2013
2013
2013-06-03
act
government
publicgeneral
act.reprint
allinforce
2013-05-07
2013-05-07
1
2013
none
act-2013-037
a9cb2630-7846-4043-be31-0a0b2774c3c3
70029161-b4f3-48d6-94fe-7255a62e52ee
Does not include amendments
by:
Cl 3 (3) of Sch 2 to this Act (cl 3 (3) repeals
Sch 4 on 4.6.2013)
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to establish a new Victims Support Scheme
to replace the compensation scheme established under the Victims Support and Rehabilitation Act
1996 and to repeal that Act; to provide for a Commissioner
of Victims Rights; and to repeal and re-enact (with minor modifications)
provisions of the Victims Rights Act
1996.
Part 1Preliminary
1Name of
Act
This Act is the Victims Rights
and Support Act 2013.
2Commencement
This Act commences on the date of assent to this
Act.
3Definitions
(1)
In this Act:
agency means any of the
following:
(a)
a Government agency,
(b)
a person or non-government agency funded by the
State to provide support services to victims of
crime.
Charter
of Victims Rights means the Charter set out in section
6.
Commissioner means the Commissioner
of Victims Rights.
conviction includes:
(a)
an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999,
and
(b)
except in Part 5, an order made under section 33
of the Children (Criminal Proceedings) Act
1987 (other than section 33 (1) (a)
(i)).
Director-General means the
Director-General of the Department of Attorney General and
Justice.
function includes a power, authority
or duty and exercise a function includes perform
a duty.
Fund means the Victims Support
Fund.
Scheme means the Victims Support
Scheme established by this Act.
support
services include welfare, health, counselling and legal
assistance services.
Tribunal means the Administrative
Decisions Tribunal.
victim of
an act of violence—see section 18.
victim of
crime—see section 5.
Victims
Advisory Board means the Victims Advisory Board established
by this Act.
victims
support—see section 18.
(2)
Notes included in this Act do not form part of
this Act.
Part 2Victims
rights
Division 1Preliminary
4Object of
Part
The object of this Part is to recognise and
promote the rights of victims of crime.
5Meaning of “victim of
crime”
(1)
For the purposes of this Part, a victim of crime is a person who
suffers harm as a direct result of an act committed, or apparently committed,
by another person in the course of a criminal offence.
(2)
A person suffers harm if, as a result of such an
act:
(a)
the person suffers actual physical bodily harm or
psychological or psychiatric harm, or
(b)
the person’s property is deliberately
taken, destroyed or damaged.
(3)
If the person dies as a result of the act
concerned, a member of the person’s immediate family is also a victim of
crime for the purposes of this Part.
(4)
If a person dies as a result of the act concerned
and there is more than one member of the person’s immediate family,
members of the immediate family may nominate a representative for the purposes
of the Charter of Victims Rights.
Division 2Charter of Victims
Rights
6Charter of rights of victims
of crime
The following comprises the Charter of rights of
victims of crime:
6.1Courtesy, compassion and
respect
A victim will be treated with courtesy,
compassion, cultural sensitivity and respect for the victim’s rights and
dignity.
6.2Information about services and
remedies
A victim will be informed at the earliest
practical opportunity, by relevant agencies and officials, of the services and
remedies available to the victim.
6.3Access to
services
A victim will have access where necessary to
available welfare, health, counselling and legal assistance responsive to the
victim’s needs.
6.4Information about
investigation of the crime
A victim will, on request, be informed of the
progress of the investigation of the crime, unless the disclosure might
jeopardise the investigation. In that case, the victim will be informed
accordingly.
6.5Information about prosecution
of accused
(1)
A victim will be informed in a timely manner of
the following:
(a)
the charges laid against the accused or the
reasons for not laying charges,
(b)
any decision of the prosecution to modify or not
to proceed with charges laid against the accused, including any decision to
accept a plea of guilty by the accused to a less serious charge in return for
a full discharge with respect to the other charges,
(c)
the date and place of hearing of any charge laid
against the accused,
(d)
the outcome of the criminal proceedings against
the accused (including proceedings on appeal) and the sentence (if any)
imposed.
(2)
A victim will be consulted before a decision
referred to in paragraph (b) above is taken if the accused has been charged
with a serious crime that involves sexual violence or that results in actual
bodily harm or psychological or psychiatric harm to the victim, unless:
(a)
the victim has indicated that he or she does not
wish to be so consulted, or
(b)
the whereabouts of the victim cannot be
ascertained after reasonable inquiry.
6.6Information about trial
process and role as witness
A victim who is a witness in the trial for the
crime will be informed about the trial process and the role of the victim as a
witness in the prosecution of the accused.
6.7Protection from contact with
accused
A victim will be protected from unnecessary
contact with the accused and defence witnesses during the course of court
proceedings.
6.8Protection of identity of
victim
A victim’s residential address and
telephone number will not be disclosed unless a court otherwise
directs.
6.9Attendance at preliminary
hearings
A victim will be relieved from appearing at
preliminary hearings or committal hearings unless the court otherwise
directs.
6.10Return of property of victim
held by State
If any property of a victim is held by the State
for the purpose of investigation or evidence, the inconvenience to the victim
will be minimised and the property returned promptly.
6.11Protection from
accused
A victim’s need or perceived need for
protection will be put before a bail authority by the prosecutor in any bail
application by the accused.
6.12Information about special bail
conditions
A victim will be informed about any special bail
conditions imposed on the accused that are designed to protect the victim or
the victim’s family.
6.13Information about outcome of
bail application
A victim will be informed of the outcome of a
bail application if the accused has been charged with sexual assault or other
serious personal violence.
6.14Victim impact
statement
A relevant victim will have access to information
and assistance for the preparation of any victim impact statement authorised
by law to ensure that the full effect of the crime on the victim is placed
before the court.
6.15Information about impending
release, escape or eligibility for absence from custody
A victim will, on request, be kept informed of
the offender’s impending release or escape from custody, or of any
change in security classification that results in the offender being eligible
for unescorted absence from custody.
6.16Submissions on parole and
eligibility for absence from custody of serious
offenders
A victim will, on request, be provided with the
opportunity to make submissions concerning the granting of parole to a serious
offender or any change in security classification that would result in a
serious offender being eligible for unescorted absence from
custody.
6.17Financial assistance for
victims of personal violence
A victim of a crime involving sexual or other
serious personal violence is entitled to make a claim under the Victims
Support Scheme.
6.18Information about complaint
procedure where Charter is breached
A victim may make a complaint about a breach of
the Charter and will, on request, be provided with information on the
procedure for making such a complaint.
7Implementation of
Charter
(1)
The Charter of Victims Rights is, as far as
practicable and appropriate, to govern the treatment of victims in the
administration of the affairs of the State.
(2)
Any agency or person exercising official
functions in the administration of the affairs of the State (other than
judicial functions) must, to the extent that it is relevant and practicable to
do so, have regard to the Charter of Victims Rights in addition to any other
relevant matter.
(3)
In this section, the administration of the affairs of the
State includes the following:
(a)
the administration of
justice,
(b)
the provision of police
services,
(c)
the administration of any department of the
Government,
(d)
the provision of services to victims of crime by
any person or non-government agency funded by the State to provide those
services.
Part 3Administration
Division 1Commissioner of Victims
Rights
8Commissioner and other
staff
(1)
A Commissioner of Victims Rights and such other
staff as are necessary for the purposes of this Act are to be employed under
Chapter 1A of the Public Sector Employment and
Management Act 2002.
(2)
The Commissioner may arrange for the use of the
services of any staff or facilities of a Government agency and may, with the
approval of the Director-General, engage such consultants or contractors as
are necessary for the purposes of this Act.
9Functions generally of
Commissioner
(1)
The Commissioner has and may exercise such
functions as are conferred or imposed on the Commissioner by or under this or
any other Act.
(2)
The Commissioner may delegate the exercise of any
function of the Commissioner (other than this power of delegation) to the
following:
(a)
any member of staff referred to in section
8,
(b)
any person of a class prescribed by the
regulations.
10Functions of
Commissioner
(1)
The Commissioner has the following
functions:
(a)
to provide information to victims of crime (and
members of the immediate family of missing persons) about support services and
assistance for victims of crime and such persons, and to assist victims of
crime in the exercise of their rights,
(b)
to co-ordinate the delivery of support services
for victims of crime and members of the immediate family of missing persons
and to encourage the effective and efficient delivery of those
services,
(c)
to promote and oversee the implementation of the
Charter of Victims Rights, including by publishing codes, guidelines and other
practical guidance on the implementation of the Charter,
(d)
to make recommendations to assist agencies to
improve their compliance with the Charter of Victims Rights, including but not
limited to conducting training and recommending changes to policies and
procedures,
(e)
to receive complaints from victims of crime (and
members of the immediate family of missing persons) about alleged breaches of
the Charter of Victims Rights and to use the Commissioner’s best
endeavours to resolve the complaints,
(f)
to recommend that agencies apologise to victims
of crime for breaches of the Charter of Victims Rights,
(g)
to conduct, promote and monitor training, public
awareness activities and research on victims of crime,
(h)
to conduct reviews and inquiries, or both, on
issues relating to victims of crime at the request of the Attorney
General,
(i)
to consider, and determine, applications under
this Act for victims support.
(2)
This section does not affect the exercise of
functions of the Director-General under the Public Sector
Employment and Management Act 2002 with respect to the
Commissioner.
11Inquiries and
investigations
The Commissioner may, in connection with the
exercise of the functions of the Commissioner under this Act, make such
inquiries and undertake such investigations as the Commissioner considers
necessary.
12Powers of Commissioner to
compel production of information
(1)
The Commissioner may, by notice in writing,
request that any person provide, or require any Government agency to provide,
the Commissioner with information (including documents) relevant to the
exercise of the Commissioner’s functions under this
Act.
(2)
Any such notice may specify a day on or before
which the information is required to be provided.
(3)
A person who provides the Commissioner with
information that the person knows is false or misleading in a material
particular is guilty of an offence.
Maximum penalty: 100 penalty units, in the case
of a corporation, and 50 penalty units in any other
case.
(4)
If documents are given to the Commissioner under
this section, the Commissioner:
(a)
may take possession of, and make copies of or
take extracts from, the documents, and
(b)
may keep possession of the documents for such
period as is necessary for the purposes of exercising the function concerned,
and
(c)
during that period must permit the documents to
be inspected at all reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Commissioner.
(5)
A Government agency is not required to provide
any information under this section if there is an overriding public interest
against the disclosure of the information for the purposes of the Government Information (Public Access) Act
2009 or if access to the information would otherwise be
denied under that Act.
13Report to
Parliament
(1)
The Commissioner may, at any time, make a special
report to the Minister for presentation to Parliament on any matter arising in
connection with the exercise of the Commissioner’s functions, including
in connection with the implementation of the Charter of Victims
Rights.
(2)
Without limiting subsection (1), the Commissioner
may make such a special report with respect to any breaches by an agency of
the Charter of Victims Rights, if the Commissioner considers it to be
appropriate to do so.
(3)
Before making the report, the Commissioner is to
advise the head of the agency concerned and consult that
head.
(4)
A copy of a report given to the Minister under
subsection (1) is to be laid before Parliament within 14 sitting days after it
is given.
(5)
The annual report of the work of the Commissioner
is to be included in the annual report of the Department of Attorney General
and Justice.
Division 2Victims Support
Fund
14Victims Support
Fund
(1)
There is established in the Special Deposits
Account a fund called the Victims Support Fund.
(2)
The Director-General has the control and
management of the Fund.
(3)
The Director-General may invest money in the
Fund:
(a)
in such manner as may be authorised by the
Public Authorities (Financial Arrangements) Act
1987, or
(b)
if that Act does not confer power on the
Department of Attorney General and Justice to invest that money—in any
manner authorised for the investment of trust
funds.
15Payments into
Fund
The following are to be paid into the
Fund:
(a)
all proceeds confiscated under the Confiscation of Proceeds of Crime Act
1989,
(b)
all money required by the Criminal Assets Recovery Act 1990 to be
credited to the Fund,
(c)
all money recovered under Parts 5 and 7 of this
Act,
(d)
all money advanced to the Fund by the Treasurer,
or appropriated by Parliament, for the purposes of this
Act,
(e)
all other money required by or under this or any
other Act to be paid into the Fund,
(f)
all fines paid for offences under section 89
(Avoidance of liabilities).
16Payments from
Fund
The following are to be paid from the
Fund:
(a)
all payments with respect to victims support
under this Act,
(b)
all expenses incurred by the Commissioner and
other staff in the exercise of their functions under this
Act,
(c)
all expenses incurred by the Commissioner and the
Victims Advisory Board under this Act and any other expenses incurred in the
provision of victims support services (including Tribunal and other
administration expenses) approved by the Minister,
(d)
all fees to which the NSW Trustee and Guardian is
entitled under section 53 of the Confiscation of
Proceeds of Crime Act 1989,
(e)
all expenses incurred in the administration or
management of the Fund,
(f)
all other payments required by or under this Act
to be paid from the Fund.
Part 4Victims Support
Scheme
Division 1Preliminary
17Object of
Part
The object of this Part is to establish a scheme
for the provision of support for victims of acts of
violence.
18Definitions
In this Act:
act of
violence—see section 19.
approved means approved by the
Commissioner.
approved
counselling services—see section 31.
family
victim—see section 22.
financial
support means the following:
(a)
financial assistance for immediate needs under
section 26 (1) (b) or 29 (1) (b),
(b)
financial assistance in respect of economic loss
under section 26 (1) (c), 27 or 29 (1) (d),
(c)
funeral expenses under section 29 (1)
(c).
grievous
bodily harm includes the destruction (other than in the
course of a medical procedure) of the foetus of a pregnant woman, whether or
not the woman suffers any other harm.
injury means actual bodily harm,
grievous bodily harm or psychological or psychiatric harm but does not include
injury arising from loss or damage to property.
primary
victim—see section 20.
recognition payment—see
section 34.
secondary
victim—see section 21.
sexual
assault and domestic violence—see section 19
(8).
victim of
an act of violence means a primary victim, secondary victim
or family victim of the act of violence.
victims
support means support in the form of approved counselling
services, financial support or a recognition payment under the
Scheme.
19Meaning of “act of
violence”
(1)
In this Act, act of violence means an act or
series of related acts, whether committed by one or more persons:
(a)
that has apparently occurred in the course of the
commission of an offence, and
(b)
that has involved violent conduct against one or
more persons, and
(c)
that has resulted in injury or death to one or
more of those persons.
