(b) the publication of matter while giving evidence before the court or tribunal,
(c) the publication of matter in any judgment, order or other determination of the court or tribunal.
The term
The Victims Compensation Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under clause 16 (1) (b) and (c) of this Schedule to take evidence from witnesses under oath.
This Part applies to hearings conducted by the Tribunal in connection with an application for statutory compensation.
In hearings under this Part, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
Hearings under this Part must be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
An applicant for statutory compensation is entitled to be represented in any hearing under this Part by an Australian legal practitioner or, by leave of the Tribunal, by an agent.
Hearings under this Part must be conducted in the presence of the public unless:
(a) criminal proceedings are pending against any person in respect of substantially the same facts as those alleged in the application for statutory compensation, or
(b) the Tribunal, in a particular case, determines that the proceedings must be closed to the public.
A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any hearing under this Part, or
(b) to whom any hearing under this Part relates, or
(c) who is mentioned or otherwise involved in any hearing under this Part,
whether before or after the hearing is completed.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
This clause does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this clause.
For the purposes of this clause, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
In any hearing under this Part, the applicant for statutory compensation may, by leave of the Tribunal:
(a) call and examine any witness, and
(b) give evidence on oath, and
(c) produce documents and exhibits to the Tribunal, and
(d) otherwise adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the hearing.
For the purposes of any hearing under this Part, the Tribunal may:
(a) by instrument in writing require any person on whom the instrument is served personally or by post:
(i) to appear at the hearing for the purpose of giving evidence, or
(ii) to produce to the Tribunal any document that is relevant to the hearing,
at a time, date and place specified in the instrument, and
(b) require a person who appears at the hearing to be sworn for the purpose of giving evidence on oath, and
(c) administer such an oath.
When a document is produced to the Tribunal in accordance with a requirement under this clause, the Tribunal may take possession of the document for such period as it considers necessary for the purpose of completing the hearing.
The functions conferred on the Tribunal by subclause (1) (a) may be exercised on behalf of the Tribunal by the Registrar of the Tribunal.
The Tribunal may require a person who appears at a hearing under this Part to answer any question that is reasonably related to the hearing.
A person may refuse to answer such a question on the ground that the answer might tend to incriminate the person.
A person must not:
(a) fail to comply with a requirement made of the person under clause 16 or 17 by the Tribunal to the extent to which the person is lawfully able to comply with the requirement, or
(b) not having been sworn, make a statement that the person knows to be false or misleading in a material particular when the person is appearing at a hearing under this Part.
Maximum penalty: 5 penalty units.
A person (other than a public servant) who is required to appear or to give evidence at a hearing under this Part is entitled to be paid such allowances and expenses as may be prescribed by the rules.
The Tribunal may from time to time adjourn a hearing under this Part to such times, dates and places, and for such reasons, as it thinks fit.
Without limiting the generality of subclause (1), the Tribunal may adjourn a hearing under this Part pending the determination of criminal proceedings against a person in respect of substantially the same facts as those alleged in the application for statutory compensation.
The Tribunal may dismiss proceedings before it if, before or during a hearing under this Part, it is satisfied:
(a) that the proceedings are frivolous or vexatious, or
(b) that, for any other reason, the proceedings should not be entertained.
A person must not, in a hearing under this Part:
(a) wilfully insult the Tribunal, or
(b) wilfully misbehave during the hearing, or
(c) wilfully and without lawful excuse interrupt the hearing, or
(d) without lawful excuse disobey a direction of the Tribunal during the hearing.
Maximum penalty: 10 penalty units.
The Tribunal may direct a person who does any thing referred to in subclause (1) to leave the place where the hearing is being conducted.
A person must not fail to comply with a direction under this clause.
Maximum penalty: 10 penalty units.
The Tribunal may, of its own motion or at the request of an assessor and for the purposes of the determination of an application for statutory compensation or a related appeal by the assessor or the Tribunal by instrument in writing require any person on whom the instrument is served personally or by post to produce to the Tribunal any document that is relevant to the application, at a time, date and place specified in the instrument.
When a document is produced to the Tribunal in accordance with a requirement under this clause, the Tribunal may take and keep possession of the document, or, in the case of a document requested on behalf of an assessor, allow the assessor to keep possession of the document, for such period as the Tribunal considers necessary for the purpose of determining the application.
