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PARLIAMENT OF VICTORIA
Victims of Crime Assistance (Amendment) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENT OF PRINCIPAL ACT 3
4. New section 1 substituted 3
1. Purpose and objectives of Act 3
5. Definitions, etc. 4
6. Assistance available to primary victims 5
7. New section 8A inserted 5
8A. Special financial assistance to primary victims for
significant adverse effects 5
8. New section 10A inserted 8
10A. Additional assistance available to certain secondary
victims 8
9. Assistance available to related victims 10
10. Effect of other entitlements 11
11. New section 27A inserted 11
27A. Information to be given by related victim applicants 11
12. Duty to act fairly and expeditiously 12
13. Procedure of Tribunal 13
14. Power to adjourn 13
15. New section 42A inserted 13
42A. Inspection of documents 13
16. Publication of material 14
17. Costs 14
18. Variation of award 14
19. Minor amendments 15
20. New section 77 inserted 15
77. Transitional provisions (Victims of Crime Assistance
(Amendment) Act 2000) 15
PART 3--AMENDMENT OF SENTENCING ACT 1991 20
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Clause Page
21. New Subdivision (1) inserted in Division 2 of Part 4 20
Subdivision (1)--Compensation for pain and suffering etc. 20
85A. Definitions 20
85B. Compensation order 21
85C. Application for compensation order 22
85D. Extension of time for making application 23
85E. Proceeding on an application 24
85F. Court must not refuse to hear and determine application
except in certain circumstances 24
85G. Evidence 25
85H. Court may take financial circumstances of offender into
account 26
85I. Court must reduce compensation by amount of any
award under Victims of Crime Assistance Act 1996 27
85J. Court to give reasons for its decision 27
85K. Costs of proceeding 27
85L. Right to bring civil proceedings unaffected 27
85M. Enforcement of order 28
Subdivision (2)--Compensation for property loss 28
22. Minor amendments 28
23. Recovery of assistance paid under Victims of Crime Assistance
Act 1996 29
24. New section 123 inserted 29
123. Transitional provisions--Victims of Crime Assistance
(Amendment) Act 2000 30
25. Consequential amendments 30
26. New section 252E inserted in Accident Compensation Act 1985 32
252E. Supreme Court--limitation of jurisdiction 32
27. New section 132C inserted in Transport Accident Act 1986 32
132C. Supreme Court--limitation of jurisdiction 33
NOTES 34
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541074B.I1-29/5/2000 BILL LA CIRCULATION 29/5/2000
PARLIAMENT OF VICTORIA
Initiated in Assembly 24 May 2000
A BILL
to amend the Victims of Crime Assistance Act 1996, the Sentencing
Act 1991, the Children and Young Persons Act 1989, the
Confiscation Act 1997, the Accident Compensation Act 1985, the
Accident Compensation (WorkCover Insurance) Act 1993 and the
Transport Accident Act 1986 and for other purposes.
Victims of Crime Assistance
(Amendment) Act 2000
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
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(a) to amend the Victims of Crime Assistance
Act 1996 to enable primary victims of acts
of violence to be given a monetary award for
significant adverse effects experienced or
5 suffered by them and to increase the amounts
that may be awarded to secondary and
related victims in certain circumstances;
(b) to amend the Sentencing Act 1991 to reform
the process by which victims may recover
10 compensation from defendants in criminal
proceedings without having to commence
civil proceedings.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
15 operation on a day to be proclaimed.
(2) If this Act does not come into operation before
1 January 2001, it comes into operation on that
day.
3. Principal Act
No. 81/1996.
20 In this Act, the Victims of Crime Assistance Act
Reprint No. 1
1996 is called the Principal Act.
as at 1 August
1997. Further
amended by
Nos 46/1998,
52/1998 and
12/1999.
_______________
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PART 2--AMENDMENT OF PRINCIPAL ACT
4. New section 1 substituted
For section 1 of the Principal Act substitute--
"1. Purpose and objectives of Act
5 (1) The purpose of this Act is to provide
assistance to victims of crime.
(2) The objectives of this Act are--
(a) to assist victims of crime to recover
from the crime by paying them
10 financial assistance for expenses
incurred, or reasonably likely to be
incurred, by them as a direct result of
the crime; and
(b) to pay certain victims of crime financial
15 assistance (including special financial
assistance) as a symbolic expression by
the State of the community's sympathy
and condolence for, and recognition of,
significant adverse effects experienced
20 or suffered by them as victims of crime;
and
(c) to allow victims of crime to have
recourse to financial assistance under
this Act where compensation for the
25 injury cannot be obtained from the
offender or other sources.