(2)
For the avoidance of doubt, the reference to an
offence in subsection (1) (a) extends to conduct of a person that would
constitute an offence were it not for the fact that the person cannot, or
might not, be held to be criminally responsible for the conduct because of the
person’s age or mental illness or impairment.
(3)
For the purposes of this section, violent conduct
extends to sexual assault and domestic violence.
(4)
Except as provided by subsections (5) and (6), a
series of
related acts is two or more acts that are related
because:
(a)
they were committed against the same person,
and
(b)
in the opinion of the Tribunal or the
Commissioner:
(i)
they were committed at approximately the same
time, or
(ii)
they were committed over a period of time by the
same person or group of persons, or
(iii)
they were, for any other reason, related to each
other.
(5)
An act is not related to another act if, in the
opinion of the Tribunal or the Commissioner, having regard to the particular
circumstances of those acts, they ought not to be treated as related
acts.
(6)
An act is not related to any earlier act in
respect of which support is given under this Act if it occurs after the
support is given.
(7)
For the purposes of this Act, a series of related
acts, whether committed by one or more persons, constitutes a single act of
violence.
(8)
In this Act:
sexual
assault and domestic violence means any of the
following:
(a)
sexual intercourse (within the meaning of section
61H of the Crimes Act 1900)
with a person without his or her consent or with consent obtained by means of
a non-violent threat,
(b)
sexual intercourse (within the meaning of section
61H of the Crimes Act 1900)
with a child under the age of 16 years or with a person having a cognitive
impairment (within the meaning of that section),
(c)
self-manipulation (within the meaning of section
80A of the Crimes Act 1900)
which a person is compelled to engage in because of a threat (within the
meaning of that section),
(d)
the commission of an act of indecency with or
towards a child under the age of 16 years or the commission of an act of
indecency on or in the presence of any person in connection with an assault on
the person,
(e)
participation with a child under the age of 18
years in an act of child prostitution (within the meaning of section 91C of
the Crimes Act 1900) or the use of a child
under the age of 18 years for the production of child abuse material (within
the meaning of section 91FB of the Crimes Act
1900),
(f)
any other act resulting in injury that occurred
in the commission of a personal violence offence (within the meaning of the
Crimes (Domestic and Personal Violence) Act
2007) against any of the following persons:
(i)
a person who is or has been married to the person
who committed the offence,
(ii)
a person who is or has been a de facto partner of
the person who committed the offence,
(iii)
a person who has or has had an intimate personal
relationship with the person who committed the offence, whether or not the
intimate relationship involves or has involved a relationship of a sexual
nature,
(iv)
a person who, at the time of the offence, was
living in the same household as the person who committed the
offence,
(v)
a person who, at the time of the offence, was
living as a long-term resident in the same residential facility as the other
person (not being a facility that is a correctional centre within the meaning
of the Crimes (Administration of Sentences)
Act 1999 or a detention centre within the meaning of the
Children (Detention Centres) Act
1987),
(vi)
a person who, at the time of the offence, had a
relationship involving his or her dependence on the ongoing paid or unpaid
care of the person who committed the offence,
(vii)
a person who is or has been a parent, guardian or
step-parent of the person who committed the offence,
(viii)
a person who is or has been a child or step-child
of the person who committed the offence, or some other child of whom the
person is the guardian,
(ix)
a person who is or has been a brother, sister,
half-brother, half-sister, step-brother or step-sister of the person who
committed the offence.
20Meaning of “primary
victim”
(1)
A primary
victim of an act of violence is a person who is injured, or
dies, as a direct result of that act.
(2)
A primary victim of an act of violence extends to
a person who is injured, or dies, as a direct result of:
(a)
trying to prevent another person from committing
that act, or
(b)
trying to help or rescue another person against
whom that act is being committed or has just been committed,
or
(c)
trying to arrest another person who is
committing, or who has just committed, that act.
21Meaning of “secondary
victim”
(1)
A secondary
victim of an act of violence is a person who is injured as a
direct result of witnessing the act of violence that resulted in the injury
to, or death of, the primary victim of that act.
(2)
A secondary victim of an act of violence extends
to a person who is injured as a direct result of subsequently becoming aware
of the act of violence that resulted in the injury to, or death of, the
primary victim of that act, but only if:
(a)
the person is the parent or guardian of the
primary victim of that act, and
(b)
the primary victim was under the age of 18 years
at the time of that act, and
(c)
the person did not commit that
act.
The person is taken, for the purposes of this
Act, to have witnessed the act of violence.
(3)
For the purposes of this section, a primary
victim does not include a person who is a primary victim only because of the
operation of section 20 (2).
22Meaning of “family
victim”
(1)
A family
victim of an act of violence is a person who is, at the time
that act is committed, a member of the immediate family of a primary victim of
that act who has died as a direct result of that act.
(2)
It is immaterial whether or not the person
suffers an injury in connection with the act of violence or
death.
(3)
A member of
the immediate family of a primary victim is:
(a)
the victim’s spouse, or
(b)
the victim’s de facto partner who has
cohabited with the victim for at least 2 years, or
(c)
a parent, guardian or step-parent of the victim,
or
(d)
a child or step-child of the victim or some other
child of whom the victim is the guardian, or
(e)
a brother, sister, half-brother, half-sister,
step-brother or step-sister of the victim.
Note—
“De facto partner” is defined in
section 21C of the Interpretation Act
1987.
Division 2Eligibility for
support
23Eligibility for
support
(1)
A primary victim of an act of violence is
eligible for the support under the Scheme described in section
26.
(2)
A parent, step-parent or guardian who is caring
for a child who is a primary victim of an act of violence is eligible for the
support under the Scheme described in section 27.
(3)
A secondary victim of an act of violence is
eligible for the support under the Scheme described in section
28.
(4)
A family victim of an act of violence is eligible
for the support under the Scheme described in section
29.
24Death of
victim
(1)
A primary victim who dies ceases to be eligible
for support under the Scheme, but a family victim may then become eligible for
support under the Scheme. Any pending application for support made by or on
behalf of the primary victim does not survive the death of the primary
victim.
(2)
A family victim who dies ceases to be eligible
for victims support. Any pending application made by or on behalf of a family
victim does not survive the death of the family victim.
25Persons not eligible for
support
(1)Claimants for court
compensation awards
A person is not eligible to receive victims
support in respect of an act of violence if the person has been paid, or is
entitled to be paid, compensation awarded by a court in respect of that act
under Part 6 or if the person’s application for such compensation is
pending.
(2)Motor vehicle
accidents
A person is not eligible to receive victims
support in respect of an act of violence if that act took the form of, or the
injury arose as a consequence of, a motor accident within the meaning of the
Motor Accidents Compensation Act
1999.
(3)Offenders
A person is not eligible to receive victims
support in respect of an act of violence if it occurred while the person was
engaged in behaviour constituting an offence.
(4)Convicted
inmates
A person is not, except as provided by subsection
(5), eligible to receive victims support in respect of an act of violence if
it occurred while the person was imprisoned as a convicted inmate within the
meaning of the Crimes (Administration of Sentences)
Act 1999 (unless the person was imprisoned only because of
the person’s failure to pay a pecuniary penalty).
(5)Exception to ineligibility of
convicted inmates
However, any such convicted inmate may, in
special circumstances, receive victims support. Any such support is not to be
given unless the Commissioner is satisfied that the special circumstances of
the case justify an exception being made to the general ineligibility of
convicted inmates.
(6)
Without limiting subsection (5), the Commissioner
may determine that special circumstances exist if the convicted inmate is
seriously and permanently injured as a result of the act of violence
concerned.
(7)
Regulations may be made for the purposes of this
section prescribing the persons, or class of persons, who are not eligible to
receive victims support in respect of an act of
violence.
Division 3Composition of
support
26Composition of
support—primary victims
(1)
The support under the Scheme for which a primary
victim of an act of violence is eligible comprises the following:
(a)
approved counselling services with respect to
that act of violence,
(b)
financial assistance for immediate needs up to a
maximum amount in total prescribed by the regulations to cover expenses for
treatment or other measures that need to be taken urgently, as a direct result
of that act of violence, to secure the victim’s safety, health or well
being,
(c)
financial assistance of up to a maximum amount in
total prescribed by the regulations for the economic loss suffered by the
primary victim as a direct result of that act of violence of a kind described
in the regulations,
(d)
if a recognition payment is payable under this
Part in respect of the act of violence—that recognition
payment.
(2)
Financial assistance for which a primary victim
of an act of violence is eligible is reduced by the total amount paid or
approved for payment to the victim’s parent, step-parent or guardian
under section 27 in respect of that act of violence.
27Composition of
support—parent, step-parent or guardian of child primary
victim
(1)
A parent, step-parent or guardian who is caring
for a child who is the primary victim of an act of violence is eligible for
financial assistance of up to a maximum amount in total prescribed by the
regulations for the economic loss arising as a direct result of that act of
violence of a kind described in the regulations.
(2)
Financial assistance for which a parent,
step-parent or guardian is eligible under this section is reduced by the total
amount paid or approved for payment to the primary victim under section 26 (1)
(c) in respect of that act of violence.
28Composition of
support—secondary victims
The support under the Scheme for which a
secondary victim of an act of violence is eligible comprises approved
counselling services with respect to the act of
violence.
29Composition of
support—family victims
(1)
The support under the Scheme for which a family
victim of an act of violence is eligible comprises the following:
(a)
approved counselling
services,
(b)
financial assistance for immediate needs up to a
maximum amount in total prescribed by the regulations to cover expenses of
measures that need to be taken urgently, as a direct result of that act of
violence, to secure the victim’s safety, health or well being (less any
amount payable under section 47),
(c)
a payment of up to a maximum amount in total
prescribed by the regulations for funeral expenses actually incurred, or
reasonably likely to be incurred, by the family victim for the funeral of the
primary victim who died as a result of that act of violence (less any amount
payable under section 47),
(d)
financial assistance of up to a maximum amount in
total prescribed by the regulations for economic loss suffered by the family
victim as a direct result of that act of violence of a kind described in the
regulations.
(2)
If more than one family victim is eligible for a
payment under subsection (1) (c) in relation to the same act of violence, the
total amount that may be granted for funeral expenses to all such family
victims is the maximum amount prescribed by the regulations, less any amount
payable under section 47.
Note—
Section 47 provides for direct reimbursement of
funeral expenses to persons other than family victims.
(3)
In addition, if a recognition payment is payable
under this Part in respect of the relevant act of violence, each family member
who is a parent, step-parent or guardian or a dependent family member is
eligible to be given that recognition payment.
(4)
A family victim is a dependent
family member for the purposes of this section if:
(a)
the person was financially dependent on the
primary victim at the relevant time, or
(b)
the person is a child of the primary victim born
after the death of the victim where, had the child been born in the
victim’s lifetime, the child would have been a financially dependent
family member of the victim by virtue of paragraph
(a).
30Financial
assistance
(1)
Financial assistance under this Part may take the
form of a grant, allowance, refund of expenditure, direct payment of an
invoice, or any other form of financial assistance that the Commissioner may
approve generally, or in a particular case or class of
cases.
(2)
Financial assistance is not payable to a victim
of an act of violence or the parent, step-parent or guardian of a victim, to
the extent that the victim, parent, step-parent or guardian has received, or
is entitled to receive, payment for that loss arising from that act of
violence under any insurance or agreement or arrangement under any other Act
or law.
(3)
The regulations may make provision for or with
respect to any of the following:
(a)
the particular kinds of expenses for immediate
needs or economic loss for which a person may or may not be given financial
assistance under this Part,
(b)
the maximum amount that a person may be given
under this Part in respect of a particular kind of expense for immediate needs
or for economic loss,
(c)
the circumstances in which a person may be given
financial assistance,
(d)
the maximum amount that a person may be given
under this Part in respect of a particular kind of economic
loss.
Division 4Approved counselling
services
31Approved counselling
services
(1)
The Commissioner may:
(a)
approve professional counsellors who may provide
approved counselling services for the purposes of this Act,
or
(b)
in the case of counselling services to be
provided to a victim of an act of violence who is resident outside
Australia—give approval for the victim to select a professional
counsellor of the victim’s choice to provide the victim with approved
counselling services for the purposes of this Act.
(2)
The Commissioner may:
(a)
suspend or revoke an approval,
and
(b)
make an approval subject to conditions,
and
(c)
vary or revoke any condition of an approval or
impose additional conditions on an approval.
32Authorisation of payments for
approved counselling services
(1)
The regulations may make provision for or with
respect to the authorisation of payments for or in relation to approved
counselling services provided to victims of acts of violence (whether resident
in Australia or elsewhere), including the application (with or without
modification) of the provisions of this Act relating to financial support or
recognition payments.
(2)
The regulations may make provision for or with
respect to the provision of approved counselling services, and authorisation
of payments for such services, to persons who are relatives of primary victims
who have died as a result of an act of violence, but who are not family
victims within the meaning of this Act.
33Amount of
payments
(1)
Payment for or in relation to approved
counselling services under this Act may take the form of a grant, allowance,
refund of expenditure, direct payment of an invoice, or any other form of
payment that the Commissioner may approve generally, or in a particular case
or class of cases.
(2)
The amount of the payment for approved
counselling services is the amount, or amount determined in the manner,
prescribed by the regulations.
Division 5Recognition
payments
34Definitions
In this Division:
category
of recognition payment means a category of recognition
payment described in section 35.
indecent
assault means the commission of an act of indecency with or
towards a child under the age of 16 years or the commission of an act of
indecency on or in the presence of any person in connection with an assault on
the person.
recognition payment means a payment
made in recognition of the trauma suffered by a victim of an act of
violence.
series of
related acts has the same meaning as in section 19
(4).
sexual
assault has the meaning it has in paragraph (a), (b), (c) or
(e) of the definition of sexual
assault and domestic violence in section 19
(8).
35Categories of recognition
payment
(1)
A category
A recognition payment is a payment given in respect of an
act of violence that apparently occurred in the course of the commission of a
homicide.
(2)
A category
B recognition payment is a payment given in respect of an
act of violence of the following kinds:
(a)
a sexual assault resulting in serious bodily
injury or which involved an offensive weapon or was carried out by 2 or more
persons,
(b)
a sexual assault, indecent assault or attempted
sexual assault involving violence that is one of a series of related
acts.
(3)
A category
C recognition payment is a payment given in respect of an
act of violence involving any of the following:
(a)
a sexual assault other than one referred to in
subsection (2) (b),
(b)
an attempted sexual assault resulting in serious
bodily injury,
(c)
an assault resulting in grievous bodily
harm,
(d)
physical assault of a child that is one of a
series of related acts.
