VICTIMS OF CRIME ASSISTANCE BILL 2006 Explanatory Statement

Northern Territory Explanatory Statements

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VICTIMS OF CRIME ASSISTANCE BILL 2006

VICTIMS OF CRIME ASSISTANCE BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 45

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Victims of Crime Assistance Bill 2006 (“the Bill”) repeals and replaces the current financial assistance scheme for victims under the Crimes (Victims Assistance) Act.

The Bill establishes a new administrative scheme to provide victims with assistance to overcome and rehabilitate from injuries sustained as a result of a crime committed against them. This new scheme provides counselling for victims as well as financial assistance for financial loss and compensable injuries.

The main elements of the proposed scheme are as follows:
· There are three main types of assistance – counselling assistance, financial assistance for economic loss (i.e. out-of-pocket expenses) and financial assistance for compensable injuries (similar to the awards for pain and suffering made at common law);
· All victims, including extended family members of a primary victim, are eligible for counselling;
· Victims who are eligible for compensation under the Work Health Act or Motor Accidents Compensation Act will be eligible for counselling but will not be eligible for financial assistance under this scheme;
· Total maximum financial assistance for a single primary or secondary victim will increase from $25,000 to $40,000;
· The $40,000 maximum can include up to $10,000 in financial loss (such as loss of earnings and medical costs) and up to $40,000 for the injury itself, as long as the total award does not exceed $40,000;
· Compensation for the injury itself will be determined by a table of “compensable injuries” which will specify set amounts for specific injuries;
· A minimum threshold of $7,500 will be introduced in relation to compensable injuries although it will be able to be met by a combination of several separate injuries;
· There will be no minimum threshold for financial loss;
· Of the $10,000 maximum available for financial loss, up to $5,000 can be made immediately available to victims, in circumstances of hardship;
· Applications for financial assistance will be made to the new Crimes Victims Services Unit (“CVSU”), established under the Victims of Crime Rights and Services Bill 2006;
· The application process will be simplified and case managers at the CVSU will be available to assist victims to prepare their applications;
· Final decisions as to eligibility and assessments of awards will be made by legally trained assessors on an administrative basis;
· Guidelines will be developed to assist the Director of the CVSU and the assessors in making decisions;
· Appeals will be available to the Local Court against a decision of an assessor and legal costs will be payable for successful appellants;
· The current provisions in the Crimes (Victims Assistance) Act providing for recovery of assistance from an offender and the establishment of the Victims Assistance Fund (including the imposition of the victims levy) will continue in the same form.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Victims of Crime Assistance Act 2006.

Clause 2. Commencement.

The Act will come into operation on the date fixed by the Administrator by notice in the Gazette.

It is proposed that the Act and new scheme will commence in early 2007. This will ensure adequate lead time for the new administrative unit to be set up, for the counselling scheme to be established, for formal procedures and forms to be developed and for the general community, including the victims groups and the legal profession to prepare for the changes.

Clause 3. Objects.

This clause sets out the objects of the Act.

Clause 4. Definitions.

This clause contains the definitions necessary for the Act. Where more complex definitions or explanations are required for a term used under the Bill, they have been defined in separate clauses.

Clause 5. Violent Act.

The assistance scheme does not apply to all victims of criminal acts; it only applies to victims of a “violent act”, that is, where a victim has been injured as a result of a criminal act. This clause defines and clarifies the meaning of “violent act”.

A violent act therefore is defined as a criminal act (whether committed by one or more persons) that occurs in the Territory and directly results in the injury or death of one or more persons. This is regardless of where the injury or death occurs.

Sub-clause (2) also clarifies that a person will still be eligible to apply for victim’s assistance even if the offender did not legally commit an “offence” as such because they were excused from criminal responsibility. For example, a person will be excused from criminal responsibility for murder if they were mentally impaired. In this case, the murder would still be classified a “violent act” under this Bill even though legally no offence had been committed.

The definition of “violent act” also encompasses a “series of related criminal acts”. A series of related criminal acts occurs if two or more acts are committed against the same person the acts occur approximately at the same time, occur over a period of time by the same person or persons or they share another common factor.

Sub-clause (4) puts beyond doubt that a series of related criminal acts constitutes a single violent act under the Bill. This means that a victim of a series of related criminal acts is only eligible for one payment of assistance in relation to that series of acts. Currently the scheme under the Crimes (Victims Assistance) Act does not include such a limitation. However, this has been exploited in the past with victims making multiple applications in relation to each single occurrence. This approach cannot be sustained with the limited funds available to Government to fund the scheme and it may ultimately impact on the ability to assist all victims appropriately. Nor does this current approach allow the decision maker to properly consider the totality of the offences against the victim. This limitation will ensure that the limited pool of funds available under the financial assistance scheme is distributed in a fair and sensible manner to the full range of victims in the Territory. The maximum amount available under the scheme has been increased from $25,000 to $40,000 in recognition of the fact that this limitation has been included in the reformed scheme.

Sub-clause (5) further clarifies that a criminal act may be related to another criminal act even though charges for those offences are tried or heard separately.

