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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
This Bill is cognate with the Victims Rights Bill 1996.
The objects of the Bill are as follows:
(a)
to give effect to a statutory scheme of compensation for victims of
crimes of violence,
(b)
to enable compensation paid under the statutory 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 punishable by
imprisonment for the purpose of funding the statutory 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.
* Amended in committee--see table at end of volume.
The principal changes made under the revised scheme are as follows:
to confine the expression "act of violence" (which gives rise to a right
to statutory compensation) to acts that are of a violent nature, that
comprise sexual assault or that involve certain apprehended domestic
violence relating to intimidation or stalking,
to prescribe the personal injuries for which compensation is payable
and the standard amount to be paid for each injury (the "schedule of
compensable injuries"),
to provide for the initial determination of applications for statutory
compensation to be made by compensation assessors, subject to
guidelines issued by the Victims Compensation Tribunal and a full
appeal to the Tribunal by any person aggrieved by a decision of a
compensation assessor (with a further right of appeal to the District
Court on a question of law),
to confer a right to payment for counselling of victims of crime,
to give family members of deceased victims an entitlement to the
maximum amount of compensation of $50,000 and to give family
members who are financially dependent on the deceased victim
priority over other family members,
to restrict the grounds on which a person may claim compensation as a
secondary victim of an act of violence to those who actually witness
the act of violence, but to enable the parents of children to claim for
injuries suffered as a result of subsequently becoming aware of the act
of violence,
to clarify the circumstances in which multiple awards of compensation
are not available to the same person in relation to an act of violence
that comprises a series of related acts,
to provide that convicted prisoners will not be eligible to receive
statutory compensation,
to increase, from $200 to $2,400, the threshold below which statutory
compensation is not payable,
to streamline the procedures for the recovery of compensation from
persons found guilty of offences that have given rise to an award of
compensation,
Explanatory note page 2
(k) to increase the amount that a court can, on conviction, direct an
offender to pay to a victim by way of compensation for injury or loss
to the maximum amount under the Compensation scheme administered
by the Tribunal, namely, $50,000 (instead of $20,000 in the case of a
major offence and $1,800 in the case of a minor offence),
(l) to increase the compensation levy payable by certain offenders
convicted of an offence from $50 to $70 in the case of a conviction on
indictment and from $20 to $30 in the case of a summary conviction.
Preliminary
Clause 1 specifies the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation. Certain transitional arrangements are
to commence on the date of assent.
Clause 3 sets out the objects of the proposed Act.
Clause 4 provides that expressions used in the proposed Act have the
meanings given to them in the Dictionary at the end of the proposed Act.
Clause 5 defines act of violence for the purposes of the proposed Act and
deals with the circumstances in which a series of related Acts is to be treated
as a single act of violence for which only one award of compensation is
available.
Part 2
Statutory compensation scheme
Division 1
Victims eligible for statutory compensation
Clause 6 gives primary victims, secondary victims and family victims of
acts of violence an entitlement to statutory compensation.
Clause 7 defines a primary victim as a person who receives a compensable
injury (as set out in the schedule of compensable injuries) or who dies as a
direct result of an act of violence. The category includes certain law
enforcement victims.
Explanatory note page 3
Clause 8 defines a secondary victim as a person who receives a
compensable injury as a result of witnessing an act of violence (including, in
the case of a child victim, a parent suffering such an injury after becoming
aware of the act of violence).
Clause 9 defines a family victim as a member of the immediate family of a
primary victim who dies as a direct result of the act of violence. The category
of family members includes spouses, partners, parents, children and siblings.
Division 2
Schedule of compensable injuries
Clause 10 gives effect to the schedule of compensable injuries in
Schedule 1, containing descriptions of injuries and the standard amount of
compensation payable for each such injury.
Clause 11 enables the prescription of a standard amount or range of
amounts of compensation for all injuries received from a particular act of
violence (for example, sexual assault).
Clause 12 authorises the regulations to substitute or amend the schedule.
Clause 13 contains general provisions relating to the schedule, including
discounting for multiple injuries and compensation for injuries not
specifically described.