The functions conferred on the Tribunal by subclause (1) may be exercised on behalf of the Tribunal by the Registrar of the Tribunal.
A person must not fail to comply with a requirement made of the person under clause 23 to the extent to which the person is lawfully able to comply with the requirement.
Maximum penalty: 5 penalty units.
(Section 89)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• Victims Compensation Act 1996
• Victims Compensation Amendment Act 1998
• Victims Compensation Amendment Act 2000
• Courts Legislation Amendment Act 2001 (but only to the extent that it amends this Act)
• Victims Support and Rehabilitation Amendment Act 2006
• Courts and Crimes Legislation Further Amendment Act 2010
• Courts and Other Legislation Further Amendment Act 2011 (but only to the extent it amends this Act)
Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
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.
In this Part:
An application for compensation made under Part 3 of the repealed Act before the date of assent to this Act and not finally disposed before that date is to continue to be dealt with in accordance with the repealed Act.
An application for compensation may be made under Part 3 of the repealed Act after the date of assent to this Act and before the end of the period of 4 months after that date, but may not be made under that Part after the end of that period. Any such application is to be dealt with in accordance with the repealed Act.
Subclause (2) applies so as to authorise an application under Part 3 of the repealed Act only if the act of violence (and any related act of violence) to which the application relates occurred before the date of assent to this Act.
An application referred to in subclause (2) of a secondary victim of an act of violence may only be dealt with if:
(a) such an application has also been made by a primary or other victim (other than a secondary victim) of that act of violence, or
(b) the Tribunal is satisfied that an application for statutory compensation by the primary or other victim will not be made under this Act or the repealed Act.
(Repealed)
This Act extends, subject to this Act, to an act of violence that occurred before the commencement of this Act (other than an act of violence in respect of which an application for compensation has been made and dealt with under the repealed Act).
Despite clause 4, section 21 extends to a victim of an act of violence (including a victim within the meaning of that section) in respect of which an application for compensation has been made and dealt with under the repealed Act.
The Victims Compensation Tribunal constituted by this Act is a continuation of the Victims Compensation Tribunal constituted under the repealed Act.
A person holding office as a member or Chairperson of the Tribunal, immediately before the repeal of the repealed Act, is taken to have been appointed as a member or Chairperson of the Tribunal under this Act.
A Magistrate who was an authorised Magistrate under the repealed Act, immediately before the repeal of the repealed Act, is taken to be an authorised Magistrate under this Act.
The staff of the Tribunal employed under the repealed Act is taken to be staff employed for the purposes of this Act.
The Victims Compensation Fund Corporation constituted by section 66 of this Act is a continuation of, and the same legal entity as, the corporation by that name constituted by the repealed Act.
The Victims Compensation Fund constituted by the repealed Act becomes, on the repeal of that Act, the fund by that name constituted by section 67 of this Act.
Division 8 of Part 2 of this Act applies to awards of compensation made under Part 2 of this Act, and to awards of compensation made under Part 3 of the repealed Act that were not subject to recovery action under the repealed Act before its repeal.
Part 5 of the repealed Act continues to apply to any recovery action taken under the repealed Act before its repeal.
However, the provisions of Division 8 of Part 2 of this Act apply to any proceedings for recovery of an amount payable under a determination for restitution under Part 5 of the repealed Act.
Part 4 of this Act applies to persons convicted or found guilty of offences after the commencement of that Part even though the proceedings were commenced before that commencement.
A direction for the payment of compensation given under Part 6 of the repealed Act may be recovered as if it had been given under Part 4 of this Act.
Part 5 of this Act applies to persons convicted or found guilty of offences after the commencement of that Part even though the proceedings were commenced before that commencement.
A levy imposed by the operation of section 65C of the repealed Act may be recovered as if it had been imposed by Part 5 of this Act.
In this Part:
Section 19A, as inserted by the amending Act, applies to amounts of statutory compensation awarded where the application for compensation is made after the commencement of that section, whether or not the act of violence that resulted in the injury for which the compensation is awarded occurred before or after that commencement.
The provisions of Schedule 1 relating to shock that were omitted by the amending Act continue to have effect in the case of any person who applied for statutory compensation for the compensable injury of shock before the omission of those provisions.