(3) Awards of financial assistance (including
special financial assistance) to victims of
crime are not intended to reflect the level of
30 compensation to which victims of crime may
be entitled at common law or otherwise.
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(4) The scheme provided by this Act is intended
to complement other services provided by
government to victims of crime.".
5. Definitions, etc.
5 (1) In section 3(1) of the Principal Act--
(a) in paragraph (b) of the definition of "injury",
after "disorder" insert "or an exacerbation of
a mental illness or disorder";
(b) after the definition of "relevant offence"
10 insert--
' "significant adverse effect", in relation to
a victim of an act of violence, includes
any grief, distress, trauma or injury
experienced or suffered by the victim as
15 a direct result of the act of violence but
does not include any loss of, or damage
to, property;'.
(2) In section 3 of the Principal Act, after sub-section
(2) insert--
20 '(3) For the purposes of section 8A--
(a) references in this Act to a primary
victim must be construed as including a
reference to a person who is a primary
victim by virtue of section 8A(1); and
25 (b) references in this Act (including the
definition of "significant adverse
effect" in sub-section (1)) to an act of
violence must be construed as if a
person who is a primary victim by
30 virtue of section 8A(1) had suffered an
injury; and
(c) references in this Act to an injury must
be construed in relation to a person who
is a primary victim by virtue of section
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8A(1) as if the significant adverse
effect experienced or suffered by that
person were an injury suffered by that
person.'.
5 6. Assistance available to primary victims
In section 8(1) of the Principal Act, after
"$60 000" insert "plus any special financial
assistance awarded in accordance with
section 8A".
10 7. New section 8A inserted
After section 8 of the Principal Act insert--
"8A. Special financial assistance to primary
victims for significant adverse effects
(1) Without limiting persons who are primary
15 victims by virtue of section 7, for the
purposes of this section a person is also a
primary victim of an act of violence if he or
she experiences or suffers any significant
adverse effect as a direct result of an act of
20 violence committed against him or her.
(2) A person may be awarded special financial
assistance by the Tribunal in accordance
with this section if the Tribunal is satisfied
that--
25 (a) an act of violence was committed
against the person; and
(b) the person has experienced or suffered
a significant adverse effect as a direct
result of that act of violence; and
30 (c) that act of violence is a category A, B,
C or D act of violence for the purposes
of this section.
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(3) The amount of special financial assistance
that may be awarded by the Tribunal in
accordance with this section is an amount up
to the level set out in sub-section (4).
5 (4) For the purposes of sub-section (3) the level
is--
(a) the minimum amount set out in the
Table in sub-section (5) in relation to
the relevant category of act of violence
10 if the Tribunal is satisfied that the
applicant has experienced or suffered
any significant adverse effect as a
direct result of the act of violence; and
(b) an increased amount up to the
15 maximum amount set out in that Table
in relation to the relevant category of
act of violence if the Tribunal is
satisfied that the applicant has suffered
any injury as defined in section 3(1) as
20 a direct result of the act of violence.
(5) The following Table sets out the minimum
and maximum amounts of special financial
assistance that may be awarded in
accordance with this section depending on
25 the category of the act of violence involved:
Category
of act of
violence Minimum amount Maximum amount
A $3500 or the $7500 or the
higher prescribed higher prescribed
amount amount applicable
applicable in in prescribed
prescribed circumstances
circumstances
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Category
of act of
violence Minimum amount Maximum amount
B $1000 or the $2500 or the
higher prescribed higher prescribed
amount amount applicable
applicable in in prescribed
prescribed circumstances
circumstances
C $500 or the $1000 or the
higher prescribed higher prescribed
amount amount applicable
applicable in in prescribed
prescribed circumstances
circumstances
D $100 or the $500 or the higher
higher prescribed prescribed amount
amount applicable in
applicable in prescribed
prescribed circumstances
circumstances
(6) For the purposes of this section the
regulations may--
(a) specify an act of violence or a class of
act of violence as a category A, B, C or
5 D act of violence; and
(b) prescribe a higher minimum or
maximum amount in relation to a
specified category of act of violence;
and
10 (c) prescribe circumstances in which the
prescribed higher minimum or
maximum amount is applicable.