Finally sub-clause (6) provides that once an application is notified by the Director of an award of financial assistance in relation to an act or series of acts, another criminal act that occurs after the notification cannot be related to that earlier act or those earlier acts, even if committed by the same offender.

Clause 6. Injury.

This clause defines that, for the purposes of the Bill, “injury” is a physical illness or injury, a recognizable psychological or psychiatric disorder or pregnancy. An injury can also be a combination of any of these things.

Sub-clause (2) clarifies that an injury resulting from the loss of or damage to property can not be an “injury” for the purposes of the scheme.

Clause 7. Compensable Injury.

This clause defines the term “compensable injury”. This term is applied to specific injuries listed in the Regulations for which non-financial loss is payable to a victim. The amounts payable for specific injuries will be determined by a prescribed table of standard amounts.

Generally, if a victim of crime receives an injury listed in the regulations, the victim will be entitled to the specified standard amount for the injury. In most cases the standard amount will be a specific amount but for a few injuries, the standard amount may be an amount within a specified range.

The regulation-making power in clause 69 provides for matters to be prescribed relating to awards for compensable injuries, including the following:
· Different awards for different categories of a compensable injury (for example, a broken leg that results in a long term disability will attract a higher award than a broken leg that the victim quickly recovers from);
· The assessment of a standard amount for more than one compensable injury directly resulting from the same violent act (this will allow assessments of a range of injuries received from a single violent act to be assessed as a whole rather than as separate injuries);
· Reductions of standard amounts. This will apply where there have been multiple injuries from a single violent act – in those cases, the second and less serious injuries will attract a percentage of the standard amount. The most serious injury will be fully compensated;
· Procedures to establish whether a person has a compensable injury or the degree of seriousness of a compensable injury;
· Choices available to the applicant for an award.

Clause 8. Form of applications and lodgment at CVSU.

This clause provides for the manner in which applications are to be lodged. Applications are to be lodged in the approved form at the CVSU or with a person acting for the CVSU and can be lodged in a variety of ways, including by email or facsimile.

PART 2 – ELIGIBILITY TO APPLY FOR ASSISTANCE
Divisions 1 – Categories of victims of violent acts and eligibility

Clause 9. Primary Victims.

This clause defines a “primary victim” for the purposes of the assistance scheme. Generally, a primary victim is a person who suffers an injury or dies as a direct result of a violent act.

In addition, clause (2) provides that a primary victim can be a person who suffers an injury or dies as a direct result of -
· trying to prevent another person from committing a violent act;
· trying to rescue or help a victim of a violent act;
· trying to arrest a person who is committing or has just committed a violent act.

Clause (2) is intended to apply to people who assist at a scene of a crime or attempt a citizen’s arrest. It will not apply to people assisting in the course of their employment as, for example, police officers or emergency workers. They will be eligible for compensation under the Work Health Act.

Clause 10. Primary victim’s eligibility to apply for assistance.

A primary victim of a violent act is eligible to apply for the following range of assistance under the scheme:
· counselling required because of the violent act;
· if there are circumstances of financial hardship, immediate assistance of up to $5,000 for financial loss;
· financial assistance of up to $10,000 for financial loss (which would include any immediate assistance);
· financial assistance for one or more compensable injuries of up to $40,000 (as long as the standard amount is at least $7,500).

Under clause 38 of the Bill, the total amount that any primary victim can receive is $40,000.

Sub-clause (5) clarifies that a primary victim’s financial loss must result from the violent act and can consist of the following:
· his or her loss of earnings;
· his or her expenses due to loss of clothing and other personal effects;
· his or her medical expenses;
· in exceptional circumstances, other expenses to assist his or her recovery (this could include relocation expenses).

Clause 11. Secondary Victim.

This clause defines a “secondary victim” for the purposes of the assistance scheme. Generally a secondary victim is a person who is present at the scene of a violent act and suffers an injury as a direct result of witnessing the violent act.

In addition, a secondary victim can be a person who suffers an injury as a direct result of subsequently becoming aware of a violent act if the person is-
· where the primary victim is a child - a parent, step-parent or guardian of the primary victim at the time the act occurred; or
· a child or stepchild of the primary victim or a child under the guardianship of the primary victim when the act occurred.

Subclause (3) confirms that a person cannot be a secondary victim if the person committed the violent act.

Clause 12. Secondary victim’s eligibility to apply for assistance.

A secondary victim of a violent act is eligible to apply for the following range of assistance under the scheme:
· counselling required because of the violent act;
· if there are circumstances of financial hardship, immediate assistance of up to $5,000 for financial loss;
· financial assistance of up to $10,000 for financial loss (which includes any immediate assistance);
· financial assistance for one or more compensable injuries of up to $40,000 (as long as the standard amount is at least $7,500);
· If a secondary victim is also a family victim, the secondary victim can also apply as a family victim for funeral expenses (this is an exception to the rule, under clause 25(1), which provides that a victim can only apply in one category of victim).

Under clause 39 of the Bill, the total amount that any secondary victim can receive is $40,000. However, if there is more than one secondary victim the $40,000 must be shared amongst all secondary victims.

