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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Victims of Crime Assistance Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
4. Related criminal acts 5
5. Effect of death 6
6. Objective of Act 7
PART 2--ELIGIBILITY FOR ASSISTANCE 8
Division 1--Primary Victims 8
7. Who is a primary victim? 8
8. Assistance available to primary victims 8
Division 2--Secondary Victims 9
9. Who is a secondary victim? 9
10. Assistance available to secondary victims 10
Division 3--Related Victim 11
11. Who is a related victim? 11
12. Related victim pool 11
13. Assistance available to any one related victim 11
14. Subsequent applications by related victims 12
Division 4--Assistance for Funeral Expenses 12
15. Assistance available to person incurring funeral expenses for
primary victim 12
Division 5--Limits on Assistance 13
16. Other entitlements to be taken into account 13
17. Loss of earnings 13
18. Applicant can only apply in one capacity 14
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PART 3--VICTIMS OF CRIME ASSISTANCE TRIBUNAL 15
Division 1--The Tribunal 15
19. Establishment 15
20. Functions, powers and duties of Tribunal 15
21. Composition of Tribunal 15
22. Validity of proceedings 15
23. Tribunal staff 16
24. Delegation 16
Division 2--Applications 16
25. Who may apply to the Tribunal? 16
26. Form of application 17
27. What application must set out 18
28. Where application is to be sent 19
29. Time for making application 19
30. Information to be given by related victim applicants 20
Division 3--Procedure and Powers of Tribunal 22
31. Standard of proof 22
32. Duty to act fairly and expeditiously 22
33. Determination without hearing 22
34. Fixing time and place for hearing 23
35. Who is entitled to appear at hearing? 23
36. How may a party appear? 24
37. Evidence 24
38. Procedure of Tribunal 25
39. Investigative powers of Tribunal 26
40. Power of registrar to obtain information 28
41. Power to adjourn 28
42. Hearings open to public unless Tribunal directs otherwise 29
43. Tribunal may restrict publication of material 30
44. Procedural directions 31
45. Guidelines 31
46. Scale of costs 31
47. Payment of expenses to person entitled 32
48. Costs 34
49. Complaints about service providers 35
Division 4--Awards 35
50. Making of awards 35
51. Assignment of rights to the State 36
52. Mandatory refusal of application 37
53. Reasonable time for reporting act of violence 38
54. Matters to which Tribunal must have regard 39
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55. Form of payment 40
56. Interim awards 41
Division 5--Rules and Practice Notes 42
57. Rules 42
58. Practice directions 42
PART 4--REVIEW, VARIATION AND REFUNDS 44
Division 1--AAT Review 44
59. AAT review of Tribunal decisions 44
Division 2--Variation of Award 44
60. Variation of award 44
Division 3--Refunds 45
61. Pursuing other remedies 45
62. Refund of award 46
PART 5--MISCELLANEOUS 48
63. Protection of members, advocates and witnesses 48
64. Contempt of Tribunal 48
65. Inadmissibility of evidence in other proceedings 49
66. Fraud 50
67. False or misleading information 50
68. Annual report 50
69. Payments to and from Consolidated Fund 51
70. Investment of trust money 51
71. Supreme Court--limitation of jurisdiction 52
72. Regulations 52
73. Repeal of Criminal Injuries Compensation Act 1983 52
74. Compensation under Sentencing Act 1991 for pain and suffering 52
75. New Division 2A inserted in Part 4 of Sentencing Act 1991 53
87A. Recovery of assistance paid under Victims of Crime
Assistance Act 1996 54
87B. Enforcement of order under section 87A 55
76. Transitional provisions 56
__________________
SCHEDULE 1 57
NOTES 64
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531067B.I1-31/10/96 BILL LA INTRODUCTION 31/10/96
A BILL
to provide assistance to victims of crime, to repeal the Criminal
Injuries Compensation Act 1983, to amend the Sentencing Act
1991 and for other purposes.
Victims of Crime Assistance Act 1996
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to provide assistance to
victims of crime.
2. Commencement
5
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
10
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(3) If a provision referred to in sub-section (2) does
not come into operation before 1 July 1997, it
comes into operation on that day.
3. Definitions
(1) In this Act--
5
"act of violence" means a criminal act or a series
of related criminal acts, whether committed
by one or more persons, that has--
(a) occurred in Victoria; and
(b) directly resulted in injury or death to
10
one or more persons, irrespective of
where the injury or death occurs;
"close family member", in relation to a deceased
primary victim of an act of violence, means a
person who had a genuine personal
15
relationship with the victim at the time of the
victim's death and who is--
(a) the spouse of the victim; or
(b) a parent, guardian or step-parent of the
victim; or
20
(c) a child or step-child of the victim or
some other child of whom the victim is
the guardian; or
(d) a brother, sister, step-brother or step-
sister of the victim;
25
"criminal act" means an act or omission
constituting a relevant offence or that would
constitute a relevant offence if the person
had not been incapable of being criminally
responsible for it on account of--
30
(a) age, mental impairment or other legal
incapacity preventing him or her from
having a required fault element; or
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s. 3
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(b) the existence of any other lawful
defence;
"dependant", in relation to a deceased primary
victim of an act of violence, means--
(a) an individual who was wholly or
5
substantially dependent on the victim's
income at the time of the victim's death
or who would have been but for the
incapacity of the victim due to the
injury from which he or she died; or
10
(b) a child of the victim born after the
victim's death who would have been a
dependant of the victim under
paragraph (a) if he or she had been
born before the victim's death;
15
"guardian", in relation to a victim or applicant,
(except in section 25(3) and (4)) does not
include the Secretary within the meaning of
the Children and Young Persons Act 1989,
a guardian appointed or taking over office as
20
guardian under the Guardianship and
Administration Board Act 1986 or any
other government agency;
"injury" means--
(a) actual physical bodily harm; or
25
(b) mental illness or disorder, whether or
not flowing from nervous shock; or
(c) pregnancy; or
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s. 3 Act No.
(d) any combination of matters referred to
in paragraphs (a), (b) and (c) arising
from an act of violence--
but does not include injury arising from loss of or
5 damage to property;
"medical expenses" includes dental, optometry,
physiotherapy, psychology treatment,
hospital and ambulance expenses;
"medical report" means a written statement
made by a medical expert on medical matters
10
and includes any document which the
medical expert intends should be read with
the statement;
"member", in relation to the Tribunal, means the
magistrate or acting magistrate constituting
15
the Tribunal;
"practice directions" means practice directions,
statements or notes issued under section
58(1);
"registrar", in relation to the Tribunal, includes
20
the principal registrar of the Tribunal;
"relevant offence" means--
(a) an offence, punishable on conviction
by imprisonment, that involves an
assault on, or injury or a threat of
25
injury to, a person; or
(b) an offence against Subdivision (8A),
(8B), (8C), (8D) or (8E) of Division 1
of Part I of the Crimes Act 1958 or
any corresponding previous enactment
30
(sexual offences) or an offence at
common law of rape or assault with
intent to rape; or
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(c) an offence against section 21A(1) of
the Crimes Act 1958 (stalking),
section 63 of that Act (child stealing)
or section 63A of that Act
(kidnapping) or any corresponding
5
previous enactment; or
(d) an offence of conspiracy to commit,
incitement to commit or attempting to
commit an offence referred to in
paragraph (a), (b) or (c);
10
"the rules" means rules of the Tribunal jointly
made by the Chief Magistrate together with
2 or more Deputy Chief Magistrates;
"Tribunal" means Victims of Crime Assistance
Tribunal established by Part 3;
15
"victim" means primary victim, secondary victim
or related victim of an act of violence, as the
case requires.
(2) Notwithstanding the definition of "injury" in sub-
section (1), if, in respect of an application under
20
this Act by a primary victim or a secondary
victim, the Tribunal is satisfied on medical
evidence that treatment or counselling is required
as a result of trauma associated with an act of
violence, the person concerned is deemed for the
25
purposes of this Act to be suffering an injury.
4. Related criminal acts
(1) Subject to this section, a criminal act is related to
another criminal act for the purposes of this Act
if--
30
(a) they were committed against the same
person and they--
(i) occurred at approximately the same
time; or
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(ii) occurred over a period of time and were
committed by the same person or group
of persons; or
(iii) share some other common factor--
unless the Tribunal considers that, having
5
regard to the particular circumstances of
those acts, they ought not to be treated as
related criminal acts; or
(b) they contribute to the injury or death on
which the application to the Tribunal is
10
based unless the Tribunal considers that,
having regard to the particular circumstances
of those acts, they ought not to be treated as
related criminal acts; or
(c) the Tribunal considers that they ought to be
15
treated as related criminal acts.