(7) The Tribunal may be satisfied on the balance
of probabilities that an act of violence of a
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particular category was involved even
though--
(a) no person has been charged with, or
found guilty or convicted of, an act of
5 violence of that category in relation to
the injury; or
(b) a person has been charged with, or
found guilty or convicted of, an act of
violence of a different category in
10 relation to the injury.".
8. New section 10A inserted
After section 10 of the Principal Act insert--
'10A. Additional assistance available to certain
secondary victims
15 (1) In exceptional circumstances and within the
limit set by section 10(1), there may also be
included in the amount awarded to a
person--
(a) who is a secondary victim by virtue of
20 section 9(1); and
(b) of whom the primary victim of the act
of violence is a family member; and
(c) who was under the age of 18 years at
the time of the commission of the act of
25 violence--
an amount for other expenses actually and
reasonably incurred, or reasonably likely to
be incurred, by the secondary victim to assist
his or her recovery from witnessing the act
30 of violence.
(2) In exceptional circumstances and within the
limit set by section 10(1), there may also be
included in the amount awarded to a person
who is a secondary victim by virtue of
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section 9(2) an amount for other expenses
actually and reasonably incurred, or
reasonably likely to be incurred, by the
secondary victim to assist his or her recovery
5 from becoming aware of the act of violence.
(3) In this section "family member", in relation
to a person, means--
(a) the spouse, former spouse or de facto
spouse of that person; or
10 (b) a person who is or has been a relative
of that person; or
(c) a child who normally or regularly
resides with that person; or
(d) another person who is or has been
15 ordinarily a member of the household
of that person.
(4) For the purposes of the definition of "family
member" in sub-section (3)--
(a) a de facto spouse, in relation to a
20 person, means a person who is living or
has lived with another person as if the
other person were the spouse of that
person although not married to that
person; and
25 (b) a relative, in relation to a person,
means--
(i) a father, mother, grandfather,
grandmother, step-father, step-
mother, father-in-law or mother-
30 in-law of that person; or
(ii) a son, daughter, grandson,
granddaughter, step-son, step-
daughter, son-in-law or daughter-
in-law of that person; or
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(iii) a brother, sister, half-brother, half-
sister, brother-in-law or sister-in-
law of that person; or
(iv) an uncle, aunt, uncle-in-law or
5 aunt-in-law of that person; or
(v) a nephew or niece of that person;
or
(vi) a cousin of that person--
and includes, in the case of de facto
10 spouses, a person who would be such a
relative if the de facto spouses were
married to each other.'.
9. Assistance available to related victims
(1) In section 12 of the Principal Act, at the end of the
15 section insert--
"(2) Despite anything to the contrary in this Act,
in exceptional circumstances a related victim
may be awarded assistance by the Tribunal
despite that award of assistance causing the
20 limit set by sub-section (1) to be exceeded.".
(2) In section 13 of the Principal Act, after sub-
section (3) insert--
"(4) In exceptional circumstances, there may also
be included in the amount awarded to a
25 related 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 the
related victim to assist his or her recovery
30 from the death of the primary victim of the
act of violence.".
(3) Section 14 of the Principal Act is repealed.
(4) In section 52 of the Principal Act, paragraph (d) is
repealed.
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10. Effect of other entitlements
In section 16 of the Principal Act--
(a) for "whether or not to make an award or the
amount of any award to be made" substitute
5 "the amount (if any) to be awarded to an
applicant"; and
(b) in paragraph (a), for "must take into account"
substitute "subject to paragraph (ab), must
take into account and reduce the amount by
10 the total amount of"; and
(c) after paragraph (a) insert--
"(ab) in the case of special financial
assistance under section 8A or an
amount under section 13(2)(c), must
15 not take into account any payments
under any insurance policy (including
life and health insurance) or
superannuation scheme that the
applicant has received or has not
20 received but is entitled to receive, or
would be entitled to receive if he or she
applied for them, for the loss, expense
or other matter for which assistance is
sought from the Tribunal; and";
25 (d) in paragraph (b), for "may take into account"
substitute "in all cases but subject to
paragraph (ab), may take into account and
reduce the amount by the total amount of".
11. New section 27A inserted
30 After section 27 of the Principal Act insert--
"27A. Information to be given by related victim
applicants
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(1) An applicant who is a related victim must set
out in the application details of--
(a) every other person whom the applicant
believes may be a related victim of the
5 act of violence; and
(b) every other person whom the applicant
believes may allege that he or she is a
related victim of the act of violence;
and
10 (c) any person whom the applicant believes
may apply in accordance with
Division 4 of Part 2.