(4)
A category
D recognition payment is a payment given in respect of an
act of violence involving any of the following:
(a)
an indecent assault,
(b)
an attempted sexual assault involving violence
other than one referred to in subsection (3) (b),
(c)
a robbery involving violence,
(d)
an assault (not resulting in grievous bodily
harm).
36Recognition
payments
(1)
Recognition payments are payable as
follows:
(a)
a category A recognition payment of an amount
prescribed by the regulations is payable to a family victim who, immediately
before the death of a primary victim of an act of violence described in
section 35 (1), was financially dependent on the primary
victim,
(b)
a category A recognition payment of an amount
prescribed by the regulations is payable to each parent, step-parent or
guardian of a primary victim who died as a result of an act of violence
described in section 35 (1),
(c)
a category B recognition payment of an amount
prescribed by the regulations is payable to a primary victim who suffered
injury as a result of an act of violence described in section 35
(2),
(d)
a category C recognition payment of an amount
prescribed by the regulations is payable to a primary victim who suffered
injury as a result of an act of violence described in section 35
(3),
(e)
a category D recognition payment of an amount
prescribed by the regulations is payable to a primary victim who suffered
injury as a result of an act of violence described in section 35
(4).
(2)
Only one recognition payment is payable to a
single victim in respect of a series of related acts of violence against the
victim.
37Regulations
The regulations may make provision for or with
respect to:
(a)
the kind of acts of violence in respect of which
a particular category of recognition payment may be made under this Division,
or
(b)
the circumstances in which a recognition payment
is payable under this Division.
Division 6Applications for victims
support
38Applications for victims
support
(1)
An application for victims support may be made by
the following:
(a)
a victim of an act of
violence,
(b)
a parent, step-parent or guardian of a primary
victim who is a child,
(c)
any other person, on behalf of a victim, who has
a genuine interest in the welfare of that victim.
(2)
The application is to be made to the Commissioner
in the approved form, which is to be supplied by the Commissioner free of
charge.
39Documentary
evidence
(1)
An application for victims support is to be
accompanied by such documentary evidence as may be required by the approved
form.
(2)
Without limiting subsection (1), the documentary
evidence to be required:
(a)
for an application for financial assistance for
immediate needs under section 26—is documentary evidence (such as a
medical or police report) sufficient to support, on the balance of
probability, the applicant’s claim to be a victim of an act of violence,
and
(b)
for an application for financial assistance for
economic loss under section 26 or 27 or for a recognition payment—is a
police report or report of a Government agency and a medical, dental or
counselling report verifying that the applicant or child who is the primary
victim concerned has actually been injured as a result of an act of
violence.
(3)
An application for financial assistance under
section 26 (1) (c), 27 or 29 is to give full particulars of any economic loss
for which the assistance is sought.
(4)
The application is to include:
(a)
in the case of actual expenses—receipts,
invoices or other approved forms of substantiation of the expenditure incurred
or to be incurred, or
(b)
in the case of actual loss of earnings—the
name and address of the employer, the period of absence from work and a
statement from the employer substantiating those
particulars.
40Time for lodging, and duration
of, applications
(1)
Except as provided by subsections (2) and (3), an
application for financial support must be duly made within 2 years after the
relevant act of violence occurred or, if the victim was a child when the act
of violence occurred, within 2 years after the day on which the child
concerned turns 18 years of age.
(2)
An application for financial support or a
recognition payment may be made by a family victim more than 2 years after the
relevant act of violence that resulted in the death of the primary victim
occurred if it was only established (whether or not by a court) that the
primary victim died as a direct result of the relevant act of violence
subsequently to the occurrence.
(3)
In the circumstances described in subsection (2),
an application for financial support may be duly made within 2 years after it
is established that the primary victim died as a direct result of the relevant
act of violence.
(4)
Except as provided by subsection (5), an
application for a recognition payment must be duly made within 2 years after
the relevant act of violence occurred or, if the victim was a child when the
act of violence occurred, within 2 years after the day on which the child
concerned turns 18 years of age.
(5)
An application for a recognition payment in
respect of an act of violence involving domestic violence, child abuse or
sexual assault must be duly made within 10 years after the relevant act of
violence occurred or, if the victim was a child when the act of violence
occurred, within 10 years after the day on which the child concerned turns 18
years of age.
(6)
Claims may continue to be made under an
application that is duly made in respect of an act of violence until whichever
of the following first occurs:
(a)
the expiration of the period of 5 years after the
application is made,
(b)
the total maximum amount of financial support
that the victim is eligible to receive under this Act in respect of that act
of violence has been given.
(7)
This section (other than subsection (6)) does not
apply to an application for financial support, being for financial assistance
of a kind specified in clause 8 (2) (b) or (d) of the Victims Rights and Support Regulation
2013, or a recognition payment for a person who is a
primary victim of an act of violence that occurs in the course of the
commission of a sexual offence against the person when the person is under 18
years of age. There is no time limit on when such an application can be
made.
41Withdrawal of
application
(1)
An applicant for victims support may withdraw his
or her application at any time before the application is determined by written
notice to the Commissioner.
(2)
The withdrawal of an application for victims
support under this section does not prevent the applicant from making another
application for support.
42Consideration of
applications
(1)
Each duly made application for victims support is
to be considered by the Commissioner.
(2)
The Director-General or any other public servant
may not direct, overrule or interfere with a determination of the Commissioner
with respect to an application for victims support.
43Determination of
applications
(1)
After considering an application for victims
support, the Commissioner must determine the application:
(a)
by approving the giving of the victims support,
or
(b)
by dismissing the
application.
(2)
The Commissioner may defer the determination of
the application if the Commissioner is of the opinion that there are relevant
matters requiring further consideration or clarification.
Note—
Section 11 enables the Commissioner to carry out
inquiries and investigations with respect to
applications.
(3)
The Commissioner must not approve the giving of
victims support unless satisfied that the person to whom the application
relates:
(a)
is a primary victim, secondary victim or family
victim of an act of violence or is a parent, step-parent or guardian who is
caring for a child who is a primary victim of an act of violence,
and
(b)
is eligible to receive the victims support
concerned.
(4)
Written notice is to be given to the applicant of
the determination of the application.
(5)
If approval is given, the notice must include a
statement of the amount (if any) payable by way of financial support
(including whether for immediate needs or economic loss, or both) or by way of
recognition payment, together with a statement of the reasons for approving
the giving of those amounts.
(6)
If the application is dismissed, the notice must
include a statement of the reasons for the dismissal.
44Reasons for not approving the
giving of victims support or for reducing amount of financial support or
recognition payment
(1)
In determining whether or not to approve the
giving of victims support, and in determining the amount of financial support
to be given or recognition payment to be made, the Commissioner must have
regard to the following:
(a)
any behaviour (including past criminal activity),
condition, attitude or disposition of the primary victim concerned that
directly or indirectly contributed to the injury or death sustained by the
victim,
(b)
whether the act of violence was reported to a
police officer within a reasonable time,
(c)
whether the act of violence was reported to a
relevant health professional or practitioner, or a relevant
agency,
(d)
whether the victim participated in the commission
of the act of violence, encouraged another person to commit the act of
violence or otherwise gave assistance to any person by whom the act of
violence was committed,
(e)
whether the victim has failed to provide
reasonable assistance to any person or 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,
(f)
whether the victim failed to take reasonable
steps to mitigate the extent of the injury sustained by the victim, such as
seeking appropriate medical advice or treatment, as soon as practicable after
the act of violence was committed,
(g)
such other matters as the Commissioner considers
relevant.
(2)
In determining whether a matter relating to a
victim was reported to a police officer within a reasonable time, the
Commissioner may have regard to such matters as the Commissioner considers
relevant, including the following:
(a)
the age of the victim when the act of violence is
alleged to have occurred,
(b)
any intellectual or psychiatric disability to
which the victim is subject,
(c)
the nature of the relationship between the victim
and the person or persons by whom the act of violence is alleged to have been
committed,
(d)
any fear of retaliation by any such person or
persons to which the victim is subject,
(e)
the nature of any injury alleged to have been
sustained by the victim,
(f)
any representation made by or on behalf of a
police officer to a victim as to whether he or she should withdraw his or her
complaint in relation to the act of violence or consent to no further action
being taken in relation to the act of violence.
(3)
In determining the matter referred to in
subsection (1) (f) in the case of an act of violence involving sexual assault
or domestic violence, the Commissioner must have regard to the nature of the
relationship between the victim and the person or persons by whom the act of
violence is alleged to have been committed.
(4)
In determining the amount of financial support to
be given or the recognition payment to be made to a person, the Commissioner
must have regard to:
(a)
any amount that has been paid to the person or
that the person is entitled to be paid:
(i)
by way of damages awarded in civil proceedings,
or
(ii)
under any other Act or law (including workers
compensation), or
(iii)
under any insurance or other agreement or
arrangement, and
(b)
any other amount that has been received by the
person or that (in the opinion of the Commissioner) is likely to be received
by the person,
in respect of the act of violence to which the
application for financial support or a recognition payment
relates.
(5)
If the Commissioner is satisfied that the
applicant may be entitled to workers compensation (or payment in the nature of
workers compensation) in respect of the act of violence to which the
application relates, the Commissioner is to postpone the determination of the
application until any entitlements to workers compensation have been
determined.
(6)
If the Commissioner is satisfied that the
applicant may be entitled to death and disability payments under Part 9B of
the Police Act 1990 in respect of the act of
violence to which the application relates, the Commissioner is to postpone the
determination of the application until any entitlements to those payments have
been determined.
(7)
The Commissioner may postpone the determination
of a person’s application pending the determination of another
application for financial support or a recognition payment if the person has
been convicted of an offence that is a relevant offence under section 58 in
relation to that other application.
45Determination for restitution
may be set off against amount of financial support or recognition
payment
(1)
For the purpose of giving effect to a
determination for restitution under Part 5 that has been made or is to be made
against a person in respect of whom approval for the giving of financial
support or making of a recognition payment has been given, the Commissioner
may reduce the amount of financial support to be given or recognition payment
to be made by the amount of the determination for restitution or proposed
determination for restitution.
(2)
On the reduction under this section of the amount
of victims support to be given or made, the person is taken to have paid the
amount of the determination or proposed determination for restitution to the
extent of the reduction.
46Persons to whom financial
support or recognition payment may be made
(1)
The financial support or recognition payment
approved by the Commissioner under section 43 may be made payable:
(a)
to the person to whom the application for such
victims support relates, or
(b)
to any other person for the benefit of that
person.
(2)
In making a decision as to whom the victims
support should be made payable, the Commissioner must have regard to the
likelihood that a person by whom an act of violence was allegedly committed
may receive the benefit of the victims support or any part of
it.
(3)
Sections 77, 78 and 79 of the Civil Procedure Act 2005 apply to money
payable under this section in the same way as they apply to money recovered as
referred to in section 77 (1) of that Act.
47Reimbursement of persons who
incur funeral and certain other expenses
(1)
This section applies if the following expenses
have been incurred by a person who is not eligible for support in the form of
financial assistance for immediate needs or payment of funeral expenses under
section 29 as a family victim:
(a)
expenses relating to the funeral of a primary
victim of an act of violence,
(b)
expenses associated with cleaning up damage
caused to premises and property as a direct result of an act of
violence.
(2)
The person may apply to the Commissioner for
payment of the amount of the reasonable expenses incurred by the
person.
(3)
The Commissioner may approve payment to the
person of an amount not exceeding the maximum amount in total prescribed by
the regulations and that the Commissioner considers to be fair and
reasonable.
(4)
Any such payment:
(a)
is to be paid from the amount of financial
assistance for immediate needs or payment of funeral expenses for which the
family victims are eligible under section 29, and
(b)
is taken to be an approval for the giving of such
financial assistance despite section 29.
(5)
Accordingly, and despite section 29, the amount
payable to the family victims concerned may be reduced if an application for
payment of reasonable expenses is approved by the Commissioner under this
section.
48Victims support may be
approved subject to conditions
(1)
Approval for the giving of financial support or
making of a recognition payment may be given by the Commissioner subject to
any of the following conditions:
(a)
notification to the Commissioner of such matters
(including matters relating to the financial circumstances of the person to or
for whose benefit the approval is given) as may be specified in the notice of
determination relating to the approval,
(b)
assignment by the person to or for whose benefit
the approval is given of that person’s right to any entitlement that the
person has by way of damages awarded in civil proceedings,
(c)
repayment of the whole or any part of the amount
of the financial support or recognition payment under such circumstances as
may be specified in the notice of determination relating to the
approval,
(d)
in the case of victims support that is payable to
a person for the benefit of some other person:
(i)
as to the payment of the money received under the
approval to or for the benefit of that other person, or
(ii)
as to the holding of the whole or any part of
that money on trust for that other person.
(2)
An approval of victims support is subject to the
following conditions:
(a)
the person to or for whose benefit the approval
is given (other than a family victim) must notify the Commissioner of any
money received in the future from other sources in connection with the
injuries, expenses and losses taken into account in giving the
approval,
(b)
the person to or for whose benefit the approval
is given (other than a family victim) must repay from the amount approved any
such future amounts referred to in paragraph (a) on demand by the
Commissioner,
(c)
the person to or for whose benefit the approval
is given must repay to the Commissioner the amount approved if it is
subsequently ascertained that the approval was obtained by fraud or
collusion,
(d)
the person to or for whose benefit the approval
is given (if a primary victim of an act of violence) is to provide reasonable
assistance to any person or body engaged in the official investigation of the
act of violence.
(3)
The regulations may prescribe other conditions to
which an approval of victims support is subject.
(4)
An amount that is required to be repaid in
accordance with the conditions to which an approval of victims support is
subject and that is not repaid may be recovered by the Commissioner as if it
were a debt due to the Commissioner.
Division 7Review of decisions concerning
victims support
49Internal review of victims
support decisions
(1)
An applicant for victims support may apply to the
Commissioner for an internal review of the decision made by a person to whom
the Commissioner has delegated the Commissioner’s functions with respect
to an application for victims support (in this Division called the decision
maker).
(2)
The application must be made within 28 days after
the day on which the applicant is given notice of the decision maker’s
decision.
(3)
An application for an internal review must be in
writing and state fully the grounds of the application.
(4)
An internal review is to be done by making a new
decision, as if the decision being reviewed (the original decision) had not been
made, with the new decision being made as if it were being made when the
application for support to which the review relates was originally
received.
(5)
Within 42 days after the application for the
internal review is lodged (or such other period as the Commissioner and the
applicant agree on), the Commissioner must notify the applicant in writing
of:
(a)
the outcome of the internal review,
and
(b)
the reasons for the decision in the internal
review, and
(c)
the right of the person to have a decision with
respect to a recognition payment reviewed by the Tribunal under section
51.
