This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are to implement key recommendations from the report of the
statutory review of the Victims Support and Rehabilitation Act 1996 (the Principal
Act) and the Victims Rights Act 1996, and to make other reforms to those Acts and
the Crimes (Sentencing Procedure) Act 1999.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act.

Clause 3 is a formal provision that gives effect to the amendments to the Victims
Support and Rehabilitation Act 1996 set out in Schedules 1 and 3.

Clause 4 is a formal provision that gives effect to the amendments to other Acts set
out in Schedule 2.

Clause 5 is a formal provision that gives effect to Schedule 4. Schedule 4 comprises
the proposed Victims Support and Rehabilitation Regulation 2006 that is to have
effect as a regulation under the Principal Act (as amended by the proposed Act).

Clause 6 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendments to Victims Support and
Rehabilitation Act 1996
Statutory compensation for prescribed expenses
Schedule 1 [4] inserts proposed section 14A into the Principal Act. The proposed
section provides that the statutory compensation for which a primary victim is
eligible includes statutory compensation for prescribed expenses.

Under the proposed section, statutory compensation for prescribed expenses is
compensation for actual expenses of such kinds as are prescribed by the regulations
and incurred by a primary victim of an act of violence as a direct result of the act of
violence. The actual expenses concerned are prescribed by the proposed Victims
Support and Rehabilitation Regulation 2006 set out in Schedule 4. The maximum
amount that may be awarded under the proposed section in respect of an act of
violence is $1,500. This amount may be varied by the regulations.

Schedule 1 [7], [11], [14] and [20] provide for amendments to the Principal Act that
are consequential on the amendment provided for by Schedule 1 [4].

Schedule 1 [16] inserts proposed section 23 (1A) into the Principal Act. Schedule 1
[15] provides for an amendment that is consequential on the amendment to section
23 of the Principal Act that is made by Schedule 1 [16].

Currently, a primary victim of an act of violence can be awarded up to $50,000 as
statutory compensation, comprising (under section 14 of the Principal Act):

(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.

Currently also, under section 23 of the Principal Act, a person is not eligible to
receive more than one award of statutory compensation in respect of the same act of
violence. Under proposed section 23 (1A), a primary victim is not prevented from
being awarded statutory compensation to which section 14 of the Principal Act
applies in addition to statutory compensation for prescribed expenses.

However, to prevent double dipping, proposed section 14A provides that statutory
compensation for prescribed expenses is not payable to a primary victim who has
already been awarded statutory compensation to which section 14 of the Principal
Act applies. Further, under the amendment to section 14 provided for by Schedule 1
[3], statutory compensation to which that section applies is not payable for financial
loss to the extent that statutory compensation for prescribed expenses has been
awarded for that loss.

Under section 26 of the Principal Act, an application for statutory compensation must
be lodged within 2 years after the relevant act of violence unless leave is given for
the acceptance of the application after that period.

Schedule 1 [18] inserts proposed section 26 (2A) into the Principal Act. The
proposed subsection provides that leave may not be given for the acceptance of an
application for statutory compensation lodged out of time if the application is for
statutory compensation for prescribed expenses.

Under section 20 of the Principal Act, no statutory compensation may be awarded to
a victim unless the total amount of compensation payable to the victim, as
compensation for compensable injuries, is at least $7,500. A primary victim of an act
of violence who is not entitled to statutory compensation to which section 14 applies
because of the application of section 20 may, however, be awarded statutory
compensation for prescribed expenses.

Schedule 1 [19] inserts proposed section 29 (1AA) into the Principal Act. The
proposed subsection deals with a case in which an applicant for statutory
compensation has applied for statutory compensation to which section 14 applies and
is not eligible to receive that kind of compensation (solely because of the operation
of section 20), but is eligible to receive statutory compensation for prescribed
expenses. In such a case, the compensation assessor may determine the application
as an application for statutory compensation for prescribed expenses.

Schedule 1 [31] inserts proposed section 35 (8) and (9) into the Principal Act. Under
proposed section 35 (8), an applicant for statutory compensation for prescribed
expenses is not generally entitled to receive costs in respect of the application.

However, in the case of an application that has been determined as an application for
statutory compensation for prescribed expenses because of the application of
proposed section 29 (1AA) (as inserted by Schedule 1 [19]), the applicant may be
awarded his or her costs if the Tribunal or compensation assessor concerned is of the
opinion that the special circumstances of the case justify such an award being made.