(2) It is sufficient compliance with sub-section
(1) if, in circumstances in which the
15 applicant knows of the existence of a person
or class of persons of whom he or she would
be required to give details under that sub-
section but does not know their name or
address, the applicant sets out in the
20 application all matters within his or her
knowledge that may enable the Tribunal to
ascertain their name and address.".
12. Duty to act fairly and expeditiously
In section 32 of the Principal Act, at the end of the
25 section insert--
"(2) The Tribunal must endeavour to hear and
determine together all applications made by
related victims of any one act of violence.
(3) The Tribunal is not prevented from hearing
30 and determining an application only because
there is a civil proceeding, or a proceeding
under Subdivision (1) of Division 2 of Part 4
of the Sentencing Act 1991, pending in a
court relevant to the matter.
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(4) Nothing in sub-section (3) limits the power
of the Tribunal under section 41(1) to order
an adjournment of the consideration of an
application.".
5 13. Procedure of Tribunal
In section 38(2) of the Principal Act, after
paragraph (a) insert--
"(ab) where relevant, the category of act of
violence that it was satisfied under section
10 8A was involved; and".
14. Power to adjourn
In section 41(2) of the Principal Act--
(a) omit "commence or could";
(b) after "applicant" insert "and which are
15 reasonably likely to be determined within the
next 6 months".
15. New section 42A inserted
After section 42 of the Principal Act insert--
"42A. Inspection of documents
20 (1) When the office of the Tribunal is open, the
applicant in the proceeding and, on payment
of the prescribed fee (if any) any other
person, may inspect and obtain a copy of any
document filed in a proceeding in the
25 Tribunal.
(2) Despite sub-section (1)--
(a) a person may not inspect or obtain a
copy of a document which the Tribunal
has ordered remain confidential;
30 (b) a person, not being the applicant in the
proceeding, may not, without the leave
of the Tribunal, inspect or obtain a
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copy of a document which in the
opinion of a registrar of the Tribunal
ought to remain confidential.
(3) The Tribunal may, if satisfied that it is in the
5 public interest to do so, order that--
(a) a document filed in a proceeding in the
Tribunal remain confidential; or
(b) a person have leave to inspect or obtain
a copy of a document filed in a
10 proceeding in the Tribunal.
(4) An order under this section may be made on
the application of a party or on the Tribunal's
own initiative.".
16. Publication of material
15 (1) In section 43(1) of the Principal Act, for "must not
be published except" substitute "be published".
(2) In section 43 of the Principal Act, for sub-section
(3) substitute--
"(3) Except in accordance with an order under
20 this section, a person must not publish or
cause to be published any material referred
to in sub-section (1).
Penalty: 500 penalty units in the case of a
body corporate;
25 100 penalty units or imprisonment
for 2 years in any other case.".
17. Costs
Section 48(3) of the Principal Act is repealed.
18. Variation of award
30 (1) In section 60(1) of the Principal Act, after "made"
insert "(including an award of special financial
assistance made in accordance with section 8A)".
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(2) In section 60(2) of the Principal Act, for "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" substitute
5 "was under 18 years of age when the original
award was made in which case an application may
be made at any time up until he or she turns 24".
19. Minor amendments
(1) Section 6 of the Principal Act is repealed.
10 (2) Section 30 of the Principal Act is repealed.
(3) Sections 73, 74 and 75 of the Principal Act are
repealed.
20. New section 77 inserted
After section 76 of the Principal Act insert--
15 '77. Transitional provisions (Victims of Crime
Assistance (Amendment) Act 2000)
(1) Subject to this section, the amendments of
this Act made by Part 2 of the Victims of
Crime Assistance (Amendment) Act 2000
20 (except sections 15, 16 and 18(2) of that Act)
apply only with respect to acts of violence
occurring on or after 1 July 2000 and
applications and awards made in respect of
such acts of violence.