Sub-clause (6) clarifies that a secondary victim’s financial loss must result from the violent act and can consist of the following:
· his or her loss of earnings;
· his or her medical expenses;
· in exceptional circumstances, other expenses to assist his or her recovery (this could include relocation expenses).

Clause 13. Family victim.

The purpose of this category is to recognise the fact that a range of family victims may suffer from the injury or death of a family member as a result of a violent crime.

The main focus of this category is on the fact that family members may incur expenses on behalf of a primary victim who dies. This is different to the situation where a primary victim survives the violent act as the primary victim remains responsible for all their medical costs, whether via Medicare or otherwise. They would also continue to be financially responsible for their dependents whether through their work entitlements or via Centrelink benefits. However, if the primary victim dies there can be a range of family members who may be left with responsibility for bills relating to the primary victim, such as funeral costs and medical costs.

This clause defines a “family victim” for the purposes of the assistance scheme. Generally a family victim is a person who, at the time the violent act occurs, is one of the following:
· the spouse or de facto partner of the primary victim;
· a parent, step-parent or guardian of the primary victim;
· a child or stepchild, or a child under the guardianship, of the primary victim;
· a person entirely or substantially dependent for financial support on the primary victim.

Subclause (2) clarifies that a reference to a child of the primary victim includes a reference to a child of the primary victim born after the violent act occurs. This would cover a child who survived despite being in utero when their mother was murdered.

It is immaterial whether or not the family victim suffers an injury. This is unlike the eligibility for all other victims as this clause is aimed at assisting people who have family responsibilities towards a primary member or who are dependent on the primary victim in one way or another.

Subclause (4) confirms that a person cannot be a family victim if the person committed the violent act.

Clause 14. Family victim’s eligibility to apply for assistance.

A family victim of a violent act (whether it involves the death of the primary victim or not) is eligible to apply for counselling.

A family victim of a violent act directly resulting in the death of the primary victim is eligible to apply for –
· immediate financial assistance of up to $5,000 for funeral expenses and, if there are circumstances of financial hardship, for other financial loss;
· financial assistance of up to $10,000 for financial loss (which includes any immediate assistance);

Under clause 40 of the Bill, there is a pool of $40,000 available for all family victims of each violent act to be shared amongst all family victims.

A family victim’s financial loss can be for the following:
· funeral expenses for the primary victim;
· if the family victim was entirely or substantially dependent on the primary victim, loss of money that the family would have received from the primary victim in the year after the death;
· reasonably incurred medical expenses on behalf of the primary victim;
· in exceptional circumstances, other expenses to assist family victim’s recovery from the primary victim’s death (this could include relocation expenses).

Clause 15. Related victim.

This category recognizes that a wide range of people may be affected by a violent act committed against a person and who may need support in coming to terms with a friend or relative’s death or injury at the hands of an offender.

This clause defines “related victim” for the purposes of the Bill. A “related victim” is a person who is not a family victim but who is a relative of or has an intimate personal relationship with the primary victim.

Subclause (2) confirms that a person cannot be a related victim if the person committed the violent act.

The Regulations may exclude persons from the category of related victim.

Clause 16. Related victim’s eligibility to apply for counselling.

All related victims are eligible to apply for counselling.

Division 2 – Miscellaneous provisions

Clause 17. Eligibility is injury suffered in a motor accident.

This clause provides that a person injured as a result of a violent act is not eligible to apply as a primary victim for assistance under the Victims of Crime Assistance Bill 2006 if they are entitled to be paid, are being paid or have been paid a benefit under the Motor Accidents (Compensation) Act for the injury. Even if the person has not made or is not planning to make a claim under that Act, he or she is not eligible to apply for financial assistance under this Bill.

The rationale for disentitling such victims of crime from receiving victims’ financial assistance is to treat all injuries consistently. It is inappropriate and unfair to allow a person to access compensation from a variety of funds. The different statutory compensation schemes provide different types and amounts of assistance and therefore should be completely separated. The effect of allowing victims to access a variety of compensation schemes is that these victims will often be better off than other victims of crime or other victims of car accidents. This puts unnecessary and unfair pressure on tax-payer funded statutory compensation funds and creates unjust inconsistencies between injured persons. A person injured by a car accident will suffer the same injuries regardless of whether it is a result of a dangerous act or just a simple accident.

Nevertheless, it is recognized that a person may suffer added emotional stress in coming to terms with the fact that they have been a target of a criminal offence. For this reason, subclause (4) clarifies that all victims of offences also covered by the Motor Accidents (Compensation) Act, whether primary, secondary, family or related victims, will be eligible for counselling under the counselling scheme.

Subclause (3) clarifies that the people in the extended victim categories relating to a motor-vehicle related offence are also not eligible for assistance under the Bill.

Clause 18. Eligibility if injury suffered in course of employment.

This clause provides that, similar to a victim of a motor vehicle related offence, a victim injured as a result of a violent act is not eligible to apply for assistance under the Victims of Crime Assistance Bill 2006 if they are entitled to be paid, are being paid or have been paid compensation under the Work Health Act for the injury. Even if the victim has not made or is not planning to make a claim under that Act, he or she is not eligible to apply for financial assistance under the Bill.