50No internal review under the
Administrative Decisions Tribunal Act
1997
(1)
The procedure for internal review of a decision
provided for by this Part applies to the exclusion of section 53 (Internal
reviews) of the Administrative Decisions Tribunal Act
1997 in the case of a decision with respect to a
recognition payment.
(2)
A reference in the Administrative Decisions Tribunal Act
1997 to internal review of a reviewable decision under
that Act is, in its application to a decision with respect to a recognition
payment under this Part, to be read as a reference to internal review of the
decision under this Part.
51Application to Tribunal for
review of decision concerning recognition payment
(1)
An applicant for a recognition payment who is
aggrieved by the decision of a decision maker in respect of the application
may apply to the Tribunal for review of a decision made by the Commissioner
following an internal review under section 49 of the decision maker’s
decision with respect to the recognition payment.
(2)
An applicant for a recognition payment who is
aggrieved by the decision of the Commissioner in respect of the application
may apply to the Tribunal for review of a decision made by the
Commissioner.
52Operation of other Administrative Decisions Tribunal Act
1997 provisions
(1)
The provisions of Division 2 (Effect of pending
applications on reviewable decisions) of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act
1997 do not apply to an application to the Tribunal for
review under this Division.
(2)
The provisions of sections 113 and 115 of the
Administrative Decisions Tribunal Act
1997 do not apply to any decisions with respect to
recognition payments under this Act.
53Payment of recognition payment
suspended pending application to Tribunal
Subject to any order of the Tribunal to the
contrary, an application to the Tribunal for review of a decision concerning a
recognition payment suspends the application of section 16 in relation to the
payment pending the determination of the review by the
Tribunal.
Division 8Victims support
payments
54Victims Support Fund to pay
victims support
(1)
A claim for payment of the whole or any part of
victims support for which approval is given by the Commissioner under section
43 is to be made to the Commissioner.
(2)
On receiving the application for payment, the
Commissioner must (subject to the conditions of the approval and any
deductions made in accordance with those conditions) pay the relevant amount
to the person to whom it is payable.
(3)
The amount is to be paid out of the Fund or, if
sufficient money is not available in that Fund, out of the Consolidated Fund
which is, to the extent necessary, appropriated
accordingly.
55Effect of approval on
subsequent civil proceedings
(1)
This section applies to civil proceedings
commenced or maintained in respect of an injury or loss sustained by a person
to whom the giving of victims support has been approved under this Part on the
basis of the same facts as those on which the civil proceedings are
based.
(2)
Subject to subsection (3), approval of the giving
of victims support does not affect a person’s right to commence or
maintain civil proceedings, and damages in civil proceedings must be assessed
without regard to the approval.
(3)
On the payment to a person of approved victims
support, the person’s right to commence or maintain civil proceedings
against any other person in respect of the same facts as those on which the
approval is based is, by operation of this section, subrogated to the State to
the extent of the amount of support so paid.
(4)
This section does not limit the operation of
section 74 or 102.
56Recovery from fraudulent
claimants
(1)
The Tribunal may, on application by the
Commissioner, make an order for restitution for such amount as has been paid
to a person as victims support if the person is convicted of:
(a)
an offence of obtaining approval for the giving
of victims support by means of fraud or false pretence or by means of a
wilfully false or wilfully misleading statement, or
(b)
an offence, in relation to the obtaining of such
approval, of a kind prescribed by the regulations.
(2)
An order for restitution may not be made if 2
years or more have elapsed since the date on which the person was convicted of
the relevant offence.
(3)
The provisions of Part 5 relating to the recovery
of money under an order for restitution and to the creation of charges on land
under that Part apply to an order for restitution under this
section.
Part 5Recovery of victims support
payments from offenders
Division 1Preliminary
57Object of
Part
The object of this Part is to enable financial
support paid and recognition payments made under the Scheme to be recovered
from persons found guilty of the crimes giving rise to the
payments.
58Definitions
In this Part:
defendant means the person on whom a
provisional order is served.
objection means notice by the
defendant under section 62 of objection to the confirmation of a provisional
order.
order for
restitution means a provisional order that is confirmed by
the Commissioner or the Tribunal under section 63, 64 or 67.
provisional order means a
provisional order for restitution that is made by the Commissioner under
section 59 or 60.
relevant
offence means the following:
(a)
an offence arising from substantially the same
facts as those constituting an act of violence in respect of which an approval
for the giving of victims support has been given,
(b)
any other offence if an offence referred to in
paragraph (a) was taken into account (under Division 3 of Part 3 of the
Crimes (Sentencing Procedure) Act 1999)
when sentence was passed on the offender for that other
offence,
(c)
an offence involving one or more acts of a series
of related acts (within the meaning of section 19 (4)) in respect of which
victims support is given under this Act.
review
proceedings means proceedings of the Tribunal concerning the
confirmation of a provisional order.
victim means a person to whom an
amount has been paid under an approval for the giving of financial support or
the making of a recognition payment under Part 4.
Division 2Restitution by
offenders
59Commissioner’s
discretion to make provisional order for restitution by
offender
(1)
If the Commissioner is of the opinion that,
before or after an approval for the giving of financial support or making of a
recognition payment is given, a person has been convicted of a relevant
offence, the Commissioner may make a provisional order for restitution against
the person.
(2)
A provisional order may not be made against a
person if:
(a)
2 years or more have elapsed since:
(i)
the end of the period in which a claim may be
made under an application for victims support under section 40 (6),
or
(ii)
the date on which the person was convicted of the
relevant offence,
whichever is the later, or
(b)
civil proceedings have been commenced or are
being maintained against the person, by or on behalf of the State, in respect
of an action for damages arising from substantially the same facts as those on
which the relevant approval was based.
60Commissioner’s
discretion to make provisional order for restitution by other
person
(1)
If the Commissioner is of the opinion that a
person against whom a provisional order has been made under section 59 has
disposed of property as part of a scheme for the purpose of avoiding a
liability (whether actual or potential) under this Division, the Commissioner
may make a provisional order for restitution against any person:
(a)
who was a party to the scheme,
and
(b)
who obtained property under the scheme without
giving sufficient consideration.
(2)
A provisional order may be made against a person
under this section whether or not the person has retained the property
concerned.
(3)
A provisional order may not be made under this
section if 2 years or more have elapsed since the provisional order on which
it is based was made.
(4)
A provisional order may not be made under this
section (and any such order that has been made ceases to be in force) if the
order on which it is based is not confirmed or any consequent restitution
order is set aside or ceases to be in force.
(5)
The total amount that may be recovered under an
order under this section and under the order under section 59 on which it is
based is not to exceed the amount payable under the order under section
59.
61Notification of
decision
(1)
The Commissioner must serve notice of a
provisional order personally or by post on the person against whom it was
made.
(2)
The notice must:
(a)
set out the terms of the order,
and
(b)
include a statement of the grounds on which the
order was made, and
(c)
set out the effect of sections 63 and 64,
and
(d)
set out an explanation of:
(i)
the right to object, within 28 days after the
notice is served, to the confirmation of the order and the procedure for
objecting, and
(ii)
the effect of objecting or failing to
object.
62Objection to provisional
order
(1)
A person served with a notice of a provisional
order may lodge a written objection to confirmation of the order with the
Commissioner.
(2)
The objection must be lodged within 28 days (or
such longer period, not exceeding 90 days, as the Commissioner may allow)
after the notice was served.
(3)
The grounds for the objection must be stated
fully and in detail in the objection.
(4)
On an objection, the defendant has the onus of
proving the defendant’s case.
63Confirmation by Commissioner
of provisional order if no objection
(1)
The Commissioner may confirm a provisional order
without conducting a hearing if the Commissioner is satisfied that the person
has not lodged an objection within 28 days after notice of the order was
served on the person.
(2)
Before confirming such a provisional order, the
Commissioner may vary the order by reducing the amount payable under
it.
(3)
On confirmation of the provisional order under
this section, the amount payable under the order may be recovered (subject to
section 71) by the Commissioner under section 72.
64Powers of Commissioner on
objection
(1)
After considering an objection, the Commissioner
may:
(a)
allow the objection in whole or in part or
disallow the objection, and
(b)
accordingly reverse, vary or confirm the decision
to which the objection was made.
(2)
On confirmation of the decision the amount
payable under the provisional order concerned may be recovered (subject to
section 71) by the Commissioner under section 72.
(3)
The Commissioner must discharge the provisional
order concerned if the Commissioner reverses the original
decision.
(4)
For the purpose of enabling a defendant to apply
to the Tribunal for a review, the Commissioner is taken to have failed to
determine an objection if 90 days have passed since the objection was lodged
with the Commissioner.
(5)
The Commissioner’s failure to determine an
objection within the period referred to in subsection (4) does not prevent the
Commissioner from continuing to deal with the objection after that period has
expired.
(6)
In calculating a period referred to in subsection
(4), the period between the date on which the Commissioner requests further
information or supporting evidence from the defendant in relation to the
objection and the date on which that further information or supporting
evidence is furnished is excluded.
65Notice of determination of
objection
(1)
The Commissioner must give a defendant who makes
an objection written notice of the determination of the
objection.
(2)
The Commissioner must, in the notice, give the
reasons for disallowing the objection or for allowing the objection in part
only.
(3)
The reasons for a determination of an objection
must set out the matters referred to in section 49 (3) of the Administrative Decisions Tribunal Act
1997 in respect of the
determination.
(4)
The notice must also inform the defendant of the
defendant’s right to make an application for review under section 66 in
the case of a determination to disallow the objection or to allow the
objection in part only.
66Reviews by Administrative
Decisions Tribunal
(1)
The defendant may apply to the Tribunal for a
review of the decision (the original
decision) to which an objection was made if:
(a)
the defendant is dissatisfied with the
Commissioner’s determination of the objection, or
(b)
90 days have passed as referred to in section 64
since the objection was lodged with the Commissioner and the Commissioner has
not determined the objection.
(2)
The applicant’s and respondent’s
cases on an application for review are not limited to the grounds of the
objection.
(3)
The applicant has the onus of proving the
applicant’s case in an application for review.
(4)
An application for review:
(a)
following a determination by the Commissioner of
an objection—must be made not later than 60 days after the date of issue
of the notice of the Commissioner’s determination of the objection,
or
(b)
following a failure of the Commissioner to
determine an objection within the relevant 90-day period—may be made at
any time after the end of that period (but must be made as required by
paragraph (a) following a subsequent determination of the objection by the
Commissioner).
(5)
The Tribunal may extend the time for making an
application for review.
(6)
The following provisions of the Administrative Decisions Tribunal Act
1997 do not apply to an application made under this
section:
(a)
Part 2 of Chapter 5,
(b)
section 55 (1) (b) and (d),
(c)
Division 2 of Part 3 of Chapter
5.
(7)
For the purposes of section 58 (1) (a) of the
Administrative Decisions Tribunal Act
1997:
(a)
the obligation of the Commissioner under that
paragraph to lodge a statement of reasons with the Tribunal in respect of an
application is limited to providing the Tribunal with a statement of reasons
only in respect of the matters arising from the grounds specified in the
application, and
(b)
if one of the grounds specified in the
application relates to a matter raised in an objection determined by the
Commissioner—the Commissioner may rely on reasons previously given to
the defendant by the Commissioner under this Act for the determination of the
objection in explanation of that part of the original
decision.
67Powers of Tribunal on
review
(1)
On a review, the Tribunal may:
(a)
confirm, vary or reverse the original decision
the subject of review, and
(b)
make any other orders it thinks
fit.
(2)
This section does not limit the generality of
Division 3 of Part 3 of Chapter 5 of the Administrative
Decisions Tribunal Act 1997.
(3)
The Tribunal may confirm a provisional order made
under section 59 if satisfied that the applicant for review has been convicted
of a relevant offence. If the Tribunal is not so satisfied, it must reverse
the original decision.
(4)
The Tribunal may confirm a provisional order made
under section 60 if satisfied that:
(a)
a person against whom a provisional order has
been made has disposed of property as part of a scheme for the purpose of
avoiding a liability (whether actual or potential) under this Division,
and
(b)
the applicant was a party to the scheme and
obtained property under the scheme without giving sufficient
consideration.
If the Tribunal is not so satisfied, it must
reverse the original decision.
68Arrangements for payment under
order for restitution
(1)
The Commissioner and a defendant may enter into
an arrangement with respect to payment under a provisional order or any such
order that is confirmed.
(2)
Such an arrangement may relate to the time for
payment or to a reduction in the total amount payable under the order, or
both.
(3)
For the purpose of enabling the Commissioner and
the defendant to come to such an arrangement, the Tribunal may adjourn review
proceedings for such period as it considers appropriate.
(4)
If the defendant does not comply with such an
arrangement, review proceedings may be taken by the Commissioner for the
purposes of confirming the provisional order for the total amount payable
under the order.
69Provisions relating to orders
for restitution confirmed by Tribunal
(1)
The Tribunal may reduce the amount to be paid
under a provisional order that it confirms having regard to:
(a)
the financial means of the defendant,
and
(b)
such other matters as are, in the opinion of the
Tribunal, relevant to the determination.
(2)
The maximum amount that may be ordered to be paid
under an order for restitution (whether made against one or more defendants)
is the amount that has been paid to the victim under an approval for the
giving of financial support or making of a recognition payment to which the
order relates.
(3)
If an order for restitution is made against 2 or
more defendants in respect of the same approval for the giving of financial
support or making of a recognition payment, each of the defendants is jointly
and severally liable under the order.
(4)
If the Tribunal decides under subsection (1) to
reduce the amount payable by a defendant under an order made against 2 or more
defendants, the Tribunal may confirm the order subject to the liability of the
defendant concerned being limited under the order to an amount specified in
the order.
70Costs in review
proceedings
The Tribunal does not have jurisdiction to order
payment of costs in relation to review proceedings.
Note—
Section 141 of the Administrative Decisions Tribunal Act
1997 provides for payment of allowances and expenses of
witnesses appearing or giving evidence before the
Tribunal.
71Orders for restitution to be
subject to review of relevant approvals of victims
support
(1)
An order for restitution does not have any
effect:
(a)
until the period within which an application may
be made to the Tribunal for review of the decision to approve the making of a
recognition payment from which it arises, or to which it relates, has expired,
or
(b)
if such an application is duly made within that
period, until the application is finally
determined.
(2)
If the approval of the making of a recognition
payment to which such an application relates is set aside or varied as a
result of the review, the order for restitution ceases to have
effect.
(3)
In the event that the decision is varied, a new
provisional order may be made in accordance with this Division as if the
original order had not been made.