(2) For the purposes of this Act, a criminal act in
respect of which an award of assistance has been
made under this Act is not related to another
criminal act occurring after the award was made.
20
(3) A criminal act may be related to another criminal
act even though charges for offences arising out of
those criminal acts are tried or heard separately.
(4) For the purposes of this Act, a series of related
criminal acts, whether committed by one or more
25
persons, constitutes a single act of violence.
5. Effect of death
Despite any provision of any Act or rule of law to
the contrary, on the death of a primary victim of
an act of violence, any right of that victim to
30
receive assistance of any kind under this Act does
not survive for the benefit of his or her estate.
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Act No.
6. Objective of Act
The objective of this Act is to provide a scheme
whereby victims of crime will be provided with
assistance to help them recover from the act of
violence to which they have been subjected.The
5
scheme provided by this Act is intended to
complement other services provided by
government to victims of crime.
_______________
10
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s. 7 Act No.
PART 2--ELIGIBILITY FOR ASSISTANCE
Division 1--Primary Victims
7. Who is a primary victim?
(1) A primary victim of an act of violence is a person
who is injured or dies as a direct result of an act of
5
violence committed against him or her.
(2) A person is also a primary victim of an act of
violence if he or she is injured or dies as a direct
result of--
(a) trying to arrest someone whom he or she
10
believes on reasonable grounds has
committed an act of violence; or
(b) trying to prevent the commission of an act of
violence; or
(c) trying to aid or rescue someone whom he or
15
she believes on reasonable grounds is a
victim of an act of violence--
whether or not an act of violence is actually
committed.
8. Assistance available to primary victims
20
(1) A primary victim may be awarded by the Tribunal
assistance of up to $60 000 less any amount
awarded to a person in accordance with Division
4.
(2) The amount awarded to a primary victim may be
25
made up of amounts--
(a) for expenses actually incurred, or reasonably
likely to be incurred, by the primary victim
for reasonable counselling services;
(b) for medical expenses actually and reasonably
30
incurred, or reasonably likely to be incurred,
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by the primary victim as a direct result of the
act of violence;
(c) of up to $20 000 for loss of earnings
suffered, or reasonably likely to be suffered,
by the primary victim as a direct result of the
5
act of violence;
(d) for expenses incurred by the primary victim
through loss of or damage to clothing worn
at the time of the commission of the act of
violence.
10
(3) In exceptional circumstances, there may also be
included in the amount awarded to a primary
victim within the limit set by sub-section (1) an
amount for other expenses actually and reasonably
incurred, or reasonably likely to be incurred, by
15
the primary victim to assist his or her recovery
from the act of violence.
(4) Except as provided by sub-section (2)(d) in the
case of clothing, assistance may not be awarded to
a primary victim for expense incurred through loss
20
of or damage to property.
Division 2--Secondary Victims
9. Who is a secondary victim?
(1) A secondary victim of an act of violence is a
person who is present at the scene of an act of
25
violence and who is injured as a direct result of
witnessing that act.
(2) A person is also a secondary victim of an act of
violence if he or she is injured as a direct result of
subsequently becoming aware of an act of
30
violence and--
(a) he or she is the parent or guardian of the
primary victim of the act of violence; and
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(b) the primary victim of the act of violence was
under the age of 18 years at the time of the
commission of that act.
(3) A person is not a secondary victim of an act of
violence by virtue of sub-section (2) if he or she
5
committed, and is criminally responsible for, that
act of violence.
10. Assistance available to secondary victims
(1) A secondary victim may be awarded by the
Tribunal assistance of up to $50 000.
10
(2) The amount awarded to a secondary victim may
be made up of amounts--
(a) for expenses actually incurred, or reasonably
likely to be incurred, by the secondary victim
for reasonable counselling services;
15
(b) for medical expenses actually and reasonably
incurred, or reasonably likely to be incurred,
by the secondary victim as a direct result of
witnessing, or becoming aware of, the act of
violence.
20
(3) In exceptional circumstances, there may also be
included in the amount awarded to a secondary
victim within the limit set by sub-section (1) an
amount of up to $20 000 for loss of earnings
suffered, or reasonably likely to be suffered, by
25
the secondary victim as a direct result of
witnessing, or becoming aware of, the act of
violence.
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Division 3--Related Victim
11. Who is a related victim?
(1) A related victim of an act of violence is a person
who, at the time of the occurrence of the act of
violence--
5
(a) was a close family member of; or
(b) was a dependant of; or
(c) had an intimate personal relationship with--
a primary victim of that act who died as a direct
result of that act.
10
(2) A person is not a related victim of an act of
violence if he or she committed, and is criminally
responsible for, that act of violence.
12. Related victim pool
The total maximum cumulative amount that may
15
be awarded to all the related victims of any one
primary victim is $100 000 less any amount
awarded for the funeral expenses of the primary
victim in accordance with Division 4.
13. Assistance available to any one related victim
20
(1) Within the limit set by section 12, a related victim
may be awarded by the Tribunal assistance of up
to $50 000.
(2) The amount awarded to a related victim may be
made up of amounts--
25
(a) for expenses actually incurred, or reasonably
likely to be incurred, by the related victim
for reasonable counselling services;
(b) for medical expenses or funeral expenses
actually and reasonably incurred, or
30
reasonably likely to be incurred, by the
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related victim as a direct result of the death
of the primary victim;
(c) for distress experienced, or reasonably likely
to be experienced, by the related victim as a
direct result of the death of the primary
5
victim;
(d) for loss of money that, but for the death of
the primary victim, the related victim would
have been reasonably likely to receive from
the primary victim during a period of up to 2
10
years after that death;
(e) for other expenses actually and reasonably
incurred, or reasonably likely to be incurred,
by the related victim as a direct result of that
death.
15
(3) Assistance may not be awarded to a related victim
for expense incurred through loss of or damage to
property.
14. Subsequent applications by related victims
A person cannot apply for assistance as a related
20
victim of an act of violence if an award of
assistance has been made under this Act to, or for
the benefit of, another related victim of that act of
violence.
Division 4--Assistance for Funeral Expenses
25
15. Assistance available to person incurring funeral
expenses for primary victim
A person who has incurred funeral expenses as a
direct result of the death of a primary victim of an
act of violence and who is not a related victim of
30
that act may be awarded by the Tribunal
assistance for the funeral expenses actually and
reasonably incurred by that person.
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s. 16
Act No.
Division 5--Limits on Assistance
16. Other entitlements to be taken into account
In determining whether or not to make an award
or the amount of any award to be made, the
Tribunal--
5
(a) must take into account--
(i) any damages that the applicant has
recovered at common law; and
(ii) any compensation, assistance or
payments of any other kind that the
10
applicant has received--
for the loss, expense or other matter for
which assistance is sought from the Tribunal;
and
(b) may take into account--
15
(i) any damages that the applicant would
be likely to recover at common law if
he or she commenced a legal
proceeding to recover them; and
(ii) any compensation, assistance or
20
payments of any other kind that the
applicant has not received but is
entitled to receive or would be entitled
to receive if he or she applied for, or
otherwise sought to recover, it or
25
them--
for the loss, expense or other matter for
which assistance is sought from the Tribunal.
17. Loss of earnings
Assistance for loss of earnings awarded by the
30
Tribunal is for earnings lost by the primary or
secondary victim as a direct result of total or
partial incapacity for work during a period of up
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s. 18 Act No.
to 2 years after the occurrence of the act of
violence.
18. Applicant can only apply in one capacity
A person is only eligible to apply for, or receive,
assistance in respect of a single act of violence in
5
one capacity only.
_______________
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s. 19
Act No.
PART 3--VICTIMS OF CRIME ASSISTANCE TRIBUNAL
Division 1--The Tribunal
19. Establishment
(1) The Victims of Crime Assistance Tribunal is
established.
5
(2) The Tribunal consists of the Chief Magistrate and
all other persons who hold the office of magistrate
under section 7 of the Magistrates' Court Act
1989 or acting magistrate under section 9 of that
Act.
10
20. Functions, powers and duties of Tribunal
The Tribunal has the functions, powers and duties
conferred on it by this Act.
21. Composition of Tribunal
(1) The Tribunal is to be constituted by a single
15
member for the purpose of the exercise of its
functions, powers and duties with respect to any
matter.
(2) The Tribunal may operate concurrently in more
than one division.
20
(3) The Chief Magistrate is responsible for the
arrangement of the business of the Tribunal and
may give directions for the arrangement of that
business and the constitution of the Tribunal for
the purpose of any particular business.
25
22. Validity of proceedings
A decision of the Tribunal is not invalid only
because of a defect or irregularity in, or in
connection with, the assignment of a magistrate or
acting magistrate to constitute the Tribunal for the
30
purpose of any particular business.
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s. 23 Act No.