Division 3
Statutory compensation payable
Clause 14 entitles primary victims to compensation for compensable
injuries and compensation for financial loss.
Clause 15 entitles secondary victims to compensation for compensable
injuries and compensation for financial loss.
Clause 16 entitles family victims (without the need to establish injury) to
$50,000. If there are a number of family victims, the amount is to be shared
equally among them, except that dependent family members are to have
priority.
Clause 17 provides that compensation for compensable injuries is to be the
standard amount set out in the schedule of compensable injuries, unless the
amount is authorised to be reduced because of the conduct of the primary
victim or on certain other grounds.
Clause 18 provides that compensation for financial loss is for actual
expenses, actual loss of earnings and loss of personal effects. A limit of
$10,000 applies to all financial loss and a limit of $1,000 applies to any loss
Explanatory note page 4
of personal effects. The rate for loss of earnings is limited to the rate
prescribed for workers compensation after the first 26 weeks of incapacity.
Clause 19 limits the maximum amount of compensation payable to victims
arising from a single act of violence to $50,000. The limit applies to the
primary victim and all other victims claiming through that victim.
Clause
any
20 imposes a threshold of $2,400 on compensation payable to
victim (other than a family victim).
Clause 21 provides for special payments for counselling of victims.
Division 4 Persons not eligible for statutory compensation
Clause 22 provides that secondary or family victims are not eligible for
compensation if the primary victim through whom they claim is not eligible
to
compensation.
receive
Clause 23 provides for only one award of compensation for a single act of
violence
acts).
(including for a series of related
Clause 24 excludes from statutory compensation persons who claim court
awarded compensation under Part 4 of the proposed Act, persons injured or
killed in motor accidents, persons engaging in criminal behaviour and
convicted prisoners (other than fine defaulters or persons on remand).
Division 5
Applications for statutory compensation
Clause 25 enables an eligible victim (or a person on his or her behalf) to
lodge an application for statutory compensation with the Director of Victims
Compensation.
Clause 26 requires applications for compensation to be lodged within 2
years after the act of violence or, in the case of a family victim, the death of
the victim. The Director may in exceptional circumstances accept a late
application.
Clause 27 provides that applications for compensation are to be determined
by a compensation assessor without the conduct of a hearing into the matter.
Clause 28 enables the cornpensation assessor to require an applicant to
undergo a reasonable medical examination for the purposes of establishing
the claim for compensation.
Explanatory note page 5
Clause 29 provides for the determination of applications by a compensation
assessor in accordance with the proposed Act and the guidelines issued by
the Tribunal. Notice of the determination and the reasons for it is required to
be given to the applicant.
Clause 30 sets out reasons for reducing the amount of an award of
compensation or for a refusal to make an award. The reasons include
behaviour of the primary victim that contributed to the injury or death, a
failure to report the act of violence to the police within a reasonable time
having regard to the circumstances and participation by the applicant in the
act of violence. The clause also provides for regard to be had to the payment
of damages to the victim in civil proceedings, under workers compensation
legislation or under an insurance policy.
Clause 31 provides that, where the applicant is also involved in the act of
violence concerned, a proposed award can be reduced by the amount of a
proposed determination under Division 8 for restitution by the applicant.
Clause 32 provides for the payment an award of compensation to the
applicant or to the person on whose behalf the application was made.
Clause 33 authorises the making of interim awards of compensation in the
case of financial hardship, for the purposes of funeral expenses and in other
circumstances.
Clause 34 enables conditions to be imposed on the award of compensation.
Clause 35 deals with the award of costs to applicants in connection with
applications for compensation. Costs in accordance with the scale prescribed
by the compensation rules are payable whether or not proceedings are taken
before the Tribunal and even if an application is dismissed. The clause
enables complaints to be made against medical practitioners who charge
excessive fees for services they provide in connection with victims
compensation proceedings.
Division 6
Appeals and references to Tribunal and District
Court
Clause 36 gives an applicant for statutory compensation a right to appeal to
the Tribunal against any determination of a compensation assessor in respect
of the application.