72Enforcement of order for
restitution
(1)
An order for restitution made against a person
may be enforced by the Commissioner as if it were an order made in civil
proceedings against the person to recover a debt due to the
Commissioner.
(2)
The debt arising from the order is taken to be a
judgment debt.
(3)
Money payable under an order for restitution and
not paid may be written off in accordance with a relevant policy on the matter
determined by the Minister.
73Enforcement of orders for
restitution by attachment of prison earnings
(1)
This section applies to an order for restitution
in connection with a relevant offence for which the person liable under the
order is convicted and sentenced to imprisonment or children’s
detention.
(2)
An amount payable under an order for restitution
to which this section applies that is not paid by the due date may also be
enforced by deducting the amount due from the person’s prison
earnings.
(3)
If it is to be so enforced, the Commissioner is
to serve notice of the amount unpaid on the relevant custodial officer, who
may make the appropriate deduction from the person’s prison
earnings.
(4)
In this section:
children’s detention means
detention under an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act
1987.
prison
earnings means:
(a)
in the case of a person sentenced to
imprisonment—the person’s earnings at the correctional centre in
which the person is imprisoned, or
(b)
in the case of a person sentenced to
children’s detention—the funds held on behalf of the person at the
detention centre in which the person is detained.
relevant
custodial officer means:
(a)
in the case of a person sentenced to
imprisonment—the Commissioner of Corrective Services or the governor of
the correctional centre in which the person is imprisoned,
or
(b)
in the case of a person sentenced to
children’s detention—the Director-General of the Department of
Family and Community Services or the person in charge of the detention centre
in which the person is detained.
74Effect of order for
restitution on subsequent civil proceedings
(1)
This section applies to civil proceedings in
respect of an injury or loss sustained by a person to whom an approval for the
giving of victims support has been given under Part 4 (being an approval in
respect of which an order for restitution has been made) on the basis of the
same facts as those on which the civil proceedings are
based.
(2)
An order for restitution does not affect a
person’s right to commence or maintain civil proceedings, and damages in
the civil proceedings must be assessed without regard to the
order.
(3)
However, the right of the State, under section
55, to commence or maintain civil proceedings is extinguished by an order for
restitution.
(4)
Subsection (3) does not revive the right of any
other person to commence or maintain civil proceedings to the extent to which
that right was previously subrogated to the State under section
55.
(5)
This section does not limit the operation of
section 55 or 102.
75Access to information about
whereabouts of defendant
Police officers, Roads and Maritime Services and
other Government agencies are authorised to provide the Commissioner with
information about the address of a defendant for the purpose of serving a
provisional order on the defendant or taking any action against the defendant
to enforce an order for restitution.
76Charge on property subject to
restitution orders
(1)
The Commissioner may apply to the
Registrar-General for registration of a restitution order in relation to any
land owned by the defendant (including any land owned jointly with another
person).
(2)
An application must define the land to which it
relates.
(3)
The Registrar-General must, on application under
this section and lodgment of a copy of the restitution order, register the
order in relation to the land in such manner as the Registrar-General thinks
fit.
(4)
There is created by force of this section, on the
registration of the order, a charge on the land in relation to which the order
is registered to secure the payment of the amount payable under the
order.
(5)
The charge created by force of this section is
subject to every charge or encumbrance to which the property was subject
immediately before the charge was created and, in the case of land under the
provisions of the Real Property Act
1900, is subject to every mortgage, lease or other
interest recorded in the Register kept under that Act.
(6)
Such a charge ceases to have effect in relation
to the land:
(a)
on registration of cancellation of the charge
under section 77, or
(b)
on the sale or other disposition of the land with
the consent of the Commissioner, or
(c)
on the sale of the land to a purchaser in good
faith for value who, at the time of the sale, has no notice of the charge,
or
(d)
on full payment of the amount payable under the
restitution order,
whichever first occurs.
77Cancellation of
charges
(1)
The Commissioner may cancel a charge created
under section 76 at any time for good reason.
(2)
The cancellation of a charge on land does not
take effect until the Registrar-General registers the cancellation of the
charge.
Division 3Restraining orders and orders
relating to the disposition of property by offenders
78Objects
The objects of this Division are:
(a)
to enable restraining orders to be obtained to
prevent persons who may be, or are, subject to restitution orders from
disposing of property so as to avoid paying restitution,
and
(b)
to enable orders to be made setting aside certain
transactions contravening restraining orders or entered into for the purpose
of avoiding payment of restitution.
79Application of
Division
This Division applies where:
(a)
a person has been charged with an offence in
relation to which an act of violence occurred resulting in an injury to a
victim for which financial support may be paid or a recognition payment made,
or
(b)
a person has been convicted of an offence in
relation to which any such act of violence occurred, or
(c)
a person was a party to a scheme to avoid a
liability (whether actual or potential) under Division 2 and obtained property
under that scheme without giving sufficient
consideration.
80Interpretation
(1)
In this Division:
appropriate officer means the
Commissioner, the Director of Public Prosecutions, the Commissioner of Police
or any other person, or a person of a class, prescribed by the regulations for
the purposes of this definition.
restraining order—see section
81.
the
defendant means a person referred to in section
79.
(2)
In this Division, a reference to a person being
charged with an offence is a reference to a person:
(a)
in respect of whom a charge sheet has been
completed by a police officer where proceedings for an offence are to be
commenced against the person, or
(b)
against whom proceedings for an offence have been
commenced.
81Nature of restraining
order
A restraining order is an order of the
Supreme Court directing that any property of the defendant, or under the
effective control of the defendant, is not to be disposed of, or otherwise
dealt with, by the defendant or by any other person, except in such manner and
in such circumstances (if any) as are specified in the
order.
82Application for restraining
order
(1)
An appropriate officer may apply, ex parte, to
the Supreme Court for a restraining order in relation to property of the
defendant or property under the effective control of the
defendant.
(2)
On an application under this section:
(a)
the Supreme Court may, if it thinks fit, require
the person making the application to give notice of the application to a
person who the Court has reason to believe has an interest in the property or
part of the property, and
(b)
a person to whom the Court requires notice to be
given under paragraph (a) is entitled to appear and to adduce evidence at the
hearing of the application.
83Making of restraining
order
(1)
On an application under section 82 relating to a
defendant charged with, or convicted of, an offence, the Supreme Court may
make a restraining order in relation to the defendant’s property or
property under the effective control of the defendant, if it is satisfied (on
the information contained in or accompanying the application) that:
(a)
the defendant has been charged with an offence in
relation to which an act of violence occurred resulting in an injury to a
victim for which financial support may be paid, or a recognition payment may
be made, or has been convicted of an offence in relation to which any such act
of violence occurred, and
(b)
amounts of victims support are or are likely to
be payable, and
(c)
it is appropriate to make the order in the
circumstances of the case.
(2)
On an application under section 82 relating to a
defendant who was a party to a scheme to avoid a liability (whether actual or
potential) under Division 2, the Supreme Court may make a restraining order in
relation to the defendant’s property or property under the control of
the defendant, if it is satisfied (on the information contained in or
accompanying the application) that:
(a)
the defendant was a party to a scheme to avoid a
liability (whether actual or potential) under Division 2 and obtained property
under that scheme without giving sufficient consideration,
and
(b)
an order has been, or may be, made against the
defendant under section 60, and
(c)
it is appropriate to make the restraining order
in the circumstances of the case.
(3)
Without limiting this section, in considering
whether to make a restraining order, the Supreme Court is to consider the
effect of any proposed order on the defendant’s ability to pay his or
her reasonable living expenses or those of his or her dependants or on the
defendant’s ability to meet legal expenses.
(4)
The Supreme Court may not make a restraining
order in relation to property if the property is affected by a restraining
order in force under the Criminal Assets Recovery Act
1990 or the Confiscation of
Proceeds of Crime Act 1989.
(5)
A restraining order may be made in relation to
property under the Criminal Assets Recovery Act
1990 or the Confiscation of
Proceeds of Crime Act 1989 even though the property is
subject to a restraining order under this Act.
84Undertakings
The Supreme Court may refuse to make a
restraining order if the person making the application refuses or fails to
give to the Court such undertakings as the Court considers appropriate with
respect to the payment of damages or costs, or both, in relation to the making
or operation of the order.
85Ancillary
orders
(1)
If the Supreme Court makes a restraining order,
it may make any ancillary orders that it considers
appropriate.
(2)
Without limiting subsection (1), ancillary orders
may include any one or more of the following:
(a)
an order for the examination on oath of:
(i)
the defendant, or
(ii)
another person,
before the Supreme Court, or an officer of the Court
prescribed by rules of court, concerning the affairs of the defendant,
including the nature and location of any property of the
defendant,
(b)
an order varying the restraining order in respect
of the property to which it relates,
(c)
an order varying any conditions to which the
restraining order was subject.
(3)
An ancillary order may be made on application by
the following:
(a)
the applicant for the restraining
order,
(b)
the defendant,
(c)
with the leave of the Supreme Court, any other
person.
(4)
Ancillary orders may be made when or at any time
after the restraining order is made. An ancillary order referred to in
subsection (2) (a) may be made in advance of the restraining
order.
(5)
A person being examined under this section is not
excused from answering a question on the ground that:
(a)
the answer to the question might tend to
incriminate the person or make the person liable to a forfeiture or penalty,
or
(b)
the answer would disclose information that is the
subject of legal professional privilege.
(6)
A statement or disclosure made by the person in
answer to a question put in the course of an examination under this section,
and any information, document or thing obtained as a direct or indirect
consequence of the statement or disclosure, is not admissible against the
person in any civil or criminal proceedings, except proceedings:
(a)
in respect of the false or misleading nature of a
statement or disclosure made under this Act, or
(b)
on an application under this Act,
or
(c)
ancillary to an application under this Act,
or
(d)
for enforcement of a restitution
order.
86Registration of restraining
orders and lodging of caveats
(1)
If a restraining order applies to property of a
particular kind and the provisions of any law of the State provide for the
registration of title to, or charges over, property of that kind, the
authority responsible for administering the provisions is required, on
application by any person, to record the particulars of the order in the
register kept under those provisions.
(2)
If the particulars of a restraining order are so
recorded, a person who subsequently deals with the property is, for the
purposes of section 89, taken to have notice of the restraining
order.
(3)
If a restraining order applies to land under the
provisions of the Real Property Act
1900, a caveat may be lodged under that Act in relation to
the order.
87Court may revoke restraining
order
(1)
The Supreme Court may revoke a restraining order
on application by the person in relation to whose property it was
made.
(2)
The Supreme Court may refuse to revoke the order
if the person does not:
(a)
give security satisfactory to the Court for the
payment of any amount for which the person may become liable under Division 2
as a result of the person’s commission of an act of violence,
or
(b)
give undertakings satisfactory to the Court
concerning the person’s property.
(3)
The Supreme Court may revoke a restraining order
on application by an appropriate officer.
(4)
This section does not limit the discretion of the
Supreme Court to revoke or refuse to revoke a restraining
order.
88Time when restraining order
ceases to be in force
(1)
If, after a restraining order is made in reliance
on the charging of a person with an offence:
(a)
the charge is withdrawn and the person is not
charged with a related offence by the time of the withdrawal—the
restraining order ceases to be in force when the charge is withdrawn,
or
(b)
the person is acquitted of the charge and the
person is not charged with a related offence by the time of the
acquittal—the restraining order ceases to be in force when the acquittal
occurs.
(2)
If a restraining order is made in reliance on the
charging of a person with (or the conviction of a person of) an offence, the
restraining order ceases to be in force 2 years after it is
made.
(3)
If a restraining order is made against a person
referred to in section 79 (c), the restraining order ceases to be in force 2
years after it is made.
(4)
The Supreme Court may, on the application of an
appropriate officer, extend for a specified period the period for which a
restraining order is in force under this section.
89Avoidance of
liabilities
(1)
A person who knowingly contravenes a restraining
order by disposing of, or otherwise dealing with, property that is subject to
the order is guilty of an offence.
Maximum penalty: A fine equivalent to the value
of the property (as determined by the court) or imprisonment for 2 years, or
both.
(2)
A person who knowingly disposes of, or otherwise
deals with, property as part of a scheme for the purpose of avoiding a
liability under Division 2 (whether actual or potential) is guilty of an
offence.
Maximum penalty: A fine equivalent to the value
of the property (as determined by the court) or imprisonment for 2 years, or
both.
90Orders setting aside
dispositions of property
(1)Application for order setting
aside disposition of or dealing with property
If:
(a)
a restraining order is made or may be sought
against property, and
(b)
the property is disposed of, or otherwise dealt
with:
(i)
in contravention of the restraining order,
or
(ii)
before a restraining order is obtained as part of
a scheme for the purpose of avoiding a liability under Division 2 (whether
actual or potential), and
(c)
the disposition or dealing was either not for
sufficient consideration or not in favour of a person who acted in good
faith,
an appropriate officer may apply to the Supreme Court
for an order that the disposition of or dealing with the property be set
aside.
(2)Order setting aside
disposition or dealing
If an application is made under this section and
the Supreme Court is satisfied as to the matters set out in subsection (1),
the Court may make an order:
(a)
setting aside the disposition or dealing as from
the day on which the disposition or dealing took place or as from the day of
the order under this subsection, and
(b)
(if appropriate) declaring the respective rights
of any persons who acquired interests in the property on or after the day on
which the disposition or dealing took place and before the day of the
order.
(3)Protection of successors in
title
This section does not affect the rights of a
person who acquired property from a person in good faith and by giving
consideration that was at least as valuable as the market value of the
property at the time of its acquisition.
Part 6Compensation awarded by
court
Division 1Preliminary
91Object of
Part
The object of this Part is to give effect to an
alternative scheme under which a court may order the person it finds guilty of
a crime to pay compensation to any victim of the crime.
92Definitions
In this Part:
aggrieved
person:
(a)
in relation to an injury—has the meaning it
has in section 93, and
(b)
in relation to loss—has the meaning it has
in section 96.
direction
for compensation:
(a)
for an injury—means a direction for
compensation under section 94, and
(b)
for loss—means a direction for compensation
under section 97.
Division 2Compensation for
injury
93Definition
In this Division:
aggrieved
person, in relation to an offence:
(a)
other than an offence in respect of the death of
a person—means a person who has sustained injury through or by reason
of:
(i)
an offence for which the offender has been
convicted, or
(ii)
an offence taken into account (under Division 3
of Part 3 of the Crimes (Sentencing Procedure) Act
1999) when sentence was passed on the offender for that
offence, or
(b)
in respect of the death of a person—means a
member of the immediate family of the person.