23. Tribunal staff
Subject to the Public Sector Management Act
1992, there may be appointed--
(a) a principal registrar of the Tribunal; and
(b) registrars of the Tribunal; and
5
(c) deputy registrars of the Tribunal; and
(d) as many other staff as are necessary for the
effective operation of the Tribunal.
24. Delegation
The Chief Magistrate may, for and on behalf of
10
the Tribunal, by instrument, delegate to the
principal registrar or a registrar or deputy registrar
of the Tribunal any power conferred on the
Tribunal by or under this or any other Act, other
than--
15
(a) the power to hear or determine an
application; and
(b) this power of delegation.
Division 2--Applications
25. Who may apply to the Tribunal?
20
(1) An application may be made to the Tribunal by a
primary victim, a secondary victim or a related
victim of an act of violence.
(2) An application may also be made to the Tribunal
in accordance with Division 4 of Part 2 by a
25
person who has incurred funeral expenses.
(3) If the person entitled to make an application is a
child, the application may be made on the child's
behalf by a parent or guardiani of the child or
another person whom the Tribunal considers to be
30
appropriate.
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Act No.
(4) If the person entitled to make an application is a
represented person within the meaning of the
Guardianship and Administration Board Act
1986, the application may be made on the
represented person's behalf by the guardianii or
5
administrator appointed under that Act.
(5) If in any other case the Tribunal considers that the
person entitled to make an application needs
assistance in doing so, the application may be
made on the person's behalf by any person whom
10
the Tribunal considers to be appropriate.
(6) For the purposes of this Act, a person is still the
applicant where an application is made on his or
her behalf by another person in accordance with
this section.
15
26. Form of application
An application--
(a) must be in writing in or to the effect of the
form prescribed by the rules or, if no form is
so prescribed, required by any practice
20
directions; and
(b) must be accompanied by any documentary
evidence (such as medical certificates or
statements of earnings) indicated in the form
as being required to accompany the
25
application; and
(c) must contain an authorisation for the
Tribunal to obtain any other evidence or any
document that the Tribunal considers that it
requires in order to enable it to determine the
30
application; and
(d) must state whether the applicant wishes the
Tribunal to conduct a hearing or determine
the application without conducting a hearing;
and
35
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(e) must be verified by the applicant, or the
person making the application on behalf of
the applicant, by a statutory declaration.
27. What application must set out
(1) An application must set out--
5
(a) the circumstances in which the injury or
death occurred, including the date, time and
place of the alleged criminal act;
(b) whether the applicant is claiming as a
primary, secondary or related victim or as a
10
person who has incurred funeral expenses;
(c) the nature of the injury or the cause of death;
(d) whether the applicant has made a report to
the police;
(e) whether criminal proceedings arising out of
15
the alleged criminal act have been
commenced;
(f) the amount and type of assistance sought;
(g) whether the applicant has made any other
application for assistance under this Act in
20
respect of the same act of violence;
(h) whether the applicant has applied for
damages, compensation, assistance or
payments of any kind under any other
schemes whether statutory or non-statutory,
25
including that managed by the Transport
Accident Commission and the Victorian
WorkCover Authority and that established
by the Police Assistance Compensation Act
1968 and any predecessor of any such
30
schemes;
(i) details of any relevant insurance cover
(including life and health insurance) or
superannuation benefit entitlements held by
18
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the applicant and, in the case of an applicant
who is a related victim, by the deceased
primary victim;
(j) any other matter required by the rules, or any
practice directions, to be set out in the
5
application.
(2) If an applicant has applied for damages,
compensation, assistance or payments of any kind
under another scheme (whether statutory or non-
statutory), the applicant must provide the Tribunal
10
with any authorisation necessary for the Tribunal
to be provided by the body managing that scheme
with information about the application and
decisions made in respect of it.
28. Where application is to be sent
15
An application must be lodged with, or posted to,
a registrar of the Tribunal.
29. Time for making application
(1) An application must be made within 2 years after
the occurrence of the act of violence or, in the
20
case of an application by a related victim or a
person who has incurred funeral expenses, within
2 years after the death of the primary victim.
(2) The Tribunal must refuse to accept an application
made out of time unless it considers that, in the
25
particular circumstances, the application ought to
be accepted.
(3) In determining whether to accept an application
made out of time, the Tribunal must have regard
to--
30
(a) the age of the applicant at the time of the
occurrence of the act of violence;
(b) whether the applicant is intellectually
disabled within the meaning of the
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s. 30 Act No.
Intellectually Disabled Persons' Services
Act 1986 or mentally ill within the meaning
of the Mental Health Act 1986;
(c) whether the person who committed, or is
alleged by the applicant to have committed,
5
the act of violence was in a position of
power, influence or trust in relation to the
applicant;
(d) the physical or psychological effect of the
act of violence on the applicant;
10
(e) whether the delay in making the application
threatens the capacity of the Tribunal to
make a fair decision;
(f) whether the applicant was a child at the time
of the occurrence of the act of violence and
15
the application was made within a reasonable
time after he or she reached the age of 18;
(g) all other circumstances that it considers
relevant.
(4) The Tribunal must not accept an application made
20
out of time only because the applicant was
unaware of this Act or of the Criminal Injuries
Compensation Act 1983 or the Criminal
Injuries Compensation Act 1972 or of the time
within which applications must be made under
25
any such Act.
30. Information to be given by related victim applicants
(1) Within 21 days after making an application or any
longer period fixed by the Tribunal during that
period or during any such longer period
30
previously fixed by the Tribunal, an applicant who
is a related victim must notify the Tribunal in
accordance with the rules of--
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(a) every other person whom the applicant
believes may be a related victim of the act of
violence; and
(b) every other person whom the applicant
believes may allege that he or she is a related
5
victim of the act of violence; and
(c) any person whom the applicant believes may
apply in accordance with Division 4 of Part
2.
Penalty: 50 penalty units.
10
(2) It is sufficient compliance with sub-section (1) if,
in circumstances in which the applicant knows of
the existence of a person or class of persons of
whom he or she would be required to give notice
under that sub-section but does not know their
15
name or address, the applicant notifies the
Tribunal of all matters within his or her
knowledge that may enable the Tribunal to
ascertain their name and address.
(3) If a court finds a person guilty of, or convicts a
20
person of, an offence against sub-section (1), it
may, in addition to any other penalty that it
imposes, make an order directing the offender to
refund to the State an amount equal to the whole
or any specified part of any assistance awarded to
25
the offender as a related victim on the application
out of which the offence arose or forfeit any
entitlement to any such amount that has not yet
been paid to the offender.
(4) The court may require an amount that is to be
30
refunded under sub-section (3) to be refunded--
(a) wholly as a lump sum; or
(b) partly as a lump sum and partly by
instalments; or
(c) wholly by instalments.
35
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(5) Any money that is not refunded as required by an
order under this section may be recovered as a
debt due to the State.
Division 3--Procedure and Powers of Tribunal
31. Standard of proof
5
Any question of fact to be decided by the Tribunal
on, or in relation to, an application under this Act
is to be decided on the balance of probabilities.
32. Duty to act fairly and expeditiously
In all matters before it the Tribunal must act--
10
(a) fairly; and
(b) according to the substantial merits of the
case; and
(c) with as much expedition as the requirements
of this Act and a proper determination of the
15
matter permit.
33. Determination without hearing
(1) The Tribunal may determine an application, or
make a decision in relation to an application,
without conducting a hearing if the applicant has
20
stated in the application a wish for the Tribunal to
do so.
(2) If it does so, it must notify the applicant of its
decision including details of--
(a) the amount, if any, of assistance awarded;
25
and
(b) the purpose or purposes for which the
assistance is awarded; and
(c) any conditions to which the award is subject;
and
30
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(d) the person or persons to whom assistance is
payable; and
(e) any other order made by the Tribunal.
34. Fixing time and place for hearing
(1) If the Tribunal decides to conduct a hearing of an
5
application, it must fix a time and place for the
hearing and give the applicant reasonable notice
of it.
(2) The Tribunal may give notice of the time and
place for the hearing to any other person whom
10
the Tribunal considers to have a legitimate interest
in the matter.
(3) The Tribunal must not under sub-section (2) give
notice of the time and place for the hearing to the
person who committed, or is alleged to have
15
committed, the act of violence without first giving
the applicant an opportunity to be heard on the
issue of whether or not that notice should be
given.
35. Who is entitled to appear at hearing?
20
(1) The applicant and any other person or body that,
in the Tribunal's opinion, has a substantial interest
in a matter is entitled to appear and be heard by
the Tribunal on the hearing of the matter.
(2) An officer of the Tribunal assisting the Tribunal
25
with respect to a matter or a legal practitioner
engaged by the Tribunal to assist it with respect to
a matter is entitled to appear and be heard by the
Tribunal on the hearing of the matter.
