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Bill 1998
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
and
to reduce the maximum number of additional paid hours of counselling
for victims from 20 hours to 6 hours, while retaining the ability of
family victims or victims of sexual assault offences or other persons
demonstrating need. to apply for additional paid counselling. and
to extend the period during which a provisional order for restitution
may be made against a person to 2 years after the date on which the
person was convicted of the offence. and
to enable persons who obtain property as part of
a scheme to avoid
paying restitution to be made subject to restitution orders. and
Amended in committee--see table at end of volume.
to enable restitution orders to be registered so as to create charges on
property, and
to enable restraining orders to be obtained to prevent persons who are
or may become subject to a restitution order from disposing of
property in order to avoid paying restitution and to enable transactions
entered into to avoid restitution or restraining orders to be set aside,
and
to establish injuries inflicted in circumstances of domestic violence as
a new category of compensable injury under the statutory
compensation scheme, and
to remove statutory compensation for the compensable injury of shock
and replace it with a new injury category of psychological or
psychiatric disorder, and
to require applications for compensation for psychological or
psychiatric disorder to be accompanied by assessments by approved
medical practitioners or psychologists, and
to make other minor or consequential amendments as well as savings
and transitional provisions as a consequence of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Victims Compensation Act 1996 set out in Schedule 1.
Schedule 1 Amendments
Deduction from compensation
Schedule 1 [2] provides for the deduction of the amount of $750 (or such
other amount as may be prescribed by the regulations) from any statutory
compensation award that is less than $20.001 (or such other amount as may
be prescribed by the regulations). The deduction will not apply to an award
made to a family victim and will not be taken into account for the purpose of
determining whether compensation is payable under section 20 (Threshold
amount of compensation). The deduction will not apply unless the total
amount of compensation awarded to a primary and all secondary victims. at
the time an award is made. is less than $20,001.
Explanatory note page 2
Payments for counselling of victims
Currently, a victim who is eligible for statutory compensation may apply for
payment for approved counselling services for an initial 2 hours. An
additional 20 hours may be approved by a compensation assessor and further
periods may be approved by the Director of Victims Compensation.
Schedule 1
[3] and
[7] extend the category of persons who may apply for
payment for approved counselling services to any person who has suffered an
injury as a consequence of an act of violence, whether or not the person has
received a compensable injury. Schedule 1
[7] also excludes persons injured
in motor accidents, offenders and convicted inmates from applying for
payment of approved counselling services.
Schedule 1
[4] reduces the maximum amount of paid counselling services
after the initial 2 hour period to 6 hours but allows a compensation assessor
to approve further periods of counselling for family victims, victims of sexual
assaults or other victims who demonstrate a special need for additional
counselling. Schedule 1 [5] makes a consequential amendment.
Schedule 1 [6] enables the review by the Director of a decision by a
compensation assessor about additional hours of paid counselling.
Schedule 1 [8] inserts proposed section 21A which continues the power of
the Director to approve counsellors who may provide approved counselling
services and which enables such an approval to be subject to conditions.
Schedule 1 [7] makes a consequential amendment.
Restitution orders
Schedule 1 [11] includes the period of 2 years after a person is convicted of
an offence in the periods to be taken into account when considering whether
time has run out to obtain a provisional order for restitution.
Schedule l [12] inserts proposed section 46A which enables a provisional
restitution order to be made by the Director of Victims Compensation against
a person (not being an offender) who has obtained property as part of a
scheme to avoid liability under the restitution provisions of the Principal Act
and who has not paid sufficient consideration for the property.
Schedule l [14] empowers the Tribunal to confirm the provisional order for
restitution as a restitution order if it is satisfied that the grounds for making
the order have been established.
Schedule 1 [10] [13] and [15] make consequential amendments.
Explanatory note page 3
Charges on property
Schedule
1 [16] inserts proposed sections
58A and
58B. Proposed section
58A enables the Director of Victims Compensation to apply to have the
Registrar-General register a restitution order in relation to land owned by the
person subject to the order. The effect of registration will be to create a
charge on the land to secure payment to the Compensation Fund Corporation
of the amount payable under the restitution order. Proposed section 58B
provides for cancellation of the charge by the Compensation Fund
Corporation. Schedule
1 [9] makes a consequential amendment.
Restraining orders and other property orders
Schedule
1 [17] inserts proposed Division 9 of Part 2 (proposed sections
58C58M). The proposed Division contains a scheme that enables restraining
orders to be obtained to prevent persons who may be, or who are. subject to
restitution orders under the Principal Act from disposing of property so as to
avoid paying restitution. The proposed Division also contains provisions
enabling orders to be made setting aside certain transactions contravening
restraining orders or entered into for the purpose of avoiding payment of
restitution.
Proposed section
58C applies the proposed Division to a person 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, and to a
person convicted of an offence in relation to which such an act of violence
occurred. The proposed section will also apply to a person who has obtained
property as part of
a scheme to avoid liability under the restitution provisions
of the Principal Act. The proposed section also contains other interpretation
proivisions.