94Directions for compensation
for injury
(1)
A court that convicts a person of an offence may
(on the conviction or at any time afterwards), by notice given to the
offender, direct that a sum not exceeding $50,000 be paid out of the property
of the offender to any:
(a)
aggrieved person, or
(b)
aggrieved persons in such proportions as may be
specified in the direction,
by way of compensation for any injury sustained through,
or by reason of, the offence or any other offence taken into account (under
Division 3 of Part 3 of the Crimes
(Sentencing Procedure) Act 1999) when sentence was passed
on the offender for that offence.
(2)
A direction for compensation may be given by a
court on its own initiative or on application made to it by or on behalf of an
aggrieved person.
95Restrictions on court’s
power to give directions for compensation for injury
(1)
A direction for compensation under this Division
must not be given in respect of the conviction of a person for an offence if
the aggregate of the sum specified in the direction and of all sums specified
in a direction for compensation previously given under this Division:
(a)
on the conviction of any other person for that
offence, or
(b)
on the conviction of that or any other person for
a related offence,
exceeds $50,000.
(2)
A direction for compensation under this Division
for which financial support is payable under Part 4 must not be given if an
approval for the giving of such financial support in respect of the injury has
been made under that Part to or for the benefit of the aggrieved
person.
(3)
For the purposes of this section, an offence is
related to another offence if:
(a)
both of the offences were committed against the
same person, and
(b)
in the opinion of the court, both of the offences
were committed at approximately the same time or were, for any other reason,
related to each other.
However, an offence is not related to any earlier
offence in respect of which a direction for compensation has been given if it
is committed after the direction was given.
(4)
In this section, a reference to a direction for
compensation previously given under this Division includes a reference to a
direction for compensation previously given under the following:
(a)
Part 6 of the Victims Compensation Act
1987,
(b)
Part 2 of the Victims Support
and Rehabilitation Act 1996,
(c)
section 437 or 554 (3) of the Crimes Act
1900.
Division 3Compensation for
loss
96Definitions
In this Division:
aggrieved
person, in relation to an offence, means a person who has
sustained loss through or by reason of:
(a)
an offence for which the offender has been
convicted, or
(b)
a further offence that a court has taken into
account under Division 3 of Part 3 of the Crimes
(Sentencing Procedure) Act 1999 in imposing a penalty for
an offence for which the offender has been
convicted.
court means the Supreme Court, the
Court of Criminal Appeal, the District Court or the Local
Court.
97Directions for compensation
for loss
(1)
A court that convicts a person of an offence may
(on the conviction or at any time afterwards), by notice given to the
offender, direct that a specified sum be paid out of the property of the
offender to any:
(a)
aggrieved person, or
(b)
aggrieved persons in such proportions as may be
specified in the direction,
by way of compensation for any loss sustained through,
or by reason of, the offence or, if applicable, any further offence that the
court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999
in imposing a penalty for an offence for which the offender has been
convicted.
(2)
A direction for compensation may be given by a
court on its own initiative or on an application made to it by or on behalf of
the aggrieved person.
98Restrictions on court’s
power to give directions for compensation for loss
A court may not give a direction for
compensation:
(a)
for economic loss for which financial support is
payable under this Act or compensation is payable under Division 2,
or
(b)
for an amount in excess of the maximum amount
that, in its civil jurisdiction, the court is empowered to award in
proceedings for the recovery of a debt.
Division 4General
99Factors to be taken into
consideration
In determining whether or not to give a direction
for compensation and in determining the sum to be paid under such a direction,
the court must have regard to the following:
(a)
any behaviour (including past criminal activity),
condition, attitude or disposition of the aggrieved person which directly or
indirectly contributed to the injury or loss sustained by the aggrieved
person,
(b)
any amount which has been paid to the aggrieved
person or which the aggrieved person is entitled to be paid by way of damages
awarded in civil proceedings in respect of substantially the same facts as
those on which the offender was convicted,
(c)
such other matters as it considers
relevant.
100Payment of sum
directed
Subject to section 9 of the Criminal Appeal Act 1912 and to the
provisions of the Criminal Procedure Act
1986, any sum directed to be paid by an offender to an
aggrieved person, under a direction for compensation, must be paid
immediately, or within such period (if any) as is specified in the direction,
to the registrar of the court for payment to the aggrieved
person.
101Enforcement of directions for
compensation
(1)
If a court gives a direction for compensation and
the whole or any part of the amount specified in the direction is not paid in
accordance with the direction, the registrar of the court must, on the
application of the aggrieved person, issue to the aggrieved person a
certificate that:
(a)
identifies the direction, and
(b)
specifies the offender, and
(c)
specifies the amount required by the direction to
be paid which has not, as at the date of the certificate, been paid to the
registrar.
(2)
The registrar must not subsequently accept any
payment from the offender in respect of the direction for compensation
identified in a certificate issued under this section.
(3)
An aggrieved person may file such a certificate
in the registry of a court having jurisdiction to order payment of the amount
specified in the certificate, and the registrar of that court must immediately
enter judgment in favour of the aggrieved person against the offender
specified in the certificate for:
(a)
the amount specified in the certificate as having
not been paid, and
(b)
any fees payable to the registrar in respect of
the filing of the certificate.
(4)
A direction for compensation may only be enforced
in accordance with this section and any amount not paid is not payable from
the Fund or any other public money.
102Effect of directions for
compensation on subsequent civil proceedings
(1)
This section applies to civil proceedings
commenced or maintained in respect of an injury or loss sustained by a person
in respect of whom a direction for compensation has been given on the basis of
the same facts as those on which the civil proceedings are
based.
(2)
A direction for compensation does not affect a
person’s right to commence or maintain civil proceedings, and damages in
the civil proceedings must be assessed without regard to the
direction.
(3)
The judgment of the court in which the civil
proceedings are determined:
(a)
must not be entered in respect of so much of the
amount of damages assessed by the court as is equivalent to the sum of the
amounts that have been paid under the direction for compensation,
and
(b)
must not be enforced, except with the leave of
the court, in respect of so much of the amount of damages assessed by the
court as is equivalent to the sum of the amounts that have not been paid under
the direction for compensation.
(4)
This section does not limit the operation of
section 55 or 74.
103Directions for compensation
not appealable on certain grounds
An appeal does not lie against a direction for
compensation merely because, in civil proceedings arising from substantially
the same facts as those on which the offender was convicted, the aggrieved
person is awarded a lesser amount in damages than the amount of compensation
required to be paid by the direction.
Part 7Victims support
levies
104Object of
Part
The object of this Part is to impose a levy on
persons found guilty of crimes for the purpose of funding the
Scheme.
105Application of
Part
(1)
This Part applies to all offences (other than any
offences of a class referred to in subsection (2) or prescribed by the
regulations) that are dealt with by:
(a)
the Supreme Court, or
(b)
the District Court, or
(c)
the Drug Court, or
(d)
the Local Court, or
(e)
the Land and Environment Court,
or
(f)
the Industrial Relations Commission in Court
Session, or
(g)
the Children’s Court,
or
(h)
any other court prescribed by the
regulations.
(2)
This Part does not apply to offences relating to
the following:
(a)
engaging in offensive
conduct,
(b)
the use of offensive
language,
(c)
travelling on public transport without paying the
fare or without a ticket,
(d)
the parking or standing of a
vehicle.
(3)
This Part does not apply to an offence merely
because it is taken into account (as referred to in Division 3 of Part 3 of
the Crimes (Sentencing Procedure) Act 1999)
on the sentence of a person in respect of some other offence, whether or not
that other offence is an offence to which this Part
applies.
(4)
In this Part, conviction does not include an order
made under section 10 (1) (a) of the Crimes
(Sentencing Procedure) Act 1999 in relation to an offence
that is not punishable by imprisonment (whether or not it is also punishable
by some other penalty).
106Imposition of victims support
levy
(1)
A person who is convicted of an offence to which
this Part applies is, by virtue of the conviction, liable to pay to the State
a levy of:
(a)
$156, if the person is convicted on indictment or
pursuant to a committal under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986,
or
(b)
$69, if the person is convicted otherwise than as
referred to in paragraph (a).
(2)
Such a levy is in addition to, and does not form
part of, any pecuniary penalty or order for payment of compensation imposed in
respect of the same offence.
(3)
A person who is under the age of 18 years is not
liable to pay such a levy if the court by which the person is convicted
directs, whether when it convicts the person or at any time afterwards, that
the person is exempt from liability to pay the levy.
(4)
Any money paid to the State in respect of an
offence to which this Part applies is to be applied towards the discharge of
such a levy before it is applied to the discharge of any pecuniary penalty or
order for payment of compensation imposed in respect of the same
offence.
107CPI adjustments of victims
support levy
(1)
Starting at the end of the 2012–2013
financial year, each of the amounts of the levy payable under section 106 (1)
is to be adjusted as provided by this section at the end of each financial
year (the current
financial year) to provide a new amount for the next financial
year. The new amount applies for the next financial year and replaces the
amount that applied for the current financial year.
(2)
The new amount for a financial year is to be
calculated in accordance with the following formula:
where:
A is the new amount being
calculated.
L is the amount of the levy for the
current financial year.
B is the Sydney CPI number for March
in the current financial year.
C is the Sydney CPI number for March
in the financial year before the current financial
year.
(3)
Before the end of each financial year (starting
with the 2012–2013 financial year), the Minister is to publish a notice
on the NSW legislation website of the amounts that are to apply for the
purposes of section 106 for the next financial year. Failure to publish the
notice or late publication of the notice does not affect the validity of an
adjustment under this section.
(4)
If the amount calculated pursuant to an
adjustment under this section as the new amount for a financial year is not a
whole number of dollars, the amount is to be rounded up to the nearest whole
dollar.
(5)
If an adjustment under this section would result
in the new amount for the next financial year being less than the amount for
the current financial year, the new amount for the next financial year is to
be the same as the amount for the current financial
year.
(6)
The new amount for a financial year is to be
adjusted in accordance with the regulations if the Australian
Statistician:
(a)
stops issuing Sydney CPI numbers,
or
(b)
fails to issue a relevant Sydney CPI number
before the start of the financial year for which the new amount is required to
be calculated.
(7)
It is to be presumed, in the absence of evidence
to the contrary, that any amounts specified in a notice published under this
section for a particular financial year are correct.
(8)
In this section:
financial
year means a year starting on 1 July.
Sydney
CPI number means the Consumer Price Index (All Groups Index)
for Sydney issued by the Australian Statistician.
108Effect of appeal
proceedings
(1)
The commencement of any proceedings by way of
appeal against, or review of, a conviction or sentence in respect of which a
victims support levy has been imposed on a person under section 106 stays the
liability of the person to pay the levy.
(2)
The setting aside of any such conviction annuls
that liability.
(3)
The dismissal of any such proceedings removes the
stay of liability.
Part 8Victims Advisory
Board
109Establishment of Victims
Advisory Board
There is established by this Act a Victims
Advisory Board.
110Membership and procedure of
Victims Advisory Board
The Victims Advisory Board is to consist of the
Commissioner (who is to be the Chairperson of the Board) and not more than 11
other members appointed by the Minister, including:
(a)
6 members representing the general community,
and
(b)
a member representing the NSW Police Force,
and
(c)
a member representing the Department of Attorney
General and Justice, and
(d)
members representing other relevant Government
agencies.
Note—
Schedule 1 contains provisions with respect to
the membership and procedure of the Board.
111Functions of Victims Advisory
Board
(1)
The Victims Advisory Board has the following
functions:
(a)
to advise the Minister on policies and
administrative arrangements relating to support services and assisting victims
of crime,
(b)
to consult victims of crime, community victims
support groups and Government agencies on issues and policies concerning
victims of crime,
(c)
to promote legislative, administrative or other
reforms to meet the needs of victims of crime.
(2)
Any advice given to the Minister may be given
either at the request of the Minister or without any such
request.
Part 9Miscellaneous
112Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
113Inadmissibility and use of
certain evidence in subsequent legal proceedings
(1)
Despite any rule of law to the contrary:
(a)
an application for victims support,
and
(b)
any documents supporting the application (whether
or not furnished when the application is lodged) or any documents furnished
to, or prepared by or on behalf of, the Commissioner at any time in connection
with the application,
are not admissible as evidence in any legal proceedings
(whether criminal or civil) other than criminal proceedings in which the
applicant is the accused arising from substantially the same facts as those on
which the application is based.
(2)
Subsection (1) does not prevent the admission of
evidence:
(a)
against the applicant in criminal proceedings in
which the applicant is the accused, or
(b)
in proceedings before the Tribunal to determine
any issue arising under or in relation to the determination of an application
for victims support.
(3)
A person cannot be required (whether by subpoena
or any other procedure) to produce any application or document that is not
admissible in evidence in legal proceedings under subsection (1) in, or in
connection with, any such legal proceeding.
114Personal liability of
Commissioner and others
A matter or thing done (or omitted to be done) by
the Commissioner, any member of staff employed for the purposes of this Act or
a person acting under the direction of the Commissioner does not, if the
matter or thing was done (or omitted to be done) in good faith for the purpose
of exercising a function under this Act, subject the Commissioner, the member
of staff or the person so acting personally to any action, liability, claim or
demand.
115Proceedings for
offences
(1)
Proceedings for an offence under this Act (other
than section 89) or the regulations may be dealt with summarily before the
Local Court.
(2)
Proceedings for an offence under section 89 may
be dealt with summarily before:
(a)
the Local Court, or
(b)
the Supreme Court in its summary
jurisdiction.
(3)
The maximum fine the Local Court may impose for
an offence in proceedings before it under section 89 is
$10,000.
116Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on any person may be served by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the
facsimile number of the person or by email to the email address of the person,
or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the
facsimile number of the body corporate or by email to the email address of the
body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person in any other manner.
117Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, regulations may be made for or
with respect to the establishment of panels of appropriately qualified persons
for the purpose of recommending counsellors for approval by the Commissioner
under Part 4.
(3)
A regulation may create an offence punishable by
a penalty not exceeding 10 penalty units.
118Repeals
(1)
The Victims Support
and Rehabilitation Act 1996, Victims Support and Rehabilitation Regulation
2012 and Victims Support
and Rehabilitation Rule 1997 are
repealed.
(2)
The Victims Rights
Act 1996 is repealed.
119Reviews of
Act
(1)
The Minister is to undertake reviews of this Act
to determine whether the policy objectives of the Act remain valid and whether
the terms of the Act remain appropriate for securing those
objectives.
(2)
The reviews are to be undertaken:
(a)
for the first review—as soon as possible
after the period of 3 years from the date of assent to this Act,
and
(b)
for subsequent reviews—at intervals of not
less than 3 years and not more than 5 years.