(3) The State is entitled to appear and be heard by the
30
Tribunal on the hearing of a matter if the State
considers that it has a legitimate interest in the
matter.
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(4) A person or body that is entitled to appear and be
heard by the Tribunal on the hearing of a matter is
a party to the matter.
36. How may a party appear?
(1) A party may appear personally or by a legal
5
practitioner or, with the leave of the Tribunal, by
any other representative.
(2) Without limiting sub-section (1)--
(a) a party that is a body corporate may appear
by an officer of the body authorised in
10
writing by the body corporate to appear on
its behalf;
(b) a party that is a firm may appear by a partner
of the firm or by an employee of the firm
authorised in writing by the firm to appear
15
on its behalf;
(c) a party that is the State may appear by a
member of staff within the meaning of the
Public Sector Management Act 1992
authorised in writing by the State to appear
20
on its behalf.
37. Evidence
(1) The Tribunal has the powers conferred by sections
14, 15, 16, 20 and 20A of the Evidence Act 1958
on a board appointed by the Governor in Council.
25
(2) The Tribunal may, on its own initiative or on the
application of a party to a proceeding, direct that
alternative arrangements be made for the giving of
evidence by a witness.
(3) Without limiting sub-section (2), any of the
30
following alternative arrangements may be
directed to be made:
(a) permitting the evidence to be given from a
place other than the room in which the
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Tribunal is sitting by means of closed-circuit
television or other facilities that enable
communication between that place and the
room in which the Tribunal is sitting;
(b) using screens to remove the person by whom
5
the act of violence was committed or alleged
to have been committed from the witness'
direct line of vision;
(c) permitting a person to be beside the witness
while he or she is giving evidence for the
10
purpose of providing emotional support to
him or her;
(d) requiring counsel to be seated while
examining or cross-examining the witness.
(4) Any place outside the room in which the Tribunal
15
is sitting where a witness is permitted to give
evidence under this section is to be taken to be
part of the room in which the Tribunal is sitting
while the witness is there for the purpose of
giving evidence.
20
(5) The Tribunal may, at any time in the course of the
proceeding, vary or revoke a direction made under
sub-section (2) on its own initiative or on the
application of a party to the proceeding.
38. Procedure of Tribunal
25
(1) On the hearing of a matter, the Tribunal--
(a) is not required to conduct itself in a formal
manner;
(b) is not bound by rules or practice as to
evidence but may inform itself in relation to
30
the matter in any manner that it thinks fit;
(c) must give a party to the matter a reasonable
opportunity to--
(i) call or give evidence;
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(ii) examine, cross-examine or re-examine
witnesses;
(iii) make submissions to the Tribunal.
(2) After hearing and determining an application
(including an application for variation under
5
section 60), the Tribunal must notify the applicant
of its decision including details of--
(a) the amount, if any, of assistance awarded;
and
(b) the purpose or purposes for which the
10
assistance is awarded; and
(c) any conditions to which the award is subject;
and
(d) the person or persons to whom assistance is
payable; and
15
(e) any other order made by the Tribunal.
(3) Subject to this Act and the rules and to any
guidelines issued under section 45(1) or practice
directions, the procedure of the Tribunal is in its
discretion.
20
39. Investigative powers of Tribunal
(1) The Tribunal may, if it determines that it requires
further information to enable it to determine an
application--
(a) authorise a person to make any enquiry or
25
carry out any investigation on behalf of the
Tribunal necessary to furnish the Tribunal
with the further information that it requires;
or
(b) order the preparation and submission to the
30
Tribunal of a medical report or counselling
report; or
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(c) order the applicant to lodge with the
Tribunal, within the period specified in the
order, an additional statement containing
particulars of matters specified in the order
or any documents specified in the order.
5
(2) A person authorised under sub-section (1)(a) may
be--
(a) a member of staff referred to in section 23;
or
(b) a legal practitioner engaged by the Tribunal
10
to assist it with respect to an application; or
(c) if the State has appeared on the hearing of a
matter, a person authorised to appear before
the Tribunal on behalf of the State.
(3) Without limiting sub-section (1), the Tribunal may
15
authorise a person under sub-section (1)(a) to
exercise any power conferred on a registrar by
section 40.
(4) If, in connection with the preparation of a medical
report or counselling report ordered to be prepared
20
under sub-section (1)(b), an applicant refuses or
fails without reasonable excuse to comply with a
request to submit to an examination by a medical
expert or to receive counselling services, the
Tribunal may under section 41 adjourn
25
consideration of the application until the
examination or counselling takes place or refuse
the application.
(5) The Tribunal must bear the costs of, and
incidental to, an examination or provision of
30
counselling services referred to in sub-section (4).
(6) The Tribunal may exercise its power under sub-
section (1)(b) whether or not a medical or
counselling report has been submitted to it by the
applicant or any other party.
35
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(7) If an applicant refuses or fails without reasonable
excuse to comply with an order under sub-section
(1)(c), the Tribunal may under section 41 adjourn
consideration of the application until the order is
complied with or refuse the application.
5
40. Power of registrar to obtain information
(1) A registrar may, in relation to an application for
assistance--
(a) inspect any court register; or
(b) by notice in writing require a person, within
10
a specified period of time, to provide to the
registrar any information or produce to the
registrar any documents relevant to the
application.
(2) A person to whom a notice is given under sub-
15
section (1)(b) may be--
(a) a person employed or engaged to provide
services to--
(i) a government department; or
(ii) a body providing health services; or
20
(iii) any other body of any kind whatsoever;
or
(b) the Chief Commissioner of Police; or
(c) any other person whatsoever.
(3) The registrar may extend or further extend the
25
period specified in the notice under sub-section
(1)(b) for compliance with the requirement.
(4) A person to whom a notice is given under sub-
section (1)(b) must comply with the notice.
Penalty: 10 penalty units.
30
41. Power to adjourn
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(1) The Tribunal may order an adjournment of the
consideration of an application--
(a) to such times and places; and
(b) for such purposes; and
(c) on such terms as to costs or otherwise--
5
as it considers necessary or just in the
circumstances.
(2) Without limiting sub-section (1), purposes for
which the Tribunal may adjourn consideration of
an application include pending the determination
10
of civil or criminal proceedings arising out of the
commission of the act of violence that have been
commenced or are about to commence or could be
commenced by the applicant.
(3) An order under this section may be made on the
15
application of a party or on the Tribunal's own
initiative.
42. Hearings open to public unless Tribunal directs
otherwise
(1) A hearing conducted by the Tribunal in relation to
20
a matter is to be open to the public unless the
Tribunal directs--
(a) that the whole or any part of the hearing is to
be closed to members of the public; or
(b) that only persons or classes of persons
25
specified by it may be present during the
whole or any part of the hearing.
(2) A direction under this section may be given on the
application of a party or on the Tribunal's own
initiative.
30
(3) The Tribunal must give a direction under this
section if an application for the giving of the
direction is made by--
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(a) an applicant who is a primary victim of an
act of violence and who the Tribunal is
satisfied is a person--
(i) whose injury resulted from an offence
referred to in paragraph (b) of the
5
definition of "relevant offence" in
section 3; or
(ii) who is a child; or
(iii) with impaired mental functioning; or
(b) an applicant who the Tribunal is satisfied is
10
likely--
(i) to suffer distress; or
(ii) to feel intimidated or be stressed--
if the direction is not given.
43. Tribunal may restrict publication of material
15
(1) The Tribunal may, if satisfied that it is in the
public interest to do so, order--
(a) that the whole or any specified part of the
evidence given at a hearing; or
(b) that the content of all or any specified
20
documents produced to the Tribunal; or
(c) that any information likely to lead to the
identification of a party or another person
who has appeared at a hearing--
must not be published except in the manner and to
25
the persons specified in the order.
(2) An order under this section may be made on the
application of a party or on the Tribunal's own
initiative.
(3) A person must not publish or cause to be
30
published any material in contravention of an
order under this section.
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Act No.
Penalty: 500 penalty units in the case of a body
corporate; 100 penalty units or
imprisonment for 2 years in any other
case.
44. Procedural directions
5
(1) The Tribunal may give directions as to the
procedure to be followed at, or in connection with,
the hearing of a matter.
(2) The Tribunal may at any time vary or revoke a
direction given under this section.
10
(3) A direction under this section may be given,
varied or revoked on the application of a party or
on the Tribunal's own initiative.
(4) A direction under this section must not be
inconsistent with any provision made by this Act
15
or the rules or with any guidelines issued under
section 45(1) or any practice directions.
45. Guidelines
(1) The Chief Magistrate may issue guidelines for the
Tribunal as to the procedure to be followed at, or
20
in connection with, the hearing of matters
generally or any specified class or classes of
matters.