Explanatory note page 6
Clause 37 enables a compensation assessor to have an application for
compensation referred to the Tribunal for determination if the assessor
considers that the matter requires a hearing. The clause also enables the
Chairperson of the Tribunal to refer a determination of an assessor to the
Tribunal for re-determination.
Clause 38 provides for the hearing of appeals and references by the
Tribunal. The Tribunal has all the powers and obligations imposed on the
assessor under the proposed Act when dealing with an application.
Clause 39 provides an appeal to the District Court from a decision of the
Tribunal on a question of law. The clause makes it clear that determinations
relating to the application of the schedule of compensable injuries, to whether
acts of violence are related or to the grant of leave for late applications are
not questions of law.
Clause 40 suspends payment of statutory compensation pending the
determination of any appeal.
Clause 41 makes the Compensation Fund Corporation the respondent to any
appeal
Division 7
Payment of Compensation
Clause 42 provides for the payment of
awards of statutory compensation,
costs and victims' counselling from the Victims Compensation Fund (or the
Consolidated Fund if that fund does not have sufficient money available).
Clause 43 provides that an award of statutory compensation does not
prevent civil proceedings in connection with the same matter but subrogates
any such right to damages to the State to the extent of the amount of statutory
compensation paid.
Clause 44 enables the recovery of statutory compensation from a fraudulent
applicant.
Division
offenders
8
Recovery of compensation from
Division, Clause 45 defines relevant expressions used in the
in Clause 46 provides that, where a person is convicted of an offence
respect of the act of violence giving rise to an award of statutory
compensation,
(of
the Director may make a provisional order for restitution
the amount of compensation) against the person so convicted.
Explanatory note page 7
Clause 47 enables a convicted person to object to a provisional order for
restitution.
Clause 48 provides that the Tribunal may confirm a provisional order if the
convicted person does not object to it.
Clause 49 provides that the Tribunal is to conduct a hearing to determine
whether to confirm a provisional order if the convicted person objects to it.
Clause 50 enables the Director and the convicted person to make an
arrangement for the payment of the amount of restitution under a provisional
order.
Clause 51 makes provision for the matters to be taken into account when the
Tribunal confirms a provisional order (including the financial means and the
culpability of the convicted person).
Clause 52 contains evidentiary and procedural provisions concerning
proceedings for the confirmation of a provisional order.
Clause 53 makes provision with respect to restitution orders consequent on
appeals made against the relevant order for compensation.
Clause 54 makes an order for restitution enforceable as a judgment debt
against the convicted person.
Clause 55 gives the convicted person the same right of appeal against a
restitution order as other persons in civil proceedings before Local Courts.
Clause 56 enables orders for restitution to be set aside by the Tribunal.
Clause 57 deals with civil proceedings in connection with the act of
violence to which the order for restitution relates.
Clause 58 provides the Director with access to information about the
whereabouts of an offender held by the police, the RTA and other
government agencies for the purposes of taking action against a convicted
person for restitution under this Division.
Part 3
Administration of statutory scheme
Division 1
Victims Compensation Tribunal
Clause 59 constitutes the Victims Compensation Tribunal (which is a
continuation of the existing Tribunal). The Tribunal consists of a Magistrate
appointed as Chairperson and such other Magistrates as may be appointed
from time to time.
Explanatory note page 8
Clause 60 provides that the Tribunal has the jurisdiction and functions
conferred by the proposed Act and is to act as quickly as possible.
Clause 61 enables the Chairperson of the Tribunal to authorise other
Magistrates to exercise the jurisdiction and functions of the Tribunal.
Clause 62 provides that the jurisdiction and functions of the Tribunal are
exercisable by a single member or authorised Magistrate.
Division 2
Director, assessors and other staff
Clause 63 provides for the appointment of a Director of Victims
Compensation, a Registrar of the Tribunal and other public service staff for
the purposes of the proposed Act.
Clause 64 provides for appointment of members of that staff as
compensation assessors. The clause declares that the Director is a
compensation assessor.