A similar rationale applies to the exclusion of these victims from the victims of crime financial assistance scheme as applies to the exclusion of victims eligible to be paid a benefit under the Motor Accidents (Compensation) Act. The compensation scheme under the Work Health Act was developed for the specific needs of people injured in the work place and is much more generous than the crimes victims assistance scheme, specifically in relation to compensation for financial loss and serious permanent impairment. Work Health claims can be worth millions.

As with the exclusion of people entitled to claim under the Motor Accidents (Compensation) Act, all victims of offences also covered by the Work Health Act, whether primary, secondary, family or related victims, will be eligible for counselling under the counselling scheme.

Subclause (3) clarifies that the people in the extended victim categories are also not eligible for victims of crime financial assistance under the Bill.

Clause 19. Deceased primary victim’s estate.

This clause clarifies that if the primary victim dies, then the entitlement to receive financial assistance does not survive for the benefit of the primary victim’s estate.

This clause does not effect a secondary, family or related victim’s entitlement to access assistance in relation to the primary victim’s death or medical or other expenses incurred as a result of the offence committed against the primary victim.

PART 3 – VICTIMS COUNSELLING SCHEME

Clause 20. Establishment of Victims Counselling Scheme.

This clause establishes the Victims Counselling Scheme. The Regulations and guidelines will provide for the detail surrounding the scheme.

The counselling scheme has been established in recognition of the fact that this type of immediate assistance is much more effective in assisting victims to come to terms with the effects of a crime than the current approach where only financial assistance is available. The deficiencies of the current scheme are exacerbated by the fact that financial compensation is only available via a complex and intimidating court process a long time after the offence has occurred.

It is intended that a range of non-Government organisations and individuals will be engaged on a contractual basis to provide immediate crisis counselling for victims in different regional areas across the Northern Territory. Part of the value of this scheme will be that this funding will enhance the current services in regional areas and allow existing agencies to take on more staff. These regional services may be able to reach more remote areas as part of their existing services. Additionally, in the regional and remote areas where formal counselling is not always appropriate, it is anticipated that part of the engagement will include general victim support and assistance including, for example, the running of victim community education programmes and victim support groups.

There will be no set upper limit on the amount of counselling that an individual victim will be able to receive under the scheme. However, if a counsellor determines that a victim requires further specialist psychological or psychiatric treatment, the costs for this treatment will need to form part of an application for formal financial assistance as general counselling organisations will not have that expertise.

Clause 21. Approval of counsellors and counselling services.

This clause provides for the approval of individual counsellors and counselling organisations for the purposes of the scheme. This will provide flexibility in the contracting arrangements for counselling to enable both individuals and non-government organisations to provide the counselling services, depending on the different types of services required in the different areas of the Northern Territory.

Clause 22. Application for counselling.

This clause provides that a victim is to apply for counselling directly to an approved person or organisation.

PART 4 – VICTIMS FINANICAL ASSISTANCE SCHEME

Division 1 – Preliminary matters

Clause 23. Establishment of Victims Financial Assistance Scheme.

This clause formally establishes the Victims Financial Assistance Scheme.

Clause 24. Assessors.

This clause provides for the appointment of assessors for the purpose of conducting assessments of applications for financial assistance. Assessors are to be appointed by the Minister and must be admitted to practice as a legal practitioner in an Australian jurisdiction.

If the Director is appropriately qualified, he or she can also be appointed as an assessor. This provides flexibility within the CVSU to address variations in the number of claims at any given time.

Clause 25. Applications for financial assistance generally.

This clause provides that an eligible victim can only apply in one category of victim. Under clause 12(5), the exception is when a secondary victim is also a family victim. In this case, the secondary victim can also apply as a family victim in relation to funeral expenses. This might apply where the secondary victim witnessed the murder of a family victim and is entitled to financial assistance in relation to a psychological injury caused by witnessing the offence. The secondary victim may also incur financial expenses in relation to the funeral of the primary victim. In this case, it is reasonable that additional assistance should be available for the funeral expenses.

Subclause (2) provides that an eligible victim may only apply for one award for the same violent act. However, the victim may apply for both an immediate payment and an award, as any immediate assistance will form part of the overall award. A victim is also entitled to apply for more than one immediate payment as long as the total of the payments does not exceed the $5,000 maximum for such payments. It should also be noted that this does not prevent a victim from applying under clause 46 for an increase in an award if the circumstances change, for example, if the injuries are reassessed as being more serious than first anticipated.

Subclause (5) allows for applications for financial assistance to be made by a person on behalf of a victim. The person making the application must have a genuine interest in the welfare of the victim. This could include the parent or guardian of a victim who is a child, but it could also include the guardian of a victim with an intellectual disability or the spouse of a victim who is too ill to make the application.

Division 2 – Immediate payments of financial assistance

Clause 26. Application to Director for immediate payment.