Schedule 1 [33] inserts proposed section 35A into the Principal Act. The proposed
section enables the Director, on the application of an applicant for statutory
compensation for prescribed expenses, to correct any miscalculation in the amount
of an award of that kind of compensation. The proposed section enables an
application for the correction of such a miscalculation to be made within 28 days
after the relevant notice of determination was duly served.

Schedule 1 [32] provides for an amendment that is consequential on the amendment
provided for by Schedule 1 [33].

Schedule 1 [34] inserts proposed section 36 (1A) into the Principal Act. The
proposed subsection prevents an applicant for statutory compensation for prescribed
expenses from appealing to the Tribunal for the correction of a miscalculation in the
amount awarded as statutory compensation for prescribed expenses.

Schedule 1 [37] inserts proposed section 42 (1A) into the Principal Act. The
proposed subsection requires the Director, Victims Services, after an award of
statutory compensation for prescribed expenses is made, to forward to the
Compensation Fund Corporation a copy of the relevant notice of determination.

Under section 42 (2) of the Principal Act (as amended by Schedule 1 [38]), on
receiving the notice, the Compensation Fund Corporation is required to pay the
relevant amount of the award to the person to whom the award is payable.

Schedule 1 [35] and [36] provide for amendments that are consequential on the
amendments provided for by Schedule 1 [37] and [38].

Schedule 1 [49] inserts a definition of statutory compensation for prescribed
expenses in the Dictionary at the end of the Principal Act.

Other amendments
Schedule 1 [1] inserts proposed section 5 (1A) into the Principal Act. The proposed
subsection clarifies that the reference to an offence in the definition of act of violence
in section 5 of the Principal Act extends to conduct of a person that would constitute
an offence were it not for the fact that the person cannot be held criminally
responsible for the conduct because of the person’s age or mental illness or
impairment.

Schedule 1 [2] amends the definition of member of the immediate family of a
primary victim in section 9 of the Principal Act to include half-brothers and
half-sisters of the primary victim. This amendment will enable half-brothers and
half-sisters of primary victims to be awarded statutory compensation as family
victims.

Schedule 1 [5] inserts proposed section 18 (3A) into the Principal Act. The proposed
subsection enables the rules made under the Principal Act to limit the amount of any
compensation for the cost of counselling services.

Under section 20 of the Principal Act, statutory compensation is not payable to a
victim unless the total amount of compensation payable to the victim, as
compensation for compensable injuries, is at least a threshold amount, currently
fixed as $7,500 by proclamation. Schedule 1 [8] amends this section, inserting the
threshold amount of $7,500 into section 20 (1) (a). Schedule 1 [9] amends section 20
(1) (b) to enable the regulations to prescribe the threshold amount.

Schedule 1 [10] provides for an amendment that is consequential on the amendment
provided for by Schedule 1 [9].

Schedule 1 [12] inserts proposed section 20 (3A) into the Principal Act. Generally,
under section 17 of the Principal Act, the amount of compensation payable as
compensation for compensable injuries is the standard amount calculated in
accordance with the schedule of compensable injuries set out in Schedule 1 to the
Principal Act. The effect of proposed section 20 (3A) is that if the standard amount
of this compensation is reduced under certain provisions of the Act, it is the reduced
amount that applies in determining whether or not the compensation is at least the
threshold amount required for statutory compensation to be payable.

Schedule 1 [13] inserts proposed section 21 (3A) into the Principal Act. Section 21
of the Principal Act enables payments to be made for approved counselling services
for victims of acts of violence. The proposed subsection enables an initial 2 hours of
counselling to be provided to an applicant under the section if a compensation
assessor is satisfied that counselling may assist in establishing whether or not the
applicant is a victim.

Schedule 1 [17] provides for an amendment by way of statute law revision.

Schedule 1 [21] inserts proposed section 30 (1) (b1) into the Principal Act to require
a compensation assessor in determining an application for statutory compensation to
have regard to whether the act of violence concerned was reported to a relevant
health professional or practitioner, or a relevant agency.