25 (2) The amendments of this Act made by
sections 15, 16 and 18(2) of the Victims of
Crime Assistance (Amendment) Act 2000
apply to applications and awards made under
this Act in respect of acts of violence,
30 whether occurring before or on or after
1 July 2000.
(3) The amendments of this Act made by Part 2
of the Victims of Crime Assistance
(Amendment) Act 2000 apply with respect
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to acts of violence occurring before 1 July
2000 and applications and awards made in
respect of such acts of violence where--
(a) the act of violence involved the
5 commission of an offence referred to in
paragraph (b) of the definition of
"relevant offence" in section 3(1) of
this Act; and
(b) a primary victim of the act of violence
10 was under the age of 18 years at the
time of the commission of that act; and
(c) the application to the Tribunal is made
by or on behalf of a primary victim of a
kind referred to in paragraph (b); and
15 (d) the act of violence occurred--
(i) on or after 1 July 1997; or
(ii) at any time before 1 July 2000 if a
person has been (on or after 1 July
1997) committed, or directly
20 presented, for trial on a charge for
a relevant offence of a kind
referred to in paragraph (a)
committed against the applicant,
irrespective of the outcome of that
25 process; and
(e) the applicant had not made an
application under the former Act within
the meaning of Schedule 1 or any
corresponding previous enactment in
30 respect of the injury before the
commencement day within the meaning
of that Schedule; and
(f) the application is made in accordance
with sub-section (4).
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(4) For the purposes of sub-section (3) an
application--
(a) may be made in any case at any time
before 1 July 2002 or, where sub-
5 section (3)(d)(ii) applies, at any time
within 2 years after the person is
committed or presented for trial (if that
period ends on or after 1 July 2002)
and, despite anything to the contrary in
10 section 29, such an application is not
out of time within the meaning of that
section despite it not being made within
2 years after the occurrence of the act
of violence;
15 (b) subject to section 29, may be made in
any case at any time after 1 July 2002.
(5) For the purposes of sub-sections (3) and
(4)--
(a) if an act of violence occurs between
20 two dates, one before and one on or
after 1 July 1997, the act of violence
occurs on or after 1 July 1997;
(b) if an offence involved in the act of
violence is alleged to have been
25 committed between two dates, and the
primary victim of the act of violence
was under the age of 18 years at any
time during the period between those
dates, the primary victim must be taken
30 to have been under the age of 18 years
at the time of the commission of that
act.
(6) If--
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(a) an application is made under this Act
before the commencement of Part 2 of
the Victims of Crime Assistance
(Amendment) Act 2000 in respect of
5 an act of violence to which the
amendments of this Act made by that
Part apply by virtue of sub-section (3);
and
(b) the application had been finally
10 determined before that
commencement--
the award of assistance made must, on an
application under section 60 made in
accordance with sub-section (7), be varied to
15 make it consistent with the award that would
have been made in accordance with this Act
as amended by that Part if the application
had not been finally determined before that
commencement.
20 (7) Despite anything to the contrary in
section 60, for the purposes of sub-section
(6) an application for variation may be made
at any time when an application could be
made in respect of the act of violence by
25 virtue of sub-sections (3) and (4)
(disregarding paragraph (e) of sub-section
(3) for this purpose).
(8) If--
(a) Part 2 of the Victims of Crime
30 Assistance (Amendment) Act 2000
does not come into operation until after
1 July 2000; and
(b) an application is made under this Act
before the commencement of that Part
35 in respect of an act of violence that
occurred on or after 1 July 2000; and
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(c) the application had not been finally
determined as at that commencement--
the application must be dealt with and
determined after that commencement in
5 accordance with this Act as amended by that
Part.
(9) If--
(a) Part 2 of the Victims of Crime
Assistance (Amendment) Act 2000
10 does not come into operation until after
1 July 2000; and
(b) an application is made under this Act
before the commencement of that Part
in respect of an act of violence that
15 occurred on or after 1 July 2000; and
(c) the application had been finally
determined before that
commencement--
the award of assistance made must, on an
20 application under section 60, be varied to
make it consistent with the award that would
have been made as provided by sub-section
(8) if the application had not been finally
determined before that commencement.
25 (10) For the purposes of this section, if an act of
violence occurs between two dates, one
before and one on or after 1 July 2000, the
act of violence occurs on or after 1 July
2000.'.
30 _______________
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PART 3--AMENDMENT OF SENTENCING ACT 1991
21. New Subdivision (1) inserted in Division 2 of Part 4
No. 49/1991. Before section 86 of the Sentencing Act 1991
Reprint No. 5
insert--
as at
1 January
5 2000. Further 'Subdivision (1)--Compensation for pain and
amended by
suffering etc.
No. 1/2000.