The purpose of the immediate payments is to provide victims, in circumstances of financial hardship, with up-front financial assistance. Decisions about this type of assistance are to be made as quickly as possible and with less formality than the general awards of financial assistance. It is anticipated that these types of payment will cover such things as urgent medical costs, particularly dental costs, which are not covered by Medicare (eg replacement of glasses or dentures). It may also cover funeral costs for victims who are killed as a result of a violent act. In exceptional circumstances, a payment might also be used to assist a victim in a dangerous situation to upgrade their security or move to another location.

This clause provides for an application to be made to the Director of the CVSU for an immediate payment of financial assistance. The maximum immediate payment that can be awarded is $5,000. Although clause 25(3) allows for additional applications for immediate payments to be made by a victim in relation to the same violent act, as long as the total of all immediate payments in relation to that victim for the violent act does not exceed $5,000.

Subclause (2) sets the time frame for when applications for immediate payment can be made. Where the eligible victim has not already formally applied for an award of financial assistance, the application for the immediate payment can be made no later than 2 years after the occurrence of the injury or death.

Where a formal application for an award of financial assistance has already been made, the application for immediate payment can be made at any time before the assessor decides the formal application.

Subclause (3) sets out the information that must be included in an application for immediate payment. This includes the category of victim the applicant is applying under, the reasons the immediate payment is required, the amount sought, whether the applicant has or intends to apply for an award of financial assistance, a description of the violent act, a description of the injury (if relevant) and whether the applicant has made a claim for insurance or compensation under another scheme in relation to the injury.

Clause 27. Decision about immediate payment.

Although applications for awards of financial assistance are to be decided by assessors via a more formal process, decisions about immediate payments are made by the Director to ensure they are made as quickly as possible. This clause requires the Director to make a decision as soon as practicable after receiving an application for immediate payment.

Subclause (2) provides that the Director must only approve the payment if he or she is satisfied of the following:
· the applicant actually incurred or will incur the claimed financial loss;
· the claimed financial loss is due to the violent act described in the application; and
· the victim is otherwise eligible under Part 2, that is, there must be circumstances of hardship and the type of assistance must be available in relation to the category of victim the applicant is applying under.

Subclause (3) clarifies that the Director may be satisfied of the matters in subclause (2) even if no person has been charged with or found guilty of the violent act or a person has been charged with or found guilty of a different violent act. This is because the same level of proof is not required in relation to applications for financial assistance as for the prosecution of criminal matters.

Once a decision is made by the Director he or she must also provide written notice of the decision to the applicant. If the Director approves the immediate payment, the notice must inform the applicant of the amount to be paid, any directions as to how the payment is to be made, the reason for the payment and the circumstances when a reduction or refund of the immediate payment may be made or required. The notice must also inform the applicant that, under clause 28(1), the decision by the Director as to an immediate payment is not subject to review.

If the Director refuses to approve an immediate payment, the notice must inform the applicant of the reason for the refusal and the matters under clause 28.

Clause 28. Effect of decision.

This clause provides that a decision by a Director under section 27 is final and not subject to review.

However, subclause (2) clarifies that the refusal of an immediate payment does not prevent the applicant from also applying for financial assistance under the general provisions, which will be considered by an assessor. The original claim for immediate payment can be included in the application for financial assistance.

Clause 29. Payment.

This clause provides that, once the Director approves an immediate payment, the Territory must pay the financial assistance as specified by the Director in the notice under clause 27.

Division 3 – Applications for awards of financial assistance

Clause 30. Application to Director for award.

This clause provides that an eligible victim of a violent act may apply to the Director of the CVSU for an award of financial assistance.

Clause 31. Time limit for lodging application.

This clause provides that an application for financial assistance must be made no later than 2 years after the occurrence of the injury or death described in the application.

However, subclause (2) allows the Director to accept a later application if the Director considers the circumstances justify it.

Subclause (3) provides for matters the Director must have regard to (in addition to the Regulations and guidelines) when deciding whether to accept a late application. These matters are:
· whether sexual assault, domestic abuse or child abuse was involved;
· the age of the victim at the time of the violent act;
· whether the offender was in a position of power, influence or trust in relation to the victim;
· any mental incapacity of the victim;
· whether the delay in making the application will affect the assessors ability to make a fair decision; and
· whether the violent act was reported to a police officer within a reasonable time.

If the Director refuses to accept a late application, he or she must give the applicant a notice of the refusal including reasons for the decision and details about the applicant’s right to appeal.

Clause 32. Form of application.

This clause lists all the information and documentation that should be included in an application for financial assistance.

The following information must be included:
· what category of victim the applicant is applying under;
· description of the violent act, name of the offender (if known) and date of the violent act;
· relevant information about the statement to police, or the reasons why no statement was made;
· a description of the injury resulting from the violent act, if relevant;
· the standard amount sought for the compensable injury or injuries, if relevant;
· the nature and amount of the financial loss, if relevant;
· description of the applicant’s exceptional circumstances, if relevant;
· whether an immediate payment has been applied for or received;
· whether civil or criminal proceedings have been commenced and any outcomes;
· any related claims under the Work Health Act or Motor Accidents (Compensation) Act;
· whether applicant believes there may be any other victims of the violent act;
· any other information required by the Regulations.