Among the matters that a compensation assessor must have regard to in determining
an application for statutory compensation is whether the victim failed to take
reasonable steps to mitigate the extent of the victim’s injury, such as seeking
appropriate medical advice or treatment, or undertaking counselling, as soon as
practicable after the act of violence was committed. Schedule 1 [22] inserts proposed
section 30 (2A) into the Principal Act to require that, in determining whether the
victim failed to take such steps in cases of acts 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 by whom the act of violence is
alleged to have been committed.

Under Division 8 of Part 2 of the Principal Act, the amount of an award of
compensation made in respect of an act of violence can be recovered from the
offender concerned by way of restitution orders.

Schedule 1 [23] inserts proposed section 30 (4A) into the Principal Act. The
proposed subsection enables a compensation assessor to 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 related to the act of violence the subject of the other application. If the other
application is determined by the making of an award of statutory compensation, an
order for restitution could be made against the person under Division 8 of Part 2 of
the Principal Act in respect of the act of violence.

Currently, section 31 of the Principal Act enables the amount of an award for
statutory compensation to a person to be reduced by the amount of a determination
for restitution proposed to be made against the person as a means of giving effect to
the proposed determination. Schedule 1 [24]–[26] provide for amendments to
section 31 of the Principal Act that enable an award for statutory compensation to be
reduced as a means of giving effect to a determination for restitution that has already
been made against the person.

Schedule 1 [27] inserts section 33 (5) into the Principal Act. The proposed
subsection ensures that an interim award for funeral expenses can be made only to
the extent that those expenses are reasonable.

Schedule 1 [28] inserts proposed section 33A (1) into the Principal Act. Currently,
section 33A enables a person who is not a family victim to be reimbursed for
expenses relating to the funeral of a primary victim, but only if there is at least one
family victim of the act of violence concerned who is eligible for statutory
compensation. The proposed subsection enables the person to be reimbursed for the
funeral expenses whether or not there is a family victim who is eligible for statutory
compensation.

Schedule 1 [29], [30], [39] and [40] provide for amendments by way of statute law
revision.

Schedule 1 [42] inserts clause 7A (3) into Schedule 1 to the Principal Act. Clause 7A
describes the scope of the compensable injury of domestic violence. The proposed
subclause inserts a new definition of domestic violence offence for the purposes of
the clause.

Schedule 1 [41] is consequential on the amendment provided for by Schedule 1 [42].

Schedule 1 [43] provides for an amendment by way of statute law revision
Schedule 1 [44] and [46] enact savings and transitional provisions consequent on the
enactment of the proposed Act.

Schedule 1 [45] enacts a savings and transitional provision to enable the scheme of
approved counselling services provided for in section 21 of the Principal Act to be
extended to a victim of an act of violence in respect of which an application for
compensation has been made and dealt with under the Victims Compensation
Act 1987.

Schedule 1 [47] amends the definition of injury in the Dictionary at the end of the
Principal Act to cover psychological or psychiatric harm.

Schedule 1 [48] amends paragraph (g) of the definition of sexual assault and
domestic violence in the Dictionary at the end of the Principal Act to refer to acts
resulting in injury occurring in the commission of personal violence offences (within
the meaning of the Crimes Act 1900) against specified persons.

Schedule 2 Amendment of other Acts
Schedule 2.1 amends the Crimes (Sentencing Procedure) Act 1999 to expand the
range of persons who may give victims impact statements under Division 2 of Part 3
of that Act.

Schedule 2.2 amends the Victims Rights Act 1996. In particular:

(a) Schedule 2.2 [1] amends sections 5 and 6 of that Act to replace references to
mental illness or nervous shock with references to psychological or psychiatric
harm, and

(b) Schedule 2.2 [2] amends the Charter of Rights appearing in section 6 of that
Act to provide that a victim should be treated with cultural sensitivity.

Schedule 3 Amendments to Victims Support and
Rehabilitation Act 1996 consequential on
commencement of Part 15A of Crimes
Act 1900
This Schedule contains amendments consequential on the amendment of the Crimes
Act 1900 by the Crimes Amendment (Apprehended Violence) Act 2006.

Schedule 4 Victims Support and Rehabilitation
Regulation 2006
This Schedule contains the proposed Victims Support and Rehabilitation Regulation
2006. The proposed Regulation prescribes the kinds of actual expenses for which a
primary victim can be compensated in an award of statutory compensation for
prescribed expenses.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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