85A. Definitions
(1) In this Subdivision--
"compensation order" means an order
10 under section 85B(1);
"injury" means--
(a) actual physical bodily harm; or
(b) mental illness or disorder or an
exacerbation of a mental illness or
15 disorder, whether or not flowing
from nervous shock; or
(c) pregnancy; or
(d) grief, distress or trauma or other
significant adverse effect; or
20 (e) any combination of matters
referred to in paragraphs (a), (b),
(c) and (d) arising from an
offence--
but does not include injury arising
25 from loss of or damage to property;
"medical expenses" includes dental,
optometry, physiotherapy, psychology
treatment, hospital and ambulance
expenses;
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"sexual offence" means an offence under
Subdivision (8A), (8B), (8C), (8D) or
(8E) of Division 1 of Part I of the
Crimes Act 1958 or under any
5 corresponding previous enactment or an
attempt to commit any such offence or
an assault with intent to commit any
such offence.
(2) References in this Subdivision to the victim
10 of an offence must be construed having
regard to the definition of "injury" in sub-
section (1).
85B. Compensation order
(1) If a court--
15 (a) finds a person guilty of an offence; or
(b) convicts a person of an offence--
it may, on the application of a person who
has suffered any injury as a direct result of
the offence, order the offender to pay
20 compensation of such amount as the court
thinks fit for any matter referred to in
paragraphs (a) to (d) of sub-section (2).
(2) A compensation order may be made up of
amounts--
25 (a) for pain and suffering experienced by
the victim as a direct result of the
offence;
(b) for some or all of any expenses actually
incurred, or reasonably likely to be
30 incurred, by the victim for reasonable
counselling services as a direct result of
the offence;
(c) for some or all of any medical expenses
actually and reasonably incurred, or
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reasonably likely to be incurred, by the
victim as a direct result of the offence;
(d) for some or all of any other expenses
actually and reasonably incurred, or
5 reasonably likely to be incurred, by the
victim as a direct result of the offence,
not including any expense arising from
loss of or damage to property.
(3) In sub-section (2) "offence" includes, in
10 relation to a person who has been found
guilty or convicted of an offence that was
treated by the court as a representative or
sample count, any other occurrence of the
same offence involved in the course of
15 conduct of which the count charged was
representative or a sample.
(4) In making a compensation order the court
may direct that the compensation be paid by
instalments and that in default of payment of
20 any one instalment the whole of the
compensation remaining unpaid shall
become due and payable.
85C. Application for compensation order
(1) An application for a compensation order--
25 (a) must be made within 12 months after
the offender is found guilty, or
convicted, of the offence; and
(b) may be made--
(i) by the victim; or
30 (ii) on the victim's behalf by any
person other than the offender if
the victim is a child or is
incapable of making the
application by reason of injury,
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disease, senility, illness or
physical or mental impairment; or
(iii) on the victim's behalf--
(A) if the sentencing court was a
5 court other than the
Magistrates' Court, by the
Director of Public
Prosecutions; or
(B) if the sentencing court was
10 the Magistrates' Court, by
the Director of Public
Prosecutions, the informant
or police prosecutor.
(2) Nothing in sub-section (1)(b)(iii) requires the
15 Director of Public Prosecutions or the
informant or police prosecutor (as the case
requires) to make an application on behalf of
a victim.
85D. Extension of time for making application
20 (1) A court may, on the application of a person
who wishes to apply for a compensation
order, extend the time within which an
application for a compensation order may be
made if it is of the opinion that it is in the
25 interests of justice to do so.
(2) A court may extend time under sub-section
(1) before or after the time expires and
whether or not an application for an
extension is made before the time expires.
30 (3) A court must not extend time under sub-
section (1) without giving the offender a
reasonable opportunity to be heard on the
matter.
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85E. Proceeding on an application
(1) In a proceeding on an application for a
compensation order a party--
(a) may appear personally; or
5 (b) may be represented by--
(i) a legal practitioner; or
(ii) with the leave of the court, by any
other person.
(2) A proceeding in a court on an application for
10 a compensation order made by or on behalf
of a child or other incapable person must be
taken to be a civil proceeding for the purpose
of any provision of an Act or rule of court
relating to--
15 (a) the appointment or removal, and the
power or authority, of a litigation
guardian in a civil proceeding in that
court; or
(b) the administration of money ordered to
20 be paid to a child or such an incapable
person--
and any such provision applies in relation to
a proceeding on an application for a
compensation order with any necessary
25 modifications.
85F. Court must not refuse to hear and
determine application except in certain
circumstances
(1) A court must not refuse to hear and
30 determine an application for a compensation
order unless, in its opinion, the relevant facts
do not sufficiently appear from--
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(a) evidence given at the hearing of the
charge; or
(b) any statement of the material facts
relevant to the charge given to a court
5 in a proceeding for the offence by the
prosecution and not disputed by or on
behalf of the defendant; or
(c) the available documents--
together with admissions made by or on
10 behalf of any person in connection with the
application.