The application must also be accompanied by the following documents:
· copy of the applicant’s statement to Police unless reasons have been given as to why a statement has not been made;
· all documents in the applicant’s possession supporting the application such as medical reports and invoices for expenses;
· any other documents required by the Director or by regulation.

Clause 33. Procedure after acceptance of application.

This clause provides that the Director must give an application for financial assistance to an assessor as soon as practicable after receiving it.

The Director must give a copy of the application to (if practicable) each offender named in the application and any other person the Director considers to have an interest in the application. The Director must also notify each of these persons of the fact that they are entitled to make a written submission to the Director in relation to the application no later than 28 days after the date of the notice.

Subclause (4) provides that the Director must forward each submission to the relevant assessor.

Division 4 – Deciding applications for awards of financial assistance

Clause 34. Deciding application and deferring decision.

Clause 34(1) requires the assessor to decide an application for financial assistance in accordance with the Act and Regulations. The assessor can either award financial assistance or refuse to award financial assistance.

Subclause (2) provides that the assessor must decide the application as soon as practicable after the end of the 28 day period given to the offender and other interested persons to make submissions under clause 33(3).

The purpose of this clause is to highlight that decisions about financial assistance should be made as quickly as possible. This is one of the significant advantages of moving to an administrative scheme.

However, in some cases the issues surrounding the application may not be clear and it will be necessary for the assessor to defer his or her decision. To accommodate this, subclause (3) allows the assessor to defer the decision until he or she has obtained further information or reports or (where relevant civil or criminal proceedings have commenced) until the proceeding is determined. It is not intended that all decisions about financial assistance applications will be deferred where related legal proceedings have commenced – it is only those where the assessor is having difficulty making a decision.

The assessor may also defer the decision if the applicant was named as an offender in a previous application and the Territory wishes to recover the amount of assistance under that previous application. In these cases, clause 57 allows the Territory to apply to the Court to set-off this previous amount the applicant is liable to pay as a previous offender against the amount he or she may be entitled to receive as a victim of the later offence.

Clause 35. Examination of and report about applicant.

This clause allows for the assessor to require the applicant to undergo an examination by a medical practitioner, psychologist or psychiatrist, where the assessor is unable to make a fully considered decision based on the information and reports included with the initial application.

Where such an examination is required, the person examining the applicant must make a report about the applicant’s injury and give it to the assessor.

Subclause (3) provides that the expenses of the examination and report must be paid by the Territory to the person making the report.

Subclause (4) allows the assessor to decide not to award financial assistance to the applicant if he or she, without reasonable excuse, refuses or fails to undergo an examination as required by the assessor.

Clause 36. Obtaining information and documents.

This clause empowers the assessor to obtain the information and make the inquiries necessary for him or her to make a fully considered decision. Although the intention is that applicants, with the assistance of the case managers if necessary, will prepare their own applications, the assessors will still need to have these powers in case the applicant is unable to identify, provide or access the necessary information.

Subclause (2) allows the assessor to require the applicant, by written notice, to give the assessor further information or documents relevant to the application.

Subclause (3) allows the assessor to decide not to award financial assistance to the applicant if he or she, without reasonable excuse, refuses or fails to give the assessor the information or documents required by a notice under subclause (2).

Under subclause (4) the assessor can also require any other person to give the assessor information or documents described in the notice within a time specified in the notice.

It is an offence for any person required by the assessor to provide information or documents to refuse or fail to do so, without reasonable excuse.

The maximum penalty for non-compliance is 20 penalty units for a natural person and 100 penalty units for a body corporate. Currently under the Penalty Units Act, a penalty unit is $110.

Clause 37. Matters to be established initially.

This clause provides that before considering whether to make an award, the assessor must be satisfied of the following:
· the applicant actually suffered the described injury or financial loss as a direct result of the described violent act; and
· the victim is otherwise eligible under Part 2 to make an application for financial assistance for the violent act, that is, the victim falls into the relevant category of victim and the type of assistance must be available in relation to the category of victim the applicant is applying under.

As with clause 27(3), the Director may be satisfied of the matters in subclause (1) even if no person has been charged with or found guilty of the violent act or a person has been charged with or found guilty of a different violent act. This might be particularly necessary in matters where an offender’s charge has been reduced for any reason from, for example, serious sexual assault down to indecent assault. In these cases, if the assessor is satisfied on the balance of probabilities, that the victim should receive financial assistance for the compensable injury for the higher category of sexual assault, it is reasonable that the higher standard amount should be available for the victim’s compensable injury.

Clause 38. Award to primary victim.

This clause clearly sets out the maximum amounts each primary victim can be awarded. The maximum amount of financial assistance that may be awarded to a primary victim is $40,000, even if the victim’s financial loss and compensable injuries is calculated to be more than $40,000.

The maximum available to a primary victim for financial loss described in clause 10(5) (that is loss of earnings, expenses due to loss of clothing and personal effects, medical expenses and other expenses to assist the victim’s recovery) is $10,000.