(3)
A report on the outcome of each review is to be
tabled in each House of Parliament within 12 months after the end of the
review.
Schedule 1Provisions relating to Victims
Advisory Board
(Section 110)
1Definitions
In this Schedule:
Board means the Victims Advisory
Board.
member means a member of the Board,
other than the Chairperson of the Board.
2Terms of office of
members
Subject to this Schedule, a member holds office
for such period (not exceeding 3 years) as is specified in the member’s
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
3Allowances of
members
A member (other than a member who is employed by
a Government agency) is entitled to be paid such allowances as the Minister
may from time to time determine in respect of the
member.
4Deputies
(1)
The Minister may, from time to time, appoint a
person to be the deputy of a member, and the Minister may revoke any such
appointment.
(2)
In the absence of a member, the member’s
deputy:
(a)
may, if available, act in the place of the
member, and
(b)
while so acting, has all the functions of the
member and is taken to be a member.
(3)
A person (other than a person employed by a
Government agency) while acting in the place of a member is entitled to be
paid such allowances as the Minister may from time to time determine in
respect of the person.
5Vacancy in office of
member
(1)
The office of a member becomes vacant if the
member:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Minister, or
(d)
is removed from office by the Minister,
or
(e)
is absent from 4 consecutive meetings of the
Board of which reasonable notice has been given to the member personally or by
post, except on leave granted by the Board or unless the member is excused by
the Board for having been absent from those meetings, or
(f)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(g)
becomes a mentally incapacitated person,
or
(h)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2)
The Minister may remove a member from office at
any time.
6Filling of vacancy in office
of member
If the office of any member becomes vacant, a
person is, subject to this Act, to be appointed to fill the
vacancy.
7Effect of certain other
Acts
(1)
Chapter 1A of the Public Sector
Employment and Management Act 2002 does not apply to or in
respect of the appointment of a member.
(2)
If by or under any Act provision is made:
(a)
requiring a person who is the holder of a
specified office to devote the whole of his or her time to the duties of that
office, or
(b)
prohibiting the person from engaging in
employment outside the duties of that office,
the provision does not operate to disqualify the person
from holding that office and also the office of a member or from accepting and
retaining any allowance payable to the person under this Act as a
member.
8General
procedure
The procedure for the calling of meetings of the
Board and for the conduct of those meetings is, subject to this Schedule and
the regulations, to be determined by the Board.
9Quorum
The quorum for a meeting of the Board is a
majority of the members (including the Chairperson) for the time
being.
10Presiding
member
(1)
The Chairperson (or, in the absence of the
Chairperson, a member elected to chair the meeting by the members present) is
to preside at a meeting of the Board.
(2)
The person presiding has a deliberative vote and,
in the event of an equality of votes, has a second or casting
vote.
11Voting
A decision supported by a majority of the votes
cast at a meeting of the Board at which a quorum is present is the decision of
the Board.
12First
meeting
The Minister may call the first meeting of the
Board in such manner as the Minister thinks fit.
Schedule 2Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Regulations under this clause may have effect
despite any provision of Part 2.
Part 2Provisions consequent on
enactment of this Act
2Interpretation
(1)
In this Part:
introduction day means the day the
Bill for this Act was first introduced into Parliament.
statutory
compensation means statutory compensation within the meaning
of the repealed Act.
the
repealed Act means the Victims Support
and Rehabilitation Act 1996 as in force immediately before
its repeal by this Act.
(2)
For the purposes of this Part, proceedings are
not finally determined if:
(a)
any period for bringing an appeal as of right in
respect of the proceedings has not expired (ignoring any period that may be
available by way of extension of time to appeal), or
(b)
any appeal in respect of the proceedings is
pending (whether or not it is an appeal brought as of
right).
3Victims Rights and Support Regulation
2013
(1)
Schedule 4 sets out the terms of the Victims Rights and Support Regulation
2013.
(2)
On and from the commencement of this
clause:
(a)
Schedule 4 is taken to be, and to have effect as,
a regulation under this Act, and
(b)
the regulation set out in Schedule 4 is taken,
for the purposes of section 10 of the Subordinate
Legislation Act 1989, to have been published on the
commencement of this clause, and
(c)
sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to
the regulation set out in Schedule 4 (but apply to any amendment or repeal of
the regulation).
(3)
Schedule 4 is repealed on the day following the
day on which this clause commences.
Note—
The continued effect of the regulation set out in
Schedule 4 is unaffected by the repeal of Schedule 4. See section 30 of the
Interpretation Act
1987.
4Statutory compensation scheme
closure
(1)
Statutory compensation is not payable after the
introduction day unless an application for the statutory compensation was
finally determined before that day.
(2)
Statutory compensation that would have been
payable (less any deductions under section 19A of the repealed Act) from the
Victims Compensation Fund pursuant to an application that was finally
determined before the introduction day is payable (less such deductions) from
the Victims Support Fund under this Act.
5Applications for compensation
under statutory compensation scheme
(1)
An application for statutory compensation that
was lodged, but not finally determined, under the repealed Act before the
introduction day is to be dealt with under this Act (subject to this clause)
as if it were an application for victims support.
(2)
The applicant concerned is eligible for victims
support under the Scheme comprising approved counselling services or a
recognition payment, or both.
(3)
The applicant concerned is not eligible for
victims support under the Scheme comprising financial assistance for immediate
needs or financial assistance for economic loss. However, if the application
would, if it had been made for victims support referred to in section 26 (1)
(b) or (c) of this Act, have been duly lodged in accordance with this Act
within the prescribed period, the applicant is eligible for a special grant of
$5,000 payable from the Victims Support Fund.
(4)
In subclause (3):
prescribed period means:
(a)
the period of 2 years after the act of violence
in respect of which the application is made was committed (the relevant
act of violence), or
(b)
if the victim concerned was a child when the
relevant act of violence was committed—within 2 years after the child
reaches 18 years of age.
(5)
Any application determined under subclause (1) is
taken to have been determined as an application for victims support under this
Act.
(6)
The amount determined to be payable to the
applicant under this clause is to be reduced by the amount of any interim
award of statutory compensation made to the applicant under section 33 of the
repealed Act.
(7)
The applicant is not required to refund any part
of an interim award of statutory compensation made to the applicant under
section 33 of the repealed Act that is more than the amount determined to be
payable under this clause.
6No victims support payable
under both repealed Act and this Act
Victims support is not payable under this Act to
a primary victim, secondary victim or family victim of an act of violence if
the victim has already been awarded compensation or assistance under the
repealed Act.
7Approved counselling
services
Section 32 of this Act extends to any application
for payment for approved counselling services that was made to the Director
under the repealed Act before the commencement of that section, but does not
affect any decision made under the repealed Act before that
commencement.
8Application of approved
counselling scheme to previous acts of violence
Despite clause 7, Division 4 of Part 4 of this
Act extends to a victim of an act of violence in respect of which an
application for compensation has been made and dealt with under the repealed
Act.
9Continuation of
Fund
The Victims Compensation Fund established by the
repealed Act becomes, on the repeal of that Act, the Victims Support Fund
established by this Act.
10Victims Advisory
Board
(1)
The Victims Advisory Board established by the
Victims Rights Act 1996 (the old Board) as in force immediately
before its repeal by this Act is taken to be the Victims Advisory Board
established by this Act.
(2)
A person (other than the Chairperson) who,
immediately before the commencement of this clause, held office as a member of
the old Board is taken (subject to this Act) to be a member of the Victims
Advisory Board established by this Act.
(3)
The person who, immediately before the
commencement of this clause, was the Chairperson of the old Board ceases to
hold that office on that commencement and is not entitled to any remuneration
or compensation because of the loss of that office.
11Previous acts of
violence
Subject to this Act, this Act extends to an act
of violence that occurred before the introduction day (other than an act of
violence in respect of which an application for compensation has been made and
dealt with under the repealed Act).
12Former members of Victims
Compensation Tribunal
(1)
The Victims Compensation Tribunal (as constituted
under the repealed Act) is abolished on the commencement of this
clause.
(2)
Each person who immediately before the
commencement of this clause held office as a member of the Victims
Compensation Tribunal:
(a)
ceases to hold office as such,
and
(b)
is taken to have been appointed, for the
remainder of the term of office for which the person was appointed as a member
of the Victims Compensation Tribunal, as a judicial member of the
Administrative Decisions Tribunal assigned to the Victims Support Division of
that Tribunal.
(3)
A person who was appointed on a part-time basis
as a member of the Victims Compensation Tribunal is taken, on the commencement
of this clause, to have been appointed under subclause (2) (b) on a part-time
basis.
(4)
The person who, immediately before the abolition
of the Victims Compensation Tribunal, was the Chairperson of that Tribunal is
taken, on the commencement of this clause, to be the Deputy President of the
Victims Support Division of the Administrative Decisions
Tribunal.
(5)
A person does not cease to be a Magistrate merely
because of the abolition of the Victims Compensation
Tribunal.
(6)
This clause does not prevent a person referred to
in subclause (2) from being appointed, with the consent of the person, to a
different or additional office of the Administrative Decisions Tribunal or
from vacating office in accordance with the provisions of that
Act.
13Pending proceedings before the
Victims Compensation Tribunal
(1)
If proceedings to determine an application for
statutory compensation or to hear an objection to the making of a provisional
order for restitution under Division 8 of Part 2 of the repealed Act were
initiated or commenced before the Victims Compensation Tribunal but not
finally determined before the abolition of that Tribunal, the proceedings are
taken on that abolition to have been duly initiated or commenced before the
Administrative Decisions Tribunal.
(2)
The proceedings are to be heard, subject to
clause 12 and in accordance with any practice notes or directions of the
President of the Administrative Decisions Tribunal, by the person or persons
determining the matter before the abolition.
14Pending appeals and objections
to Victims Compensation Tribunal
(1)
This clause applies to proceedings before the
Victims Compensation Tribunal on an appeal under section 36 of the repealed
Act or hearing on an objection under Division 8 of Part 2 of that Act that
have not been finally determined on the commencement of this
clause.
(2)
The person or persons determining the matter the
subject of the appeal or objection:
(a)
are (subject to any practice notes or directions
of the President of the Administrative Decisions Tribunal) to continue on and
from the commencement of this clause to determine the matter, sitting as the
Administrative Decisions Tribunal, and
(b)
have and may exercise, while sitting as the
Administrative Decisions Tribunal under this clause, all the functions that
the Victims Compensation Tribunal had immediately before that
commencement.
15Pending District Court
proceedings
(1)
This clause applies to proceedings before the
District Court on an appeal under section 39 of the repealed Act that have not
been finally determined by that Court on the commencement of this
clause.
(2)
Proceedings to which this clause applies are to
be determined as if this Act had not been enacted.
16Recovery proceedings against
offender for amount payable under statutory award of
compensation
(1)
Part 5 of this Act applies to statutory awards of
compensation made under Part 2 of the repealed Act that were not the subject
of a provisional order for restitution under Division 8 of Part 2 of the
repealed Act before its repeal in the same way as it applies to awards under
Part 5 of this Act.
(2)
A provisional order for restitution made in
respect of a statutory award of compensation under Division 8 of Part 2 of the
repealed Act before its repeal is (unless notice of objection to the order has
been filed and proceedings on the notice have not been finally dealt with)
taken on that repeal to have been made by the Commissioner under Part 5 of
this Act and is to be dealt with accordingly.
(3)
A provisional order for restitution made in
respect of a statutory award of compensation under Division 8 of Part 2 of the
repealed Act before its repeal in relation to which a notice of objection has
been filed but in respect of which no hearing under section 49 of the repealed
Act has commenced is taken on that repeal to have been a provisional order in
respect of which an objection has been lodged under section 62 of this Act and
is to be dealt with accordingly.
(4)
If a hearing on a notice of objection has
commenced but has not been finally dealt with under section 49 of the repealed
Act, the matter is (subject to clause 14) to be heard as if Division 8 of Part
2 of the repealed Act were in force.
(5)
However, if a provisional order is confirmed in
proceedings referred to in subclause (4), the provisions of Division 2 of Part
5 of this Act apply to any proceedings for recovery of an amount payable under
the relevant order for restitution.
17Compensation awarded by a
court
(1)
Part 6 of this Act applies to persons convicted
or found guilty of offences after the commencement of that Part even though
the proceedings were commenced before that commencement.
(2)
A direction for the payment of compensation given
under Part 4 of the repealed Act may be recovered as if it had been given
under Part 6 of this Act.
18Support
levies
(1)
Part 7 of this Act applies to persons convicted
or found guilty of offences after the commencement of that Part even though
the proceedings were commenced before that commencement.
(2)
A compensation levy imposed by the operation of
Part 5 of the repealed Act may be recovered as if it had been imposed as a
victims support levy by Part 7 of this Act.
19Legal rights not
affected
(1)
Nothing in Part 2 of this Act gives rise to, or
can be taken into account in, any civil cause of action.
(2)
Without limiting subclause (1), nothing in that
Part:
(a)
operates to create in any person any legal rights
not in existence before the enactment of Part 2 of the Victims Rights Act 1996,
or
(b)
affects the validity, or provides grounds for
review, of any judicial or administrative act or
omission.
(3)
However, this clause does not prevent a
contravention of Part 2 of this Act from being the subject of disciplinary
proceedings against an official or a complaint to the Commissioner under
section 10.
20Costs and
expenses
Part 4 of the Victims Support and Rehabilitation Rule
1997 as in force immediately before the commencement of
this clause continues to apply for the purposes of determining costs and
expenses payable with respect to proceedings for compensation under the
repealed Act or for victims support under this Act until regulations or rules,
as the case requires, are made under this Act or the Administrative Decisions Tribunal Act
1997 for that matter.
21General
savings
(1)
If anything done, initiated or commenced under an
Act repealed by this Act before the commencement of this clause and still
having effect or not completed immediately before that commencement could have
been done, initiated or completed under this Act if it had been in force when
the thing was done, initiated or commenced:
(a)
the thing done continues to have effect,
or
(b)
the thing initiated or commenced may be completed
as if it had been done, initiated or commenced under this
Act.
(2)
This clause is subject to any express provision
of this Act on the matter.
Schedule 3Amendment of Acts and
statutory instruments
3.1Administrative Decisions Tribunal Act 1997 No
76
[1]Schedule 1 Divisions of
Tribunal
Insert in alphabetical order:
Victims Support
Division
[2]Schedule 2 Composition and
functions of Divisions
Insert after Part 3C:
Part 3DVictims Support
Division
Division 1Composition of
Division
1Division
members
(1)
Subject to subclauses (2) and (3), the Victims
Support Division of the Tribunal is to be composed of the following
members:
(a)
a Divisional Head,
(b)
such other members as may be assigned to the
Division by or under this Act.