(2) In sub-section (1)(c) "the available
documents" means--
(a) any written statements or admissions
15 which were made for use, and would
have been admissible, as evidence on
the hearing of the charge; or
(b) the depositions taken at the committal
proceeding; or
20 (c) any written statements or admissions
used as evidence in the committal
proceeding; or
(d) any victim impact statement made to
the court for the purpose of assisting it
25 in determining sentence, including any
medical report attached to it.
85G. Evidence
(1) On an application for a compensation
order--
30 (a) the victim or the offender may give
evidence or may call another person to
give evidence in relation to the
application; and
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(b) the victim, offender or other person
who gives evidence may be cross-
examined and re-examined; and
(c) a finding of any fact made by a court in
5 a proceeding for the offence is evidence
and, in the absence of evidence to the
contrary, proof of that fact; and
(d) the finding may be proved by
production of a document under the
10 seal of the court from which the finding
appears; and
(e) the court may have regard to any
evidence or statement referred to in
section 85F(1) and, with the consent of
15 the parties to the application, to any
available documents or admissions
referred to in that section.
(2) A court must not make a compensation order
without giving the offender a reasonable
20 opportunity to be heard on the application
for the order.
85H. Court may take financial circumstances of
offender into account
(1) If a court decides to make a compensation
25 order, it may, in determining the amount and
method of payment of the compensation,
take into account, as far as practicable, the
financial circumstances of the offender and
the nature of the burden that its payment will
30 impose.
(2) A court is not prevented from making a
compensation order only because it has been
unable to find out the financial
circumstances of the offender.
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85I. Court must reduce compensation by
amount of any award under Victims of
Crime Assistance Act 1996
If a court decides to make a compensation
5 order, it must reduce the amount of the
compensation by the amount of any award
made to the victim under the Victims of
Crime Assistance Act 1996 for the expense
or other matter for which compensation is
10 being sought under this Subdivision.
85J. Court to give reasons for its decision
(1) On deciding to grant or refuse an application
for a compensation order or to refuse to hear
and determine such an application, the court
15 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 (2) The failure of a court to comply with sub-
section (1) does not invalidate the decision
made by it on the application.
85K. Costs of proceeding
Despite any rule of law or practice to the
25 contrary or any provision to the contrary
made by or under any other Act, each party
to a proceeding under this Subdivision must
bear their own costs of the proceeding unless
the court otherwise determines.
30 85L. Right to bring civil proceedings unaffected
Nothing in this Subdivision takes away from,
or affects, the right of any person to recover
damages for any expense or other matter so
far as it is not satisfied by payment or
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recovery of compensation under this
Subdivision.
85M. Enforcement of order
Subject to section 30 of the Confiscation
5 Act 1997, a compensation order, including
costs ordered to be paid by the offender on
the proceeding for that order, must be taken
to be a judgment debt due by the offender to
the person in whose favour the order is made
10 and payment of any amount remaining
unpaid under the order may be enforced in
the court by which it was made.
Subdivision (2)--Compensation for property
loss.'.
15 22. Minor amendments
(1) In the definition of "victim" in section 3(1) of the
Sentencing Act 1991, after "damage" (where first
occurring) insert "(including grief, distress,
trauma or other significant adverse effect)".
20 (2) In section 86 of the Sentencing Act 1991--
(a) in sub-section (1) omit--
(i) "or pain and suffering"; and
(ii) "or for the pain and suffering";
(b) in sub-section (5)(a), omit "(and, in the case
25 of an application for compensation for pain
and suffering, no later than 6 months)";
(c) sub-section (6A) is repealed;
(d) in sub-section (9)(d), omit ", including any
medical report attached to it";
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(e) sub-sections (9A), (9B) and (9C) are
repealed;
(f) in sub-section (10), omit "to property or to
recover damages for pain and suffering".
5 23. Recovery of assistance paid under Victims of Crime
Assistance Act 1996
(1) In section 87A(1)(b) of the Sentencing Act
1991--
(a) after "made" insert "or varied";
10 (b) after "injury" insert "(including a significant
adverse effect within the meaning of that Act
that in accordance with that Act is required
to be regarded as an injury)".
(2) In section 87A of the Sentencing Act 1991, for
15 sub-section (2) substitute--
"(2) An application may only be made under sub-
section (1) within the period of 6 months
after--
(a) the day on which the person was found
20 guilty or convicted of the relevant
offence; or
(b) the day on which the award of
assistance was made or varied under the
Victims of Crime Assistance Act
25 1996--
whichever is the later.".
