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Victims of Crime Assistance (Miscellaneous
Amendments) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause 1 sets out the purpose of the proposed Act, which is to amend the
Victims of Crime Assistance Act 1996 to--
· remove restrictions on making interim awards and
provide that some may be made at registrar level;
· widen the circumstances in which childhood victims of
sexual assault may be awarded special financial
assistance;
· enable the Tribunal to determine a matter without a
hearing in certain circumstances;
· empower the Chief Magistrate to make guidelines in
relation to non-procedural matters;
· provide, in certain circumstances, that primary and
secondary victims can be treated as suffering an injury
on psychological evidence; and
· make possible the assignment to the State by a person of
their right to sue for damages or compensation after an
award of assistance is made to them.
Clause 2 provides that the proposed Act (except sections 5(1) and 5(2))
will commence on the day after Royal Assent. Sections 5(1) and
5(2) will commence on a day to be proclaimed. If they have not
come into operation before 1 January 2004 they will come into
operation on that day.
Clause 3 provides that the Principal Act being amended is the Victims of
Crime Assistance Act 1996.
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551046 BILL LA CIRCULATION 2/5/2003
Clause 4 amends the definition of people suffering a "deemed injury" in
section 3(2) of the Principal Act to include people who need
treatment or counselling as demonstrated by psychological
evidence.
Enabling the Tribunal to receive psychological evidence reflects
the current practice of the Tribunal in which nearly all reports are
obtained from psychologists as opposed to psychiatrists.
Clause 5 implements certain recommendations of the Review of Services to
Victims of Crime Report, released by the Department of Justice in
February 2002, by amending the procedures in the Principal Act
for making interim awards.
This clause amends section 24 of the Principal Act to allow the
Chief Magistrate to delegate to registrars the power to make an
interim award not exceeding a prescribed amount which will be
detailed in Regulations.
This will enable the Tribunal to deal with urgent interim
applications more quickly.
Clause 5 repeals section 56(2) and (2A) of the Principal Act.
Section 56(2) includes the requirement that the Tribunal not
make an interim award unless it is satisfied that the applicant will
be, or is likely to be, entitled to receive assistance when the
application is finally determined.
To date, a number of Magistrates have been reluctant to make
interim awards because if an applicant does not receive a final
award, section 56(3) of the Principal Act provides that the
amount of the interim award becomes a debt due to the State.
Section 56(3) provides that if an interim award is made but the
application for assistance is subsequently dismissed, the amount
of the interim award becomes a debt due to the State by the
applicant.
The amendments made by this clause will enable the Tribunal to
be more accessible and responsive to victims, particularly those
with urgent needs. They will also make it easier for Magistrates
and other delegated staff of the Tribunal to make interim awards.
Clause 6 amends section 33 of the Principal Act. It details the
circumstances in which the Tribunal may determine an
application, or make a decision in relation to an application,
without conducting a hearing.
New section 33(1)(b) provides that where the Tribunal considers
it appropriate, and has obtained the consent in writing of the
applicant, a determination can be made without a hearing.
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Clause 7 amends section 45 of the Principal Act to provide that the Chief
Magistrate may issue guidelines that the Tribunal may take into
account as to--
· the matters that may be considered in determining
whether expenses of a specified kind are reasonable;
and
· any other matter related to the determination of an
application.
Guidelines which set out what is reasonable will help to promote
consistency of practice within the Tribunal and assist in
managing the expectations of victims. They may also be used as
a means of disseminating information to applicants and potential
applicants.
It is not intended that guidelines made under this clause will
fetter the discretion of Magistrates who constitute the Tribunal.
Clause 8 amends section 51 of the Principal Act. Section 51 allows a
person to assign to the State his or her right to recover from any
other person, by civil proceedings, damages or compensation in
respect of the injury or death to which the award relates.
This clause clarifies that the assignment can only be made after
the Tribunal has made an award.
Clause 9 amends section 77 of the Principal Act. Section 77 currently
provides that childhood victims of sexual assault may apply for
an award of special financial assistance in circumstances
where--
· the act of violence occurred on or after 1 July 1997; or
· the act of violence occurred at any time before 1 July
2000 but the offender is committed or directly presented
for trial on or after 1 July 1997 (the date on which
compensation for pain and suffering was abolished).
This section has unintentionally excluded certain childhood
victims who were intended to come within the scheme.
Clause 9(2) expands the range of circumstances in which
childhood victims of sexual assault may make an application for
special financial assistance.
This clause provides that childhood victims of sexual assault will
be able to apply for special financial assistance where the act of
violence occurred at any time prior to 1 July 2000 (the date from
which applicants were entitled to apply for special financial
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assistance) if a person has, on or after 1 July 1997, been charged
with a relevant offence and--
· the charges are heard summarily (including the
Children's Court); or
· the person charged dies without the charge having been
determined.
Victims of people charged in these circumstances are currently
excluded from obtaining compensation.
Clause 9(4) provides that an application may be made at any time
within two years after the commencement of this provision, the
date on which the charge is heard and determined summarily or
the date of death of the person charged--whichever is the later.
This clause ensures that victims who apply for special financial
assistance as a result of these amendments will not be excluded
from applying if they have not complied with section 29 of the
Principal Act. Section 29 states that an application must be made
within two years of the occurrence of the act of violence.
Clause 9(6) provides that applicants who have made an
application with the Tribunal which has been finally determined
prior to the commencement of these amendments, are entitled to
make an application to vary the award to include an award of
special financial assistance.
Clause 9(8) provides an exception to section 52(c) of the
Principal Act to enable applicants who come within the criteria in
these amendments to make an application for special financial
assistance. Section 52(c) provides that the Tribunal must refuse
to make an award of assistance if an earlier application for
assistance has been made arising from the same act of violence,
whether or not the earlier application has been determined.
Clause 9(8) provides that where an applicant has made an
application to the Tribunal which has not been finally
determined, they are entitled to amend the application to include
a claim for special financial assistance in accordance with
section 8A of the Principal Act.
These amendments will ensure that applicants who come within
the criteria in these amendments but have made their applications
prior to commencement of these amendments will not be
excluded from receiving an award of special financial assistance
under section 8A of the Principal Act.
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Clause 10 makes it clear that, subject to section 77, any amendments made
by this Bill apply to proceedings in the Tribunal that occur on or
after the commencement of the amending provision.
This clause applies irrespective of when the application was
made to the Tribunal.
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