Proposed section 58D defines a restraining order as an order directing that
property of a defendant is not to be disposed of. or otherwise dealt with, by
the defendant or
any other person. except in such manner and in such
circumstances (if any) as are specified in the order.
Proposed section
58E entitles an appropriate officer (that is, the Director of
Victims Compensation, the Director of Public Prosecutions, the
Commissioner of Police or any other person prescribed by the regulations) to
apply to the Supreme Court for a restraining order. The Court may require
notice to be given to persons who have an interest in the property or part of it
of the application and such persons may appear and adduce evidence.
Explanatory note page 4
Proposed section
58F enables the Supreme Court to make a restraining order
if satisfied that the criteria for the application have been met and that it is
appropriate in the circumstances to make the order. The Court is also to
consider the defendant's circumstances. A restraining order cannot be made if
there is already a restraining order in force under the Criminal Assets
Recovery Act
1990 or the
Confiscation of Proceeds
of Crime Act 1989.
Proposed section
58G enables the Supreme Court to refuse to make a
restraining order if the person applying for the order fails to give
undertakings considered appropriate by the Court with respect to the payment
of damages or costs.
Proposed section
58H confers power on the Supreme Court to make ancillary
orders.
Proposed section 58I requires authorities to register restraining orders when
charges over property may be registered and provides for the consequences of
registration. The clause also enables the lodging of caveats in respect of the
property concerned.
Proposed section 58J gives the Supreme Court power to revoke a restraining
order on the application of a person in relation to whose property it was made
or on the application of an appropriate officer.
Proposed section
58K sets out when a restraining order ceases to be in force.
Proposed section
58L makes it an offence to knowingly contravene a
restraining order and imposes a maximum penalty of the value of the
property or 2 years' imprisonment. or both. The proposed section also makes
it an offence to knowingly dispose of, or otherwise deal with. property for the
purpose of avoiding a liability (whether actual or potential) under the
restitution provisions of the Principal Act and imposes a maximum penalty of
the value of the property or 2 years' imprisonment. or both. Schedule
l [18]
requires the penalties to be paid into the Compensation Fund.
Proposed section
58M enables an application to be made to have any
disposition of or dealing with property that contravenes a restraining order set
aside if the disposition or dealing was not done in good faith or was not for
sufficient consideration. The proposed section also enables the Supreme
Court to make an order setting aside a disposition of, or dealing with.
property if
a restraining order may be sought against the property, the
disposition or dealing occurred before a
restraining order was obtained and
the disposition or dealing was not done in good faith or was not for sufficient
consideration. The proposed section does not affect the rights of a person
who obtained property from a person in good faith and gave consideration
that was at least as valuable as the market value of the property at the time of
its transfer.
Explanatory note page 5
Public trustee fees
Schedule 1 [19] enables fees to which the Public Trustee is entitled under the
Confiscation of Proceeds of Crime Act 1989 to be paid from the
Compensation Fund.
New compensable injury of domestic violence
Schedule 1
[22] inserts in the Schedule of compensable injuries the injury of
domestic violence, consisting of:
(a) injury resulting from an act that occurred in the commission of an
offence arising, in the opinion of a compensation assessor or other
person determining whether statutory compensation is available, in a
domestic violence context, or
(b)
injury arising from the intimidation or stalking of a person (within the
meaning of section
562A of the Crimes Act 1900) in apparent
contravention of an apprehended violence order in force under Part
15A of that Act.
Guidelines may be issued by the Tribunal as to the circumstances of
paragraph (a). Schedule 1 [1], [30] and [31] make consequential
amendments.
The range of compensation payable for such an injury will be
$2.400$10.000 (see Schedule 1 [23]).
Nervous shock and psychological or psychiatric disorders
Currently. statutory compensation is payable for the injury of shock. This
injury category is to be repealed and replaced by a new injury category of
psychological or psychiatric disorder. Statutory compensation may still be
obtained for injuries of that kind in respect of injuries suffered in. and
covered by, the global categories of sexual assault and domestic violence.
Schedule l [21] requires a person applying for statutory compensation for
the compensable injury of psychological or psychiatric disorder to obtain an
assessment from a list of qualified persons designated by the Director of
Victims Compensation. The item also repeals the separate injury category of
shock.
Schedule 1 [24] inserts in the Table of compensable injuries the injury of
psychological or psychiatric disorder. This covers chronic disorders that are
severely disabling ($30,000$50,000 compensation).
Schedule 1 [20], [25], and [29] make consequential amendments.
Explanatory note page 6
Production of documents
Schedule 1
[26] enables the Tribunal to require the production of documents
to enable assessors to determine applications for statutory compensation and
for the purposes of other matters dealt with by the Tribunal.
Savings and transitional provisions
Schedule 1 [27] enables savings and transitional regulations to be made
consequent on the enactment of the proposed Act.
Schedule 1 [28] inserts savings and transitional provisions consequent on the
enactment of the proposed Act. In particular, the provisions apply the
procedures relating to restraining orders and other property to transactions
and other matters occurring before the commencement of the proposed Act.
Explanatory note page 7