(3) Section 87A(8) of the Sentencing Act 1991 is
repealed.
24. New section 123 inserted
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After section 122 of the Sentencing Act 1991
insert--
"123. Transitional provisions--Victims of Crime
Assistance (Amendment) Act 2000
5 (1) The amendment of this Act made by a
provision of section 21 or 22 of the Victims
of Crime Assistance (Amendment) Act
2000 applies to an application under
section 86 of this Act for compensation for
10 pain and suffering made before the
commencement of that provision but heard
or determined after that commencement,
irrespective of when the offence was
committed or the finding of guilt made or
15 conviction recorded.
(2) An application to which sub-section (1)
applies must be heard and determined as if it
were an application made under
Subdivision (1) of Division 2 of Part 4.
20 (3) Subject to Subdivision (1) of Division 2 of
Part 4, an application may be made under
that Subdivision after the commencement of
section 21 of the Victims of Crime
Assistance (Amendment) Act 2000,
25 irrespective of whether the offence was
committed or the finding was made or the
conviction was recorded before or after that
commencement.
(4) The amendment of this Act made by a
30 provision of section 23 of the Victims of
Crime Assistance (Amendment) Act 2000
applies only to an application under section
87A(1) of this Act made after the
commencement of that provision.".
35 25. Consequential amendments
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(1) In section 191 of the Children and Young No. 56/1989.
Persons Act 1989-- Reprint No. 5
as at 1 July
(a) for "section 86(2)" substitute "sections 1998.
85H(1) and 86(2)";
5 (b) after "must" insert "and as if in section
85C(1)(b)(iii)(B) the reference to the
Magistrates' Court were a reference to the
Criminal Division".
No. 108/1997.
(2) In sections 33(6), 59(5) and 64(4) of the
Reprint No. 1
10 Confiscation Act 1997, for "86" substitute as at 1 July
"Division 2 of Part 4". 1998.
No. 10191.
(3) In section 138B(1) of the Accident
Reprint No. 9
Compensation Act 1985-- as at 30 June
1999.
(a) for "section 86" substitute "Subdivision (1)
15 of Division 2 of Part 4";
(b) for "order an offender to pay compensation
for pain and suffering if the compensation
would be for pain and suffering to a person"
substitute "make a compensation order
20 within the meaning of that Subdivision if the
compensation would be for a matter".
(4) In section 138B(2) of the Accident
Compensation Act 1985, for "section 86"
substitute "Subdivision (1) of Division 2 of
25 Part 4".
No. 50/1993.
(5) In sections 7(9) and 59B(1A) of the Accident
Reprint No. 5
Compensation (WorkCover Insurance) Act as at 30 June
1993, for "pain and suffering awarded under 1999.
section 86" substitute "a matter for which
30 compensation is awarded under Subdivision (1) of
Division 2 of Part 4".
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(6) In section 94(2)(c) of the Transport Accident
No. 111/1986.
Act 1986, for "pain and suffering awarded under
Reprint No. 6
as at
section 86" substitute "a matter for which
26 August
compensation is awarded under Subdivision (1) of
1999.
5 Division 2 of Part 4".
(7) In section 107A(1) of the Transport Accident
Act 1986--
(a) for "section 86" substitute "Subdivision (1)
of Division 2 of Part 4";
10 (b) for "order an offender to pay compensation
for pain and suffering if the compensation
would be for pain and suffering to a person"
substitute "make a compensation order
within the meaning of that Subdivision if the
15 compensation would be for a matter".
(8) In section 107A(2) of the Transport Accident
Act 1986, for "section 86" substitute
"Subdivision (1) of Division 2 of Part 4".
26. New section 252E inserted in Accident Compensation
20 Act 1985
In the Accident Compensation Act 1985, after
section 252D insert--
"252E. Supreme Court--limitation of jurisdiction
It is the intention of section 138B, as
25 amended by section 25 of the Victims of
Crime Assistance (Amendment) Act 2000,
to alter or vary section 85 of the
Constitution Act 1975.".
27. New section 132C inserted in Transport Accident Act
30 1986
In the Transport Accident Act 1986, after
section 132B insert--
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"132C. Supreme Court--limitation of jurisdiction
It is the intention of section 107A, as
amended by section 25 of the Victims of
Crime Assistance (Amendment) Act 2000,
5 to alter or vary section 85 of the
Constitution Act 1975.".
33
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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