The assessor can only award financial assistance for one or more compensable injuries if the total of the standard amount for the injury or injuries is at least $7,500.

Clause 39. Award to secondary victims.

This clause clearly sets out the maximum amounts each secondary victim can be awarded. The maximum amount of financial assistance that may be awarded to a secondary victim is $40,000, even if the total financial loss and compensable injuries is calculated to be more than $40,000. However, where there is more than one secondary victim to a particular violent act, the maximum that can be awarded to all secondary victims is $40,000.

The maximum available to a secondary victim for financial loss described in clause 12 (that is loss of earnings, medical expenses and other expenses to assist the victim’s recovery) is $10,000.

The assessor can only award financial assistance for one or more compensable injuries if the total of the standard amount for the injury or injuries is at least $7,500.

Subclause (4) provides that if the financial assistance for all secondary victims of the same violent act is assessed to be more than $40,000, the assessor must proportionately reduce each award to total the maximum amount.

However, under subclauses (5) and (6), if any of the secondary victims who witnessed the death of a primary victim were parents or guardians of the primary victim who is a child, or were children of the primary victim or were children under the guardianship of the primary victim, they will get primacy over other secondary victims.

Only if the maximum amount of $40,000 is not awarded to the secondary victims under clauses (5) and (6) will other secondary victims be eligible to receive assistance.

Clause 40. Award to family victims.

This clause clearly sets out the maximum amounts each family victim can be awarded. The maximum amount of financial assistance that may be awarded to a family victim is $10,000. However, where there is more than one family victim to a particular violent act, the maximum that can be awarded to all family victims is $40,000, even if the total financial assistance is assessed to be more than the maximum amount.

The maximum available to a family victim for financial loss described in clause 14 (that is funeral expenses, loss of financial support from primary victim, primary victim’s medical expenses and other expenses to assist the victim’s recovery) is $10,000.

Subclause (3) provides that funeral expenses are to be awarded before apportioning any other financial assistance to family victims.

If the financial assistance for all family victims of the same violent act is assessed to be more than $40,000, the assessor must proportionately reduce each award of financial assistance.

However, under subclauses (5) and (6), if any family victims were totally or substantially dependent on the primary victim, they will get primacy over other family victims.

Only if the maximum amount of $40,000 is not awarded to the family victims under clauses (5) and (6) will other family victims be eligible to receive assistance.

Subclause (8) provides that the assessor can only award financial assistance to the family victims of the same violent act if the assessor is satisfied that no other family victim of the act is likely to make an application for an award. This provision was included because this category potentially includes a large range of victims, and it was important to ensure that deserving victims are not excluded from the pool of money because other victims were quicker to apply.

The assessor may satisfy himself or herself in any manner that there are no other family victims likely to make an application for an award. However, if the assessor is unable to do so, subclause (9) provides for the manner in which he or she can be satisfied. Subclause (9) provides that, if 3 months has passed since the last application by a family victim was made and no other family victim has made an application or notified the assessor that he or she intends to do so, then the assessor can be satisfied that no other family victim is likely to make an application.

Clause 41. When award may be reduced.

This clause provides that the assessor may reduce an award of financial assistance after taking into account a range of matters. Such a reduction is discretionary and is similar to section 10 of the current Crimes (Victims Assistance) Act, which requires the Court to take the conduct of the victim into account. However, this clause is more specific and refers to the following matters:
· any behaviour, condition, attitude or disposition of the victim that directly or indirectly contributed to the injury or financial loss;
· whether the applicant participated in the violent act, or encouraged or gave assistance to the offender;
· whether the applicant failed to take reasonable steps to mitigate the injury or financial loss;
· whether the award is likely to benefit the offender because of a relationship or connection between the applicant and the offender;
· any other matters justifying the reduction.

A reduction under this subclause is to be an amount the assessor considers reasonable in the circumstances.

Clause 42. When award must be reduced.

This clause provides for when the assessor must reduce the award. Essentially, an award must be reduced where the applicant has received another type of payment for the injury, death or loss. This includes:
· an immediate payment the applicant was not entitled to receive;
· compensation or damages from the offender or on the offender’s behalf;
· private medical insurance;
· any other benefit, compensation, damages or award under any other statutory scheme (such as Centrelink payments or Work Health entitlements); or
· any agreement or insurance policy.

The reduction must be an amount equal to the payment received.

Clause 43. When financial assistance must not be awarded.

This clause sets out the situations where the assessor cannot make any award of financial assistance. These are similar to the situations set out in section 12 of the current scheme under the Crimes (Victims Assistance) Act. These are situations where:
· the assessor is satisfied the applicant is not entitled to an award;
· the violent act was not reported to a police officer within a reasonable time (unless the assessor is satisfied circumstances prevented it);
· the violent act was not reported to a police officer at all, unless the assessor is satisfied circumstances prevented the report being made;
· the applicant failed to assist police;
· the applicant made the application in collusion with the offender; or
· the injury or death occurred during the commission of a crime by the applicant.