(2) Guidelines issued under sub-section (1) must not
be inconsistent with any provision made by this
25
Act or the rules or with any practice directions.
46. Scale of costs
(1) The Governor in Council may, by Order published
in the Government Gazette, prescribe a scale of
costs applicable with respect to applications to the
30
Tribunal for assistance under this Act.
(2) A scale of costs under sub-section (1) may
prescribe--
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(a) costs payable to a legal practitioner acting
for an applicant for assistance under this Act;
(b) allowances and expenses payable to
witnesses in proceedings in the Tribunal or
persons required to produce documents to
5
the Tribunal;
(c) amounts payable in respect of the provision
by a medical expert or counselling service
provider in connection with an application to
the Tribunal of any service including the
10
conduct of an examination and the
preparation of a report;
(d) amounts payable in respect of funeral
expenses.
47. Payment of expenses to person entitled
15
(1) In this section--
"creditor" means a person entitled to take
proceedings for the recovery of expenses and
includes a legal practitioner who has paid
expenses on behalf of a client;
20
"expenses" means expenses for a treatment or
other service provided in respect of which
assistance is payable under this Act but does
not include costs referred to in section 48;
"reasonable", in relation to expenses, means
25
reasonable having regard to the treatment or
other service provided.
(2) The Tribunal may order that assistance in respect
of expenses be paid to the creditor.
(3) If the Tribunal believes that the amount of
30
expenses is reasonable and orders payment to the
creditor under sub-section (2), the creditor may
recover from the debtor the difference between the
amount ordered and the amount of the expenses.
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(4) If the Tribunal believes that the amount of
expenses is not reasonable, it may make an order
determining the amount it considers reasonable.
(5) If the Tribunal makes an order under sub-section
(4) in respect of expenses--
5
(a) assistance payable in respect of the expenses
must not exceed 80% of the amount
determined by the Tribunal;
(b) if the expenses have not been paid--
(i) unless the creditor is a legal practitioner
10
who has paid the full amount of the
expenses on behalf of a client, the
creditor is not entitled to recover more
than the amount determined by the
Tribunal;
15
(ii) if the creditor is a legal practitioner
who has paid the full amount of the
expenses on behalf of a client, the
difference between the amount
determined by the Tribunal and the
20
amount paid may be recovered by the
legal practitioner on behalf of the client
as a civil debt recoverable summarily
from the person to whom payment was
made;
25
(iii) the creditor is not prevented by this Act
from recovering the balance of the
amount determined by the Tribunal
remaining after a payment ordered by
the Tribunal;
30
(c) if the expenses have been paid, the amount
of payment in excess of the amount
determined by the Tribunal is recoverable as
a civil debt recoverable summarily from the
person to whom payment was made.
35
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48. Costs
(1) The costs of, and incidental to, all proceedings in
the Tribunal are in the discretion of the Tribunal
and it has full power to determine by whom, to
whom and to what extent the costs are to be paid.
5
(2) Sub-section (1) is subject to this section and to--
(a) any scale of costs under section 46(1); and
(b) the rules; and
(c) any practice directions.
(3) A related victim of an act of violence must bear
10
his or her own costs in respect of proceedings
before the Tribunal unless the Tribunal considers
that, having regard to the particular circumstances,
it ought to allow all or any part of those costs.
(4) A legal practitioner acting for an applicant for
15
assistance under this Act is not entitled--
(a) to recover from the applicant any costs in
respect of proceedings before the Tribunal;
or
(b) to claim a lien in respect of any such costs on
20
any sum payable as assistance under this
Act; or
(c) to deduct any such costs from any such
sum--
except to the extent to which the costs have been
25
allowed as between the legal practitioner and the
client by the Tribunal on the application of the
legal practitioner or of the client.
(5) Except as allowed by the Tribunal, a person must
not charge for the making of an application to the
30
Tribunal or for appearing on behalf of an
applicant.
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(6) Sub-sections (4) and (5) have effect despite
anything to the contrary in the Legal Practice Act
1996.
49. Complaints about service providers
(1) The Tribunal may cause a complaint about the
5
costs charged by a legal practitioner in connection
with an application to the Tribunal to be made in
accordance with Division 2 of Part 5 of the Legal
Practice Act 1996 if it considers the amount
charged to be grossly excessive.
10
(2) The Tribunal may cause a complaint to be made to
the Health Services Commissioner or a relevant
regulatory body about the amount charged by a
medical expert or counselling service provider for
the provision in connection with an application to
15
the Tribunal of any service if it considers the
amount charged to be grossly excessive.
Division 4--Awards
50. Making of awards
(1) The Tribunal may award assistance to an
20
applicant if satisfied--
(a) that an act of violence has occurred; and
(b) that the applicant is a primary victim,
secondary victim or related victim of that act
of violence or a person who has incurred
25
funeral expenses as a direct result of the
death of such a primary victim; and
(c) that the applicant is eligible to receive the
assistance.
(2) An award of assistance may be made subject to
30
any conditions specified by the Tribunal in the
order making the award.
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(3) Without limiting sub-section (2), the Tribunal may
specify the following as conditions:
(a) that the person to whom, or for whose
benefit, the award is made repay the whole
or any part of the amount of the award in
5
specified circumstances;
(b) in the case of an award that is payable to a
person for the benefit of another person,
conditions--
(i) as to the payment of the assistance to or
10
for the benefit of that other person; or
(ii) as to the holding of the whole or any
part of the assistance on trust for that
other person.
(4) The Tribunal may award assistance in respect of
15
an act of violence even though no person has been
charged with, or found guilty or convicted of, an
offence arising out of the commission of that act
of violence.
51. Assignment of rights to the State
20
(1) The person to whom, or for whose benefit, an
award of assistance is made under this Act may,
on or before the making of the award, assign to
the State their right to recover from any other
person, by civil proceedings, damages or
25
compensation in respect of the injury or death to
which the award relates.
(2) Money recovered by the State in the exercise of a
right assigned to it in accordance with sub-section
(1) must be dealt with as follows:
30
(a) an amount equal to the expended amount, or
the total money recovered if it is less than
the expended amount, must be paid into the
Consolidated Fund; and
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(b) the balance, if any, must be paid to the
assignee.
(3) In sub-section (2) "the expended amount" is the
total of--
(a) the amount of assistance awarded to the
5
assignee under this Act; and
(b) all costs and expenses incurred by the
Tribunal in connection with the
determination of the application for
assistance and the making of the award; and
10
(c) all costs and expenses incurred by the
Administrative Appeals Tribunal on a review
of a decision made by the Tribunal in
connection with the application for
assistance; and
15
(d) all costs incurred by the State in connection
with the exercise of the assigned right.
52. Mandatory refusal of application
The Tribunal must refuse to make an award of
assistance if--
20
(a) it is satisfied that--
(i) the act of violence was not reported to
the police within a reasonable time; or
(ii) the applicant failed to provide
reasonable assistance to any person or
25
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--
30
unless the Tribunal considers that special
circumstances brought about that result; or
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(b) the application is made in collusion with the
person who committed or is alleged to have
committed the act of violence; or
(c) an earlier application for assistance by the
applicant in any capacity arising from the
5
same act of violence has been made, whether
or not the earlier application has been
determined; or
(d) in the case of an application by a related
victim of an act of violence, an award of
10
assistance has been made under this Act to,
or for the benefit of, another related victim
of that act of violence.
53. Reasonable time for reporting act of violence
In considering whether the act of violence was
15
reported to the police within a reasonable time,
the Tribunal may have regard to any matters that
it considers relevant including--
(a) the age of the victim at the time of the
occurrence of the act of violence;
20
(b) whether the victim is intellectually disabled
within the meaning of the Intellectually
Disabled Persons' Services Act 1986 or
mentally ill within the meaning of the
Mental Health Act 1986;
25
(c) whether the person who committed, or is
alleged to have committed, the act of
violence was in a position of power,
influence or trust in relation to the victim;
(d) whether the victim was threatened or
30
intimidated by the person who committed, or
is alleged to have committed, the act of
violence or any other person;
(e) the nature of the injury alleged to have been
suffered by the victim.