A person may apply for statutory compensation for a psychological or psychiatric disorder, or for the compensable injury of domestic violence, whether or not the injury resulted from an act of violence that occurred before the insertion of those categories of injury in Schedule 1.
This clause does not affect the operation of section 26.
The Director may make a provisional order for restitution under section 46A, as inserted by the amending Act, whether or not the order is based on an order that was granted, or a transaction relating to property that occurred, before the commencement of that section.
An application may be made under section 58A, as inserted by the amending Act, to register a restitution order whether or not the restitution order was made before or after the commencement of that section.
An application may be made for an order under Division 9 of Part 2 concerning the property of a person whether or not:
(a) the person was charged with, or convicted of, an offence before or after the commencement of that Division, or
(b) the property was (in the case of an order under section 58M) disposed of or dealt with before or after the commencement of that Division.
Clause 5 (3) of Schedule 1 to this Act (as inserted by Schedule 1 [22] to the Victims Compensation Amendment Act 2000) applies to or in respect of an application for statutory compensation that is, or was, lodged on or after the day on which the Bill for that Act was introduced into the Legislative Assembly.
Date of introduction: 31.5.2000.
Schedule 1 [9] to the Victims Compensation Amendment Act 2000 applies to or in respect of an application for statutory compensation whether lodged before or after the commencement of that item.
Any rules made under section 87 and in force immediately before the amendment of that section by the Victims Compensation Amendment Act 2000 are taken to have been made under section 87 as amended by that Act.
Section 84, as amended by Schedule 8 to the Courts Legislation Amendment Act 2001, applies to and in respect of an application for statutory compensation or for payment for approved counselling services, whether made before, on or after the commencement of that amendment.
Despite clause 3 of this Schedule, section 84, as amended by Schedule 8 to the Courts Legislation Amendment Act 2001, applies to and in respect of an application for compensation made under Part 3 of the Victims Compensation Act 1987 as if that application were an application for statutory compensation made under this Act.
In this Part:
Except as otherwise provided by this Part, an application for statutory compensation lodged under this Act, but not finally determined, before the commencement of a provision of the amending Act is to continue to be dealt with in accordance with the Act as in force immediately before the commencement of the provision.
The amendment made to section 5 by the amending Act extends to an act of violence that occurs before the commencement of the amendment.
A primary victim of an act of violence is eligible to receive statutory compensation for prescribed expenses in respect of an act of violence only if the act of violence occurs after the commencement of section 14A (as inserted by the amending Act).
Section 20 (3A), as inserted by the amending Act, extends to the determination of whether or not statutory compensation is payable in relation to an application for statutory compensation that is lodged, but not finally determined, before the commencement of that subsection.
Section 30 (1) (b1) and (2A), as inserted by the amending Act, extend to the determination of an application for statutory compensation lodged, but not finally determined, before the commencement of those provisions, where the act of violence concerned involves domestic violence or sexual assault.
The definition of
Section 30 (4A), as inserted by the amending Act, extends to an application for statutory compensation lodged, but not finally determined, before the commencement of that subsection.
Section 31, as amended by the amending Act, extends to an application for statutory compensation lodged, but not finally determined, before the commencement of those amendments.
Section 33A, as amended by the amending Act, applies only if the primary victim concerned died as a direct result of an act of violence occurring after the commencement of section 14A (as inserted by the amending Act).
Any amount that a person was liable to pay under section 79 (1) immediately before the commencement of the amendments made to this Act by the Courts Legislation Amendment Act 2010 continues to be payable after the commencement of those amendments.
In this Part:
The amendments made to section 5 by the amending Act extend to an act of violence that occurred before the commencement of those amendments in respect of which an application for statutory compensation:
(a) is lodged on or after that commencement, or
(b) was lodged, but not determined by the Tribunal or a compensation assessor at any time, before that commencement.
In this clause,
Any application for statutory compensation for prescribed expenses that was lodged, but not finally determined, before the commencement of the amendments to section 14A by the amending Act is to be dealt with under this Act as if it were an application for Victims Assistance.
Any application determined under subclause (2) is taken to have been determined as an application for Victims Assistance.
Any application for statutory compensation for prescribed expenses that was finally determined before the commencement of the amendments made to section 14A by the amending Act is taken to have been finally determined as an application for Victims Assistance.