(2)
A member is not to be appointed as Divisional
Head unless the Minister has consulted with the relevant Minister about the
appointment.
(3)
The President is not to assign a member to the
Division unless:
(a)
the Minister has consulted with the relevant
Minister about the assignment, and
(b)
the Minister has advised the President of the
result of the consultation.
(4)
In this clause:
relevant
Minister means the Minister administering the Victims Rights and Support Act
2013.
Division 2Functions of
Division
2Functions allocated to
Division
The functions of the Tribunal in relation to the
following enactments are allocated to the Victims Support Division of the
Tribunal:
Victims Rights
and Support Act 2013
[3]Schedule 5 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Victims Rights
and Support Act 2013
3.2Anti-Discrimination Act 1977 No
48
[1]Section 111A Compensation to
offenders in custody—payment to Victims Support
Fund
Omit “Victims Compensation Fund established
under the Victims Support and Rehabilitation Act
1996” from section 111A (2).
Insert instead “Victims Support Fund
established under the Victims Rights and Support Act
2013”.
[2]Section 111A
(3)
Omit “Compensation”. Insert instead
“Support”.
3.3Civil
Liability Act 2002 No 22
[1]Section 3B Civil liability
excluded from Act
Omit “, the Victims Support
and Rehabilitation Act 1996” from section 3B (1)
(g).
[2]Section 3B (1)
(h)
Insert after section 3B (1) (g):
(h)
civil liability for financial assistance for
economic loss under the Victims Rights and Support Act
2013—the whole Act.
[3]Section 26J Authority for
deduction from damages
Omit “Division 8 of Part 2 of the Victims Support and Rehabilitation Act
1996” wherever occurring in section 26J (2) and
(3).
Insert instead “Division 2 of Part 5 of the
Victims Rights and Support Act
2013”.
[4]Section 26J
(3C)
Omit “Victims Support
and Rehabilitation Act 1996”.
Insert instead “Victims Rights and Support Act
2013”.
3.4Crimes
(Administration of Sentences) Act 1999 No
93
[1]Section 138 Release of
offender on parole
Omit “clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act
1996” from section 138 (1B).
Insert instead “the definition of sexual
assault and domestic violence in section 19 of the Victims Rights and Support Act
2013”.
[2]Section 141 Decision following
review
Omit “clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act
1996” from section 141 (3B).
Insert instead “the definition of sexual
assault and domestic violence in section 19 of the Victims Rights and Support Act
2013”.
[3]Section 151 Release of serious
offender on parole
Omit “clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act
1996” from section 151 (1B).
Insert instead “the definition of sexual
assault and domestic violence in section 19 of the Victims Rights and Support Act
2013”.
3.5Crimes
(Appeal and Review) Act 2001 No 120
Section 3
Definitions
Omit paragraph (a) (iv) of the definition of
sentence in section 3
(1).
Insert instead:
(iv)
any direction for compensation under section 94
(Directions for compensation for injury) or 97 (Directions for compensation
for loss) of the Victims Rights and Support Act
2013, and
3.6Crimes (Sentencing Procedure) Regulation
2010
Clause 8 Persons who may
prepare victim impact statement
Omit “section 21A of the Victims Support and Rehabilitation Act
1996” from clause 8 (3) (a).
Insert instead “section 31 of the Victims Rights and Support Act
2013”.
3.7Criminal Appeal Act 1912 No
16
Section 2
Definitions
Omit paragraph (f) of the definition of Sentence in section 2
(1).
Insert instead:
(f)
any direction for compensation made by the court
of trial in respect of a person under section 94 (Directions for compensation
for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013,
or
3.8Criminal Assets Recovery Act 1990 No
23
Section 32 Establishment and
use of Proceeds Account
Omit “Victims Compensation Fund established
under the Victims Support and Rehabilitation Act
1996” from section 32 (3) (c).
Insert instead “Victims Support Fund
established under the Victims Rights and Support Act
2013”.
3.9Fines
Act 1996 No 99
[1]Section 3
Definitions
Omit the definition of compensation levy from section 3
(1).
Insert in alphabetical order:
victims
support levy means a victims support levy payable under Part
7 of the Victims Rights and Support Act
2013.
[2]Section 4 Meaning of
“fine”
Omit “compensation levy” wherever
occurring in section 4 (1) (d) and (2A).
Insert instead “victims support
levy”.
[3]Section 18 Special provisions
relating to certain victims support levies
Omit “compensation levy” wherever
occurring.
Insert instead “victims support
levy”.
[4]Schedule 3 Savings,
transitional and other provisions
Insert after Part 9:
Part 10Provisions consequent on
enactment of Victims Rights and Support Act
2013
27Enforcement of compensation
levy
A compensation levy to which section 18 applied
immediately before the amendment of that section by the Victims Rights and Support Act 2013 may
continue to be enforced as if that section had not been
amended.
3.10Government Information (Public Access) Act 2009
No 52
Schedule 2 Excluded
information of particular agencies
Insert at the end of item 4:
The Commissioner of Victims
Rights—functions relating to dealing with confidential information
concerning victims contained in applications for victims support under the
Victims Rights and Support Act
2013.
3.11Legal
Profession Act 2004 No 112
Section 337 Interpretation and
application
Omit section 337 (2) (a).
3.12Mental
Health (Forensic Provisions) Act 1990 No
10
Section 41
Definitions
Omit the definitions of victim from section 41
(1).
Insert in alphabetical order:
victim means a primary victim within
the meaning of the Victims Rights and Support Act
2013 and includes a member of the immediate family of a
victim within the meaning of section 22 of that Act.
victim of a patient means a victim
who is a victim of an act of violence (within the meaning of the Victims Rights
and Support 2013) committed by a
patient.
Schedule 4Victims Rights and Support Regulation
2013
Part 1Preliminary
1Name of
Regulation
This Regulation is the Victims Rights and Support Regulation
2013.
2Commencement
This Regulation commences on the commencement of
the Act.
3Interpretation
(1)
In this Regulation:
the
Act means the Victims Rights
and Support Act 2013.
(2)
Notes included in this Regulation do not form
part of this Regulation.
Part 2Approved counselling
services
4Definitions
In this Part:
generalist counsellor means a person
who is a registered psychologist or is eligible for membership of the
Australian Association of Social Workers (other than as a student
member).
relevant
family member means a person who is a relative of a primary
victim who has died as a result of an act of violence, but who is not a family
victim.
specialist counsellor means a person
who holds general registration under the Health Practitioner Regulation
National Law to practise as a psychologist, or is eligible for membership of
the Australian Association of Social Workers (other than as a student member),
and who:
(a)
holds post-graduate qualifications, consisting of
a Masters degree or a higher level qualification, in social work, clinical
psychology, clinical neuropsychology, counselling psychology or forensic
psychology, or
(b)
in the opinion of the Commissioner, has
specialist counselling skills due to the person’s qualifications or
experience.
victim means:
(a)
a family victim, or
(b)
a primary victim or a secondary victim,
or
(c)
a relevant family
member,
but does not include a person who is the victim of an
act of violence:
(d)
arising in the circumstances described in section
25 (2) of the Act, unless the person is a family victim of the act and the act
apparently occurred in the course of the commission of the offence of murder
or manslaughter, or
(e)
arising in the circumstances described in section
25 (3) or (4) of the Act.
5Authorisation of payments for
approved counselling services
(1)
For the purposes of section 32 of the Act, the
Commissioner may authorise payments for approved counselling services for a
victim (other than a family victim or relevant family member):
(a)
for a period of up to 10 hours of counselling
(including counselling for the purposes of an application for continued
counselling), and
(b)
for such further periods of counselling as the
Commissioner may consider appropriate.
(2)
The Commissioner may consider a person to be a
victim (other than a family victim or relevant family member) referred to in
subclause (1), for the purposes of authorising payments for an initial period
of 2 hours of counselling for the person, if satisfied that counselling may
assist in establishing whether or not the person is a
victim.
(3)
The Commissioner must not authorise payments for
more than a total of 22 hours of counselling services for a person described
in subclause (1) within Australia unless satisfied that there are exceptional
reasons for doing so.
(4)
The Commissioner must not authorise payments for
counselling services provided outside Australia for more than a total of 22
hours or a maximum of $5,500, whichever is the lesser.
(5)
The Commissioner may, if the Commissioner
considers it appropriate, authorise the provision of approved counselling
services to a relevant family member.
(6)
The Commissioner may authorise payments for
approved counselling services within Australia for a victim who is a family
victim or relevant family member:
(a)
for a period of up to 20 hours of counselling,
and
(b)
for such further periods of counselling as may be
requested by the family victim or relevant family
member.
(7)
Payments may be made for approved counselling
services even though:
(a)
the victim is entitled to workers compensation or
a payment under Part 9B of the Police Act
1990 in respect of the act of violence concerned,
or
(b)
the maximum amount of financial assistance for
economic loss is payable in respect of the act of violence
concerned.
(8)
Payments for approved counselling services
provided to a victim who is resident in Australia are to be made from the Fund
directly to the service provider, except that payments for up to 2 hours of
the period referred to in subclause (2) may be made from that Fund by way of
reimbursement of the victim if it was not reasonably practicable for the
victim to obtain the Commissioner’s authorisation for the payment before
undertaking the counselling.
(9)
Payments for approved counselling services
provided to a victim who is resident outside Australia are to be made in the
manner approved by the Commissioner generally or in a particular case from the
Fund on production of an invoice, statement or other document verifying
provision of the relevant approved counselling service.
6Amount of
payments
(1)
For the purposes of section 33 of the Act, the
amount of the payment to be made or reimbursed for each hour of approved
counselling services provided to a victim who is resident in Australia is the
amount calculated in accordance with the scale set out in the Table to this
clause in respect of the relevant class of counsellor providing the
service.
(2)
In addition to the amount approved in accordance
with the scale set out in the Table to this clause, the amount so approved is
to include the amount of any GST that is payable in respect of the provision
of any such approved counselling services.
(3)
Any period of more than 2 hours during which a
counsellor travels to provide approved counselling services to a victim is to
be counted in calculating the amount of payment to be made or reimbursed for
each hour of approved counselling services provided to that victim under this
clause.
(4)
Subclause (2) does not permit the approval of an
amount that is greater than 10% of the amount of the costs approved (apart
from that subclause).
(5)
In this clause:
GST has the same meaning as in the
A New
Tax System (Goods and Services Tax) Act 1999 of the
Commonwealth.
Table
1
Generalist
counsellors
$120 per
hour
2
Specialist
counsellors
$144 per
hour
3
Psychiatrists
$256 per
hour
Part 3Financial
assistance
7Calculation of actual loss of
earnings
For the purposes of this Part, financial
assistance for actual loss of earnings is to be calculated at the rate of
weekly payment of compensation payable under the Workers Compensation Act 1987 after the
first 26 weeks of incapacity within the meaning of clause 1 of Part 19H of
Schedule 6 to that Act.
8Primary
victims
(1)
For the purpose of section 26 (1) (b) of the Act,
the prescribed amount of financial assistance for immediate needs is an amount
not exceeding $5,000.
(2)
For the purpose of section 26 (1) (c) of the Act,
the prescribed amount of financial assistance is an amount in total not
exceeding $30,000 for the following economic loss suffered by the primary
victim as a direct result of the act of violence concerned:
(a)
if the victim can demonstrate loss of actual
earnings—up to $20,000,
(b)
if the victim cannot demonstrate loss of actual
earnings—up to $5,000 for out-of-pocket expenses,
(c)
medical and dental expenses (other than expenses
for which immediate financial assistance is available under subclause
(1)),
(d)
up to $5,000 for expenses associated with
criminal or coronial proceedings relating to the act of violence, making
statements to police, preparing victim impact statements and similar justice
related expenses,
(e)
up to $1,500 for expenses incurred through loss
of, or damage to, clothing or other personal effects worn or carried by the
primary victim at the time of the act of violence.
9Parent, step-parent or
guardian of primary victim
For the purpose of section 27 (1) of the Act, a
parent, step-parent or guardian who is caring for a child who is the primary
victim of an act of violence is eligible for financial assistance of an amount
in total not exceeding $30,000 for the following economic loss arising as a
direct result of the act of violence concerned:
(a)
if the parent, step-parent or guardian can
demonstrate loss of actual earnings because of the need to care for the child
as a direct result of the act of violence—up to
$20,000,
(b)
if the parent, step-parent or guardian cannot
demonstrate such a loss of actual earnings—up to $5,000 for
out-of-pocket expenses,
(c)
medical and dental expenses of the child (other
than expenses for which immediate financial assistance is available for the
child under section 26 (1) (b) of the Act),
(d)
up to $5,000 for expenses associated with
criminal or coronial proceedings relating to the act of violence, making
statements to police, preparing victim impact statements and similar justice
related expenses,
(e)
up to $1,500 for expenses incurred through loss
of, or damage to, clothing or other personal effects worn or carried by the
primary victim at the time of the act of violence.
10Family
victim
(1)
For the purposes of section 29 (1) (b) of the
Act, the prescribed amount of financial assistance for immediate needs is an
amount not exceeding $5,000.
(2)
For the purposes of section 29 (1) (c) of the
Act, a family victim of an act of violence is eligible for payment of an
amount not exceeding $8,000 in total for funeral expenses described in that
paragraph.
(3)
For the purposes of section 29 (1) (d) of the
Act, the prescribed amount of financial assistance is an amount not exceeding
$5,000 in total for expenses associated with criminal or coronial proceedings
relating to the act of violence, making statements to police, preparing victim
impact statements and similar justice related expenses.
11Funeral and other expenses
incurred by persons other than family victims
For the purposes of section 47 (3) of the Act,
the prescribed amount for expenses incurred for:
(a)
immediate needs—is an amount not exceeding
$5,000, and
(b)
funeral expenses— is an amount not
exceeding $8,000.
12Recognition
payments
The following are the prescribed amounts of
recognition payment for the purposes of section 36 of the Act:
(a)
for a category A recognition payment referred to
in section 36 (1) (a) of the Act—$15,000,
(b)
for a category A recognition payment referred to
in section 36 (1) (b) of the Act—$7,500,
(c)
for a category B recognition
payment—$10,000,
(d)
for a category C recognition
payment—$5,000,
(e)
for a category D recognition
payment—$1,500.
Historical
notes
Table of amending
instruments
Victims Rights
and Support Act 2013 No 37. Assented to 3.6.2013. Date of
commencement, assent, sec 2.