35
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54. Matters to which Tribunal must have regard
In determining whether or not to make an award
of assistance or the amount of assistance to award,
the Tribunal must have regard to the following:
(a) the character, behaviour (including past
5
criminal activity and the number and nature
of any findings of guilt or convictions) or
attitude of the applicant at any time, whether
before, during or after the commission of the
act of violence;
10
(b) in the case of an application by a related
victim--
(i) the character or behaviour (including
past criminal activity and the number
and nature of any findings of guilt or
15
convictions) of the deceased primary
victim of the act of violence;
(ii) any obligations owed to the applicant
and any other related victim applicants
by the deceased primary victim of the
20
act of violence;
(iii) the financial resources (including
earning capacity) and financial needs of
the applicant and any other related
victim applicants;
25
(iv) if the related victim is a close family
member of, or had an intimate personal
relationship with, the deceased primary
victim of the act of violence, the nature
of the relationship between them;
30
(c) whether the applicant provoked the
commission of the act of violence and, if so,
the extent to which the act of violence was in
proportion to that provocation;
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(d) any condition or disposition of the applicant
which directly or indirectly contributed to
his or her injury or death;
(e) whether the person by whom the act of
violence was committed or alleged to have
5
been committed will benefit directly or
indirectly from the award;
(f) any other circumstances that it considers
relevant.
55. Form of payment
10
(1) Subject to this section, an award of assistance--
(a) may be made payable in whole or in part--
(i) to the applicant; or
(ii) to any other person for the benefit of
the applicant;
15
(b) may be paid--
(i) wholly as a lump sum; or
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(ii) partly as a lump sum and partly by
instalments; or
(iii) wholly by instalments.
(2) Amounts awarded to a victim for expenses not yet
incurred are only payable on the submission of an
5
invoice or receipt relating to the particular
expense.
(3) The Tribunal may specify terms and conditions to
be complied with before any instalment is paid.
(4) The Tribunal may order that the whole or any part
10
of an award of assistance not be paid until after
the expiry of the period limited by the
Administrative Appeals Tribunal Act 1984 for
applying under section 59 of this Act for a review
of the Tribunal's decision and, if an application for
15
review is made, until after the decision of the
Tribunal on the application for review comes into
operation.
(5) Any assistance not paid to, or for the benefit of, a
person within 6 years after the awarding of that
20
assistance ceases to be payable unless it is then
being held by the Tribunal on trust for that person.
56. Interim awards
(1) Pending the final determination of an application
for assistance, the Tribunal may make an interim
25
award of assistance in any circumstances that it
considers appropriate.
(2) The Tribunal must not make an interim award
unless it is satisfied that the applicant will be, or is
likely to be, entitled to receive assistance when
30
the application is finally determined.
(3) If an interim award is made but the application for
assistance is subsequently dismissed, the amount
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of the interim award becomes a debt due to the
State by the applicant.
(4) If, on finally determining the application, the
Tribunal decides to award assistance to the
applicant, it must deduct the amount of any
5
interim award from the amount of assistance that
it would otherwise have awarded.
(5) Sections 50(2) and (3) and 55 apply to an interim
award in the same way that they apply to a final
award.
10
Division 5--Rules and Practice Notes
57. Rules
(1) The Chief Magistrate together with 2 or more
Deputy Chief Magistrates may jointly make rules
for or with respect to--
15
(a) forms;
(b) the procedure to be followed in making
applications to the Tribunal and in respect of
proceedings under this Act;
(c) the service of notices, applications, orders
20
and other documents for the purposes of this
Act;
(d) generally, any matter relating to the practice
and procedure of the Tribunal.
(2) The power of the Chief Magistrate together with 2
25
or more Deputy Chief Magistrates to jointly make
rules is subject to the rules being disallowed by a
House of the Parliament in accordance with
section 23 of the Subordinate Legislation Act
1994.
30
58. Practice directions
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(1) The Chief Magistrate may from time to time issue
practice directions, statements or notes for the
Tribunal relating to proceedings generally or any
specified class or classes of proceedings,
including the exercise by the Tribunal of its
5
discretion in relation to the costs of, and incidental
to, any such proceedings.
(2) Practice directions, statements or notes issued
under sub-section (1) must not be inconsistent
with any provision made by this Act or the rules.
10
_______________
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PART 4--REVIEW, VARIATION AND REFUNDS
Division 1--AAT Review
59. AAT review of Tribunal decisions
An application may be made to the Administrative
Appeals Tribunal for review of a final decision of
5
the Tribunal--
(a) refusing to make an award of assistance on
an application under Division 2 of Part 3;
(b) determining the amount of assistance on an
application under Division 2 of Part 3;
10
(c) refusing to vary an award under section 60;
(d) determining the amount of assistance on an
application for variation under section 60;
(e) determining under section 62(2) that a
person is required to make a refund, or
15
determining the amount of that refund.
Division 2--Variation of Award
60. Variation of award
(1) The Tribunal may, on the application of the
person to whom, or for whose benefit, an award of
20
assistance was made, vary the award (including an
award that has been previously varied) in any
manner that the Tribunal thinks fit, whether as to
the terms of the award or by increasing or
decreasing the amount of assistance awarded or in
25
some other way.
(2) The Tribunal must not make an order for variation
of an award if the application for variation is made
more than 6 years after the making of the original
award unless the person to whom, or for whose
30
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benefit, the award was made is still under 18 years
of age at the end of that period of 6 years in which
case an application may be made at any time up
until he or she turns 18.
(3) In considering an application for variation the
5
Tribunal must have regard to--
(a) any fresh evidence that has become available
since the award was made or last varied;
(b) any change of circumstances that has
occurred since the award was made or last
10
varied or that is likely to occur;
(c) any payments received by or payable to the
person to whom, or for whose benefit, an
award of assistance was made in respect of
the injury or death since the award was made
15
or last varied;
(d) anything else that the Tribunal thinks is
relevant.
(4) In exercising its power under this section, the
Tribunal must do so in accordance with the other
20
provisions of this Act relating to the payment of,
or the amount of, assistance.
Division 3--Refunds
61. Pursuing other remedies
Except as otherwise provided by this Act, the
25
making of an award of assistance does not affect
the right of a person to recover from any other
person, by civil proceedings or otherwise, any
damages, compensation, assistance or payments of
any kind.
30
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62. Refund of award
(1) If a person to whom, or for whose benefit, an
award is made receives after the making of the
award any damages, compensation, assistance or
payments of any kind not taken into account by
5
the Tribunal under section 16 on making the
award but which the Tribunal would have been
required by that section to take account of if
received before then, the person must refund--
(a) the amount of the assistance paid to him or
10
her under this Act, if it is equal to or less
than the amount of the damages,
compensation, assistance or other payments
subsequently received; or
(b) the amount of the damages, compensation,
15
assistance or other payments subsequently
received, if the amount of the assistance paid
to him or her under this Act is greater.
(2) Despite sub-section (1), if the damages,
compensation, assistance or other payments
20
subsequently received were received from a
person other than the person by whom the act of
violence was committed or alleged to have been
committed or another person on that person's
behalf, a requirement to refund only arises if the
25
Tribunal requires the person to whom, or for
whose benefit, the award was made, to do so.
(3) If an award is varied under section 60 or on a
review under section 59 by decreasing the amount
of assistance, the person to whom, or for whose
30
benefit, the award was made must refund the
amount by which the assistance paid to him or her
under this Act is decreased.
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(4) Any money that is not refunded as required by this
section may be recovered as a debt due to the
State.
_______________
5
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PART 5--MISCELLANEOUS
63. Protection of members, advocates and witnesses
(1) A member of the Tribunal has, in the exercise of
powers or performance of duties as a member, the
same protection and immunity as a judge of the
5
Supreme Court.
(2) A legal practitioner or other person appearing
before the Tribunal on behalf of a party has the
same protection and immunity as a legal
practitioner has in appearing for a party in
10
proceedings in the Supreme Court.
(3) Subject to this Act, a person summoned to attend
or appearing before the Tribunal as a witness has
the same protection, and is, in addition to the
penalties provided by the Evidence Act 1958 as
15
applied to the Tribunal by this Act, subject to the
same liabilities, as a witness in proceedings in the
Supreme Court.
64. Contempt of Tribunal
(1) A person must not--
20
(a) hinder or obstruct a member of the Tribunal
in the exercise of the powers or the
performance of the functions of the member
under this Act;
(b) interrupt any proceedings of the Tribunal;
25
(c) use insulting language towards a member of
the Tribunal when the member is exercising
powers or performing functions under this
Act;
(d) create a disturbance or take part in creating a
30
disturbance in or near a place where the
Tribunal is sitting;
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(e) do any other thing that would, if the Tribunal
were a court of record, constitute a contempt
of that court.
Penalty: 50 penalty units.
(2) Nothing in sub-section (1) limits or takes away
5
any power conferred on the Tribunal by, or
exercisable in relation to the Tribunal by virtue of,
section 37(1).