Sections 15 and 16, as amended by the amending Act, extend to:
(a) any secondary victim or family victim who died before the commencement of those amendments, and
(b) any application that was pending immediately before the commencement of those amendments and was lodged by or on behalf of a secondary victim or family victim who died before, or who dies on or after, the commencement of those amendments.
Section 21, as amended by the amending Act, extends to any application for payment for approved counselling services that was made to the Director before the commencement of those amendments, but does not affect any decision made under that section before that commencement.
Section 23, as amended by the amending Act:
(a) extends to any person whose application for statutory compensation was finally determined by the dismissal of the application before the commencement of those amendments, and
(b) affects any further application made by or on behalf of the person after that dismissal, whether the further application was made before or after the commencement of those amendments.
Section 23A, as inserted by the amending Act:
(a) extends to any person who, before the commencement of that section, was awarded statutory compensation, and
(b) affects any claim for statutory compensation that was made before that commencement, but was not determined by the Tribunal or a compensation assessor at any time before that commencement.
Section 26, as amended by the amending Act, extends to any application for statutory compensation that was lodged out of time by or on behalf of a family victim, but was not the subject of any determination by the Director under that section, before the commencement of those amendments.
Section 26A, as inserted by the amending Act, extends to any application for statutory compensation that was lodged, but not finally determined, before the commencement of that section.
Section 26B, as inserted by the amending Act, extends to any application for statutory compensation that was lodged, but not finally determined, before the commencement of that section.
Section 35, as amended by the amending Act, extends to any application for statutory compensation that was lodged before the commencement of those amendments, but does not extend to any application that was determined by the Tribunal or a compensation assessor at any time before that commencement.
Section 36 (1A) (b), as inserted by the amending Act, extends to an applicant whose application for statutory compensation was lodged before the commencement of that paragraph, but does not extend to any applicant whose application was determined by the Tribunal or a compensation assessor at any time before that commencement.
Section 38, as amended by the amending Act, extends to any matter the subject of an appeal or reference to the Tribunal under Division 6 of Part 2, before the commencement of those amendments, but does not extend to any matter that the Tribunal has proceeded to determine, but has not disposed of, before that commencement.
Section 78 (1), as inserted by the amending Act, extends to any offence committed by a person before the commencement of the subsection, whether or not the proceedings concerned were commenced before that commencement, but does not extend to an offence for which the person was convicted before that commencement.
Part 5 of this Act (as amended by the Courts and Other Legislation Further Amendment Act 2011) applies to a person convicted of an offence (within the meaning of that Part as amended) after the commencement of the amendment even if the offence was committed before that commencement.
(Repealed)
(a) an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999, and
(b) (except in Part 4) an order made under section 33 of the Children (Criminal Proceedings) Act 1987 (other than section 33 (1) (a) (i)).
(a) actual physical bodily harm,
(b) psychological or psychiatric harm,
(c) (Repealed)
but does not include injury arising from loss or damage to property.
(a) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent (within the meaning of section 61R of the Crimes Act 1900) or with consent obtained by means of a non-violent threat (within the meaning of section 65A of the Crimes Act 1900), or
(b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having an intellectual disability (within the meaning of section 66F of the Crimes Act 1900), or
(c) self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat (within the meaning of that section), or
(d) the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person, or
(e) participation with a child under the age of 18 years in an act of child prostitution (within the meaning of section 91C of the Crimes Act 1900) or the use of a child under the age of 18 years for the production of child abuse material (within the meaning of section 91G of the Crimes Act 1900), or
(f) the intimidation or stalking of a person (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) in apparent contravention of an apprehended violence order in force under that Act, or
(g) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:
(i) a person who is or has been married to the person who committed the offence,
(ii) a person who is or has been a de facto partner of the person who committed the offence,
(iii) a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
(iv) a person who, at the time of the offence, was living in the same household as the person who committed the offence,
(v) a person who, at the time of the offence, was living as a long-term resident in the same residential facility as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987),
(vi) a person who, at the time of the offence, had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who committed the offence,
(vii) a person who is or has been a parent, guardian or step-parent of the person who committed the offence,
(viii) a person who is or has been a child or step-child of the person who committed the offence, or some other child of whom the person is the guardian,
(ix) a person who is or has been a brother, sister, half-brother, half-sister, step-brother or step-sister of the person who committed the offence.
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