Clause 65 authorises the Tribunal to issue guidelines to compensation
assessors with respect to the exercise of their functions under the proposed
Act and enables the Director to allocate the work of the assessors (but
without any right to interfere with the determinations of assessors on
applications for statutory compensation).
Division 3
Victims Compensation Fund Corporation
Clause 66 continues the Victims Compensation Fund Corporation. The
Corporation is controlled by the Director-General of the Attorney General's
Department and is responsible for the management of the Victims
Compensation Fund and the payment of statutory compensation under the
proposed Act from that Fund.
Division 4
Victims Compensation Fund
Clause 67 continues the Victims Compensation Fund.
Clause 68 requires the payment into the Fund of the proceeds of drug
trafficking and other crimes that are confiscated under relevant legislation, of
money recovered from offenders in respect of whom awards of statutory
compensation have been made, of levies imposed on the conviction of
offenders and of money appropriated by Parliament for the purpose.
Explanatory note page 9
Clause 69 requires payment from the Fund of awards of statutory
compensation, of the costs of administration of the Tribunal and staff under
the proposed Act and of the costs of administration of the proposed Victims
of Crime Bureau and Victims Advisory Board under the proposed Victims
Rights Act 1996.
Part 4
Compensation awarded by court
Clause 70 defines an aggrieved person as a person who has suffered an
injury or loss as a result of an offence committed by a convicted person or
who is a member of the family of a person who has been killed as a result of
such an offence.
Clause 71 authorises the court that convicts a person to direct the payment
of compensation to an aggrieved person from the property of the convicted
person. The maximum amount of compensation is $50,000.
Clause 72 deals with the application of the maximum amount of
compensation and other restrictions on the court's power to direct payment of
compensation.
Clause 73 specifies the factors to be taken into account by the court.
Clause 74 provides for the payment of the amount directed to be paid.
Clause 75 enables the sum directed to be paid to be enforced as a judgment
debt.
Clause 76 deals with the effect of a direction in subsequent civil
proceedings.
Clause 77 limits rights of appeal against directions.
Part 5
Compensation levies
Clause 78 applies the Part to offences punishable by imprisonment.
Clause 79 imposes on convicted persons a levy of $70 for indictable
offences and a levy of $30 for summary offences. The levy is payable into the
Compensation Fund that is used to fund the statutory scheme of
compensation.
Clause 80 provides for the enforcement of the levy.
Clause 81 deals with the effect, on the payment of the levy, of appeal
proceedings in respect of the conviction.
Explanatory note page 10
Part 6
Miscellaneous
Clause 82 declares that the proposed Act binds the Grown.
Clause 83 requires the Chairperson of the Tribunal to provide annual reports
to
Minister.
Parliament and any special reports required by the
Clause 84 makes material relating to applications for statutory
compensation inadmissible in criminal proceedings.
Clause 85 limits the liability of the Tribunal and others engaged in the
administration of the proposed Act for acts done in good faith and with
reasonable care.
Clause
of
86 provides for offences against the proposed Act to be disposed
summarily.
Clause 87 empowers the making of compensation rules dealing with the
practice and procedure of the Tribunal and other matters.
the Clause 88 empowers the making of regulations for the purposes of
proposed Act.
transitional Clause 89 gives effect to the Schedule of savings and
provisions.
Clause
1987.
90 repeals the Victims Compensation Act
Clause
Acts.
91 gives effect to the Schedule of amendments of other
Clause
years.
92 provides for the review of the proposed Act after 5
Schedules
Schedule 1 contains the schedule of compensable injuries.
Schedule 2 contains provisions relating to the members and procedure of the
Tribunal.
Schedule 3 contains savings and transitional provisions.
Schedule 4 contains amendments to other Acts. The proposed amendment to
the Fines and Penalties Act 1901 will enable compensation levies imposed
by the proposed Act to be remitted under that Act in the same way as
penalties may be remitted. The proposed amendment to section 44 of the
Prisons Act 1952 will enable prisoners to be brought to attend the Tribunal's
hearings under the proposed Act.
Dictionary
The dictionary defines various words and expressions used in the proposed
Act.
Explanatory note page 11