65. Inadmissibility of evidence in other proceedings
(1) Evidence of anything said on the hearing of, or of
10
any document prepared solely for the purpose of,
an application is not admissible in any civil or
criminal proceeding in a court or tribunal or in
any other legal proceeding within the meaning of
the Evidence Act 1958 except--
15
(a) a proceeding before the Tribunal or arising
out of a proceeding before the Tribunal; or
(b) a proceeding for an offence against this Act;
or
(c) a proceeding for an offence against section
20
81, 82, 83 or 83A of the Crimes Act 1958
(fraud) or for an offence of conspiracy to
commit, incitement to commit or attempting
to commit any such offence; or
(d) a proceeding for an offence against section
25
314(1) of the Crimes Act 1958 (perjury) or
for any other offence that involves an
interference with the due administration of
justice; or
(e) with the consent of the person to whom the
30
words or document principally refers or
relates.
(2) A court, tribunal or person acting judicially within
the meaning of the Evidence Act 1958 may rule
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as admissible in a proceeding before them any
matter inadmissible because of sub-section (1) if
satisfied, on the application of a party to the
proceeding, that it is in the interests of justice to
do so.
5
66. Fraud
A person must not--
(a) obtain or attempt to obtain fraudulently any
assistance under this Act, whether for
himself or herself or any other person, and
10
whether or not in collusion with any other
person; or
(b) knowingly assist any other person to obtain
fraudulently any assistance under this Act.
Penalty: 120 penalty units or imprisonment for
15
12 months or both.
67. False or misleading information
(1) A person must not in, or in relation to, an
application for assistance give information that is
false or misleading in a material particular.
20
Penalty: 120 penalty units or imprisonment for
12 months or both.
(2) In a proceeding for an offence against sub-section
(1) it is a defence to the charge for the accused to
prove that at the time at which the offence is
25
alleged to have been committed, the accused
believed on reasonable grounds--
(a) in the case of false information--that the
information was true; or
(b) in the case of misleading information--that
30
the information was not misleading.
68. Annual report
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(1) Before 30 September in each year the Tribunal
must submit a report to the Minister on the
performance by the Tribunal of its functions,
powers and duties during the year ending on the
previous 30 June.
5
(2) The Minister must cause each report under sub-
section (1) to be laid before each House of the
Parliament within 7 sitting days of that House
after it is received by the Minister.
69. Payments to and from Consolidated Fund
10
(1) The costs and expenses of establishing,
maintaining and administering the Tribunal
together with the amounts of assistance ordered
by the Tribunal or, on a review under section 59,
by the Administrative Appeals Tribunal to be paid
15
under this Act and costs and expenses awarded to
applicants shall be paid out of the Consolidated
Fund which is, by this sub-section, accordingly
appropriated to the necessary extent.
(2) If the Tribunal or, on a review under section 59,
20
the Administrative Appeals Tribunal makes an
award of assistance under this Act, it must cause
an order in writing to be drawn up and given to
the person to whom the award is made.
(3) Money is only payable out of the Consolidated
25
Fund in satisfaction of an award of assistance on
presentation of a written order of the Tribunal or
the Administrative Appeals Tribunal, as the case
requires.
(4) All money refunded under this Act or, subject to
30
section 51, otherwise paid to or recovered by the
State in accordance with this Act must be paid
into the Consolidated Fund.
70. Investment of trust money
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(1) The whole or any part of any money held by the
Tribunal on trust for a person may, except where
otherwise provided by this or any other Act,
whether already in a state of investment or not, be
invested--
5
(a) on deposit with a bank within the meaning of
the Banking Act 1959 of the Commonwealth
or a bank constituted by a law of a State or
of the Commonwealth; or
(b) in the manner in which trust money may be
10
invested by a trustee under the Trustee Act
1958.
(2) All income derived from the investment of money
under sub-section (1) must be paid to the person
beneficially entitled to the invested money.
15
71. Supreme Court--limitation of jurisdiction
It is the intention of sections 47, 48 and 63 to alter
or vary section 85 of the Constitution Act 1975.
72. Regulations
The Governor in Council may make regulations
20
for or with respect to prescribing any matter or
thing required or permitted by this Act to be
prescribed or necessary to be prescribed to give
effect to this Act.
73. Repeal of Criminal Injuries Compensation Act 1983
25
No. 9992. The Criminal Injuries Compensation Act 1983
Reprinted to
is repealed.
No. 41/1993.
74. Compensation under Sentencing Act 1991 for pain
and suffering
No. 49/1991. (1) In section 86 of the Sentencing Act 1991--
30
Reprinted to
No. 98/1995.
(a) in sub-section (1)--
Subsequently
amended by
(i) after "property" (where first occurring)
No. 22/1996.
insert "or pain and suffering";
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(ii) after "damaged)" insert "or for the pain
and suffering";
(b) in sub-section (5)(a) after "practicable"
insert "(and, in the case of an application for
compensation for pain and suffering, no later
5
than 6 months)".
(2) In section 86 of the Sentencing Act 1991, after
sub-section (9) insert--
"(9A) A court must not exercise the powers
conferred by this section to order an offender
10
to pay compensation for pain and suffering
without giving the offender a reasonable
opportunity to be heard on the application.
(9B) On deciding to grant or refuse an application
for compensation for pain and suffering, the
15
court must--
(a) state in writing the reasons for its
decision; and
(b) cause those reasons to be entered in the
records of the court.
20
(9C) The failure of a court to comply with sub-
section (9B) does not invalidate the decision
made by it on the application.".
(3) In section 86(10) of the Sentencing Act 1991,
after "damage" insert "to property or to recover
25
damages for pain and suffering".
75. New Division 2A inserted in Part 4 of Sentencing Act
1991
After Division 2 of Part 4 of the Sentencing Act
1991 insert--
30
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"Division 2A--Recovery of Assistance paid
under Victims of Crime Assistance Act 1996
"87A. Recovery of assistance paid under Victims
of Crime Assistance Act 1996
(1) If--
5
(a) a court finds a person guilty of, or
convicts a person of, a relevant offence
within the meaning of the Victims of
Crime Assistance Act 1996; and
(b) an award of assistance was made under
10
that Act in respect of an injury or death
that directly resulted from that
offence--
the court may, on the application of the
State, order the offender to pay to the State
15
an amount equal to the whole or any
specified part of the assistance awarded
together with the whole or any specified part
of any costs awarded in respect of the
application for assistance.
20
(2) An application may only be made under sub-
section (1) within the period of 6 months
after the day on which the person was found
guilty or convicted of the relevant offence.
(3) A court may require an amount payable
25
under sub-section (1) to be paid--
(a) wholly as a lump sum; or
(b) partly as a lump sum and partly by
instalments; or
(c) wholly by instalments.
30
(4) A court must not make an order under sub-
section (1) without giving the offender a
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reasonable opportunity to be heard on the
application for the order and without having
regard to--
(a) his or her financial resources (including
earning capacity) and financial needs;
5
and
(b) any obligations owed by him or her to
any other person; and
(c) any other circumstances that the court
considers relevant.
10
(5) A court is not prevented from making an
order under sub-section (1) only because it
has been unable to find out the financial
circumstances of the offender.
(6) An offender may appear on the hearing of an
15
application under sub-section (1) personally
or by a legal practitioner or, with the leave of
the court, by any other representative.
(7) The court may at any time, on the
application of the State or of the offender,
20
vary an order made under sub-section (1)
(including an order that has been previously
varied) in any manner that the court thinks
fit.
(8) Nothing in this section limits section 86 and
25
a court must give priority to an application
made under that section in relation to the
same finding of guilt or conviction and,
accordingly, may defer the determination of
an application under sub-section (1).
30
87B. Enforcement of order under section 87A
(1) An order under section 87A(1) must be taken
to be a judgment debt due by the offender to
the State and payment of any amount
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remaining unpaid under the order may be
enforced in the court by which it was made.
(2) All money paid to, or recovered by, the State
under this Division must be paid into the
Consolidated Fund.".
5
76. Transitional provisions
(1) Schedule 1 contains transitional provisions.
(2) Schedule 1 does not affect or take away from the
Interpretation of Legislation Act 1984.
__________________
10
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SCHEDULE 1
Section 76
TRANSITIONAL PROVISIONS
1. Definitions
In this Schedule--
5 "commencement day" means the day on which section 19
comes into operation;
"former Act" means the Criminal Injuries
Compensation Act 1983 as in force immediately
before its repeal;
10 "former Tribunal" means a Crimes Compensation
Tribunal appointed under the former Act;
"new Tribunal" means the Victims of Crime Assistance
Tribunal established by Part 3 of this Act.
2. Abolition of former Tribunals
15 On the commencement day--
(a) each former Tribunal is abolished and the person
appointed to be the Tribunal goes out of office as the
Tribunal;
(b) all rights, property and assets that, immediately before
20 that day, were vested in a former Tribunal are, by
force of this clause, vested in the new Tribunal;
(c) all debts, liabilities and obligations of a former
Tribunal existing immediately before that day
become, by force of this clause, debts, liabilities and
25 obligations of the new Tribunal;
(d) the new Tribunal is, by force of this clause,
substituted as a party to any proceeding pending in
any court or tribunal to which a former Tribunal was
a party immediately before that day;
30 (e) the new Tribunal is, by force of this clause,
substituted as a party to any contract or arrangement
entered into by or on behalf of a former Tribunal as a
party and in force immediately before that day;
(f) subject to this Act, any reference to a former Tribunal
35 in any Act (other than this Act) or in any subordinate
instrument within the meaning of the Interpretation
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of Legislation Act 1984 must, on and from that day,
be construed as a reference to the new Tribunal,
unless the context otherwise requires.
3. Staff of former Tribunal
5 A person who, immediately before the commencement day,
was a registrar or deputy registrar of a former Tribunal or of
the former Tribunals becomes, on and from that day but
subject to the Public Sector Management Act 1992, a
registrar or deputy registrar of the new Tribunal, as the case
10 requires.
4. Pending applications or matters
(1) An application that had been made under section 7, 25, 27
or 29 of the former Act, or a matter that was before a former
Tribunal under section 28, 31 or 32 of that Act, but had not
15 been finally determined as at the commencement day must
continue to be dealt with in accordance with the former Act
as if that Act had not been repealed.
(2) Subject to sub-clause (3), an application or matter referred
to in sub-clause (1) is to be dealt with by the new Tribunal
20 in accordance with the former Act and for that purpose--
(a) the new Tribunal has all the powers, functions and
duties of the former Tribunal under the former Act;
and
(b) anything done in relation to the application or matter
25 by the former Tribunal before the commencement day
is deemed to have been done by the new Tribunal;
and
(c) the new Tribunal may have regard to any record of
the former Tribunal relating to the application or
30 matter.
(3) If a former Tribunal had decided to conduct a hearing of an
application or matter and before the commencement day
evidence on any question of fact material to the application
or matter had been given to the former Tribunal at a hearing,
35 the former Tribunal must continue to deal with that
application or matter in accordance with the former Act
until it is finally determined.
(4) For the purpose of sub-section (3) and despite anything to
the contrary in this Act, a former Tribunal continues to exist
40 until all applications or matters referred to in sub-clause (3)
have been finally determined.
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(5) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of a former Tribunal or the
new Tribunal made under this clause after the
commencement day in respect of an application or matter
5 referred to in sub-clause (1).
(6) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (5).
(7) If any difficulty arises in relation to an application or matter
because of the operation of this clause, the Chief Magistrate
10 may make any order that he or she considers appropriate to
resolve the difficulty.
(8) The Chief Magistrate may make an order under sub-clause
(7) on the application of a party to the proceeding or matter
or on his or her own initiative.
15 5. Applications in respect of acts before the commencement day
(1) Subject to this Act, an application may be made by a person
under this Act in respect of an act of violence that occurred
before the commencement day provided that no application
by that person in the same capacity had been made under
20 section 7 of the former Act or any corresponding previous
enactment in respect of that act of violence before that day.
(2) Subject to sub-clause (3), an application cannot be made
under this Act in respect of an act of violence that occurred
before the commencement day by a person--
25 (a) who would not have been entitled to make an
application under section 7 of the former Act or any
corresponding previous enactment in respect of that
act of violence had this Act not been enacted; or
(b) who would not have been entitled to make an
30 application under this Act in respect of that act of
violence had it occurred on or after that day.
(3) Sub-clause (2) does not exclude an application in respect of
an injury that is an injury as defined in this Act but was not
an injury as defined in the former Act or any corresponding
35 previous enactment.
(4) Without limiting sub-clause (1) and despite sub-clause (2),
an application may be made under this Act in respect of an
injury (as defined in the former Act) that occurred within 1
year before the commencement day by a person who--
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(a) would have been entitled to make an application
under section 7 of the former Act in respect of that
injury had this Act not been enacted but who would
not have been entitled to make an application under
5 this Act in respect of that injury had the act of
violence occurred on or after that day; and
(b) had not made an application under the former Act in
respect of that injury before that day.
6. Applications under former Act by persons who would be
10 secondary victims under this Act
(1) Despite its repeal, an application may be made under section
7 of the former Act on or after the commencement day in
respect of an injury (as defined in that Act) that occurred
within 1 year before that day by a person who--
15 (a) would have been entitled to make an application
under this Act as a secondary victim of an act of
violence that resulted in that injury and in the death of
the primary victim of that act had that act occurred on
or after that day; and
20 (b) had not made an application under the former Act in
respect of that injury before that day.
(2) An application referred to in sub-clause (1) is to be dealt
with by the new Tribunal in accordance with the former Act
and for that purpose it has all the powers, functions and
25 duties of the former Tribunal under the former Act.
(3) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of the new Tribunal made
under this clause after the commencement day in respect of
an application referred to in sub-clause (1).
30 (4) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (3).
7. Variation of old awards
(1) Despite its repeal, section 25 of the former Act continues to
apply with respect to orders for compensation made under
35 the former Act by a former Tribunal or, in accordance with
clause 4 or 6, by the new Tribunal.
(2) An application under section 25 of the former Act made on
or after the commencement day is to be dealt with by the
new Tribunal in accordance with the former Act and for that
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purpose the new Tribunal has all the powers, functions and
duties of a former Tribunal under the former Act.
(3) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of the new Tribunal under
5 section 25 of the former Act refusing to vary an award or
determining the amount of compensation on an application
for variation of an award.
(4) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (3).
10 8. Recovery from offender
(1) Despite its repeal, section 27 of the former Act continues to
apply with respect to orders for the payment of
compensation made under the former Act by a former
Tribunal or, in accordance with clause 4 or 6, by the new
15 Tribunal.
(2) An application under section 27 of the former Act made on
or after the commencement day is to be dealt with by the
new Tribunal in accordance with the former Act and for that
purpose the new Tribunal has all the powers, functions and
20 duties of a former Tribunal under the former Act.
(3) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of the new Tribunal under
section 27 of the former Act to make an order under section
27.
25 (4) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (3).
9. Refund of old awards
(1) Despite its repeal, section 28 of the former Act continues to
apply with respect to awards of compensation made under
30 the former Act by a former Tribunal or, in accordance with
clause 4 or 6, by the new Tribunal.
(2) The new Tribunal, for the purpose of determining under
section 28(3) of the former Act that a person is required to
make a refund or the amount of that refund, has all the
35 powers, functions and duties of a former Tribunal under the
former Act.
(3) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of the new Tribunal under
section 28 of the former Act determining that a person is
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required to make a refund or determining the amount of
such a refund.
(4) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (3).
5 10. Recovery of old awards between dependants
(1) Despite its repeal, section 29 of the former Act continues to
apply with respect to awards of compensation made under
the former Act by a former Tribunal or, in accordance with
clause 4 or 6, by the new Tribunal.
10 (2) An application under section 29 of the former Act made on
or after the commencement day is to be dealt with by the
new Tribunal in accordance with the former Act and for that
purpose the new Tribunal has all the powers, functions and
duties of a former Tribunal under the former Act.
15 (3) Despite its repeal, section 26 of the former Act continues to
apply with respect to decisions of the new Tribunal under
section 29 of the former Act refusing to vary an award or
determining the amount of compensation on an application
for variation of an award.
20 (4) Division 1 of Part 4 does not apply to a decision referred to
in sub-clause (3).
11. Enforcement of old costs orders
Despite its repeal, section 32(2) of the former Act continues
to apply with respect to orders made under section 32(1) of
25 the former Act by a former Tribunal or, in accordance with
clause 4 or 6, by the new Tribunal.
12. Money held by former Tribunal
Any money held by a former Tribunal immediately before
the commencement day on trust for any person under the
30 former Act must, on and from that day, be held by the new
Tribunal on trust for the same purpose and on the same
terms.
13. Final annual report of former Tribunal
(1) Before 30 September 1997 the new Tribunal must submit a
35 report to the Minister on the performance by the former
Tribunals of their functions, powers and duties during the
year ending on 30 June 1997.
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(2) The Minister must cause the report under sub-clause (1) to
be laid before each House of the Parliament within 7 sitting
days of that House after it is received by the Minister.
14. Application of former Act and regulations
5 If a provision of the former Act continues to apply by force
of this Schedule, the following provisions also continue to
apply in relation to that provision:
(a) any other provision of the former Act necessary to
give effect to that continued provision; and
10 (b) any regulation made under the former Act for the
purposes of that continued provision.
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NOTES
i
In section 25(3) "guardian" does not have the limited meaning given by
section 3.
ii
In section 25(4) "guardian" does not have the limited meaning given by
section 3.
By Authority. Government Printer for the State of Victoria.
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