Clause 44. Notice of decision.

This clause provides that, as soon as practicable after deciding the application, the assessor must notify the Director of the decision and include the following information:
· the total financial assistance awarded, including a breakdown of each type of assistance and the basis on which each amount is awarded;
· If the assessor has reduced an award, the amount by which the award has been reduced and the reason for the reduction;
· if the assessor has made an award to more than one secondary victim or family victim - details about the apportionment of financial assistance and the basis for each award;
· if the application was made by a person on behalf of the eligible victim – details about the payment of financial assistance and requirements, directed to the person, about the use or management (including by the creation of a trust) of the financial assistance;
· details of relevant appeal rights and procedures;
· any other information the assessor considers should be included or that is required by Regulation.

It is on offence for a person who has applied on a victim’s behalf to fail to comply with a direction made by the assessor as to the use or management of financial assistance. The maximum penalty for this offence is 100 penalty units. Currently under the Penalty Units Act, a penalty unit is $110.

A notice refusing to award financial assistance must include the following information:
· the reasons for the decision;
· if the assessor is satisfied the applicant received an immediate payment to which the applicant was not entitled – the operation of section 47 which provides for the refund of such amounts;
· details of relevant appeal rights and procedures;
· any other information the assessor considers should be included or that is required by regulation.

The Director must give a copy of the notice to the applicant and each offender named in the application, if practicable, and any other person who made a submission in relation to the application under clause 33(3).

Division 5 – Payments, increases and refunds of financial assistance

Clause 45. Payments of financial assistance.

This clause provides that the Territory must pay the victim the financial assistance specified in the notice under clause 44, within 28 days after the notice is given.

Clause 46. Increase of financial assistance.

This clause provides that a victim who has been paid financial assistance may apply to the Director for an increase in the award. The main purpose of this application is to allow victims whose injuries were more serious than first thought, to apply for additional financial assistance in relation to those injuries. This provision is necessary to ensure the administrative process is as speedy as possible. Assessors will not be deterred from deciding awards on the small chance that a particular victim’s injuries may worsen in the long term.

An application must be made no later than 3 years after the payment was made. If the victim was a child at the date of the payment, the application must be made no later than 3 years after the victim becomes an adult.

The application must include the reason why the increase is sought, the amount of financial assistance sought and any other information required by regulation and be accompanied by documents in support of the application.

The assessor must decide the application in accordance with the relevant provisions of Division 4. The assessor may only increase the award if satisfied the circumstances require it and if the relevant maximum amount of financial assistance has not already been awarded.

The applicant must be notified by the Director of the assessors decision to either award a further payment or not. The notice must include the reasons for the decision and details about the applicant’s right to appeal. If the award is increased, the notice must also specify the additional financial assistance and (where a person has applied on a victim’s behalf) details and requirements, if any, about the use and management of the additional financial assistance.

It is on offence for a person who has applied on a victim’s behalf to fail to comply with a direction or requirement of the assessor as to the use or management of financial assistance. The maximum penalty for this offence is 100 penalty units. Currently under the Penalty Units Act, a penalty unit is $110.

A further payment must also be paid within 28 days of the notice.

Clause 47. Refund of financial assistance.

This clause allows for an assessor to decide that a victim must refund all or part of their financial assistance, if the victim has received an award or payment they are not entitled to receive or if they received a further payment in relation to the violent act or injury, such as compensation from the offender.

The Director is to notify the victim of their requirement to refund an amount and, if practicable, give a copy to each offender named in the application.

An amount to be refunded becomes a debt due to the Territory.

Division 6 – Appeals

Clause 48. Decisions that may be appealed.

An applicant for an award may appeal to the Local Court under Part 37 of the Local Court Rules against any of the following decisions:
· a refusal by the Director to accept a late application, notified under clause 31(4);
· a decision by the assessor relating to an award notified under clause 44(5);
· a decision by the assessor relating to an increase in an award notified under clause 46(9);
· a decision of the assessor requiring a person to refund an amount to the Territory, notified under clause 47(3).

Clause 49. Nature of appeal.

This clause provides that appeals will be a review of the Director’s or assessor’s decision, as the case may be, on the merits. The Court may consider all the evidence that was before the decision-maker. Appeals are to be conducted with as little formality and technicality as possible and the Court is not bound by the rules of evidence.

The Court may admit new information and material as evidence only if the Court is satisfied there were special reasons that prevented its presentation to the original decision-maker.

Clause 50. Determination of appeal.

The Court will determine an appeal in accordance with the Act and the Regulations. The Court must consider the same provisions of the Act and Regulations and the decision maker.

Subclause (1) provides that, in determining an appeal against a decision by the Director to refuse to accept a late application, the Court may either confirm the Director’s decision or set it aside and refer it for a decision by an assessor under Division 4.

In determining any other appeal, the Court may confirm the decision, vary the decision or set aside the decision and substitute another decision.

Clause (4) provides that if the Court determines an appellant is not entitled to receive financial assistance awarded by the assessor, or awards the appellant less financial assistance than was awarded by the assessor, any amount of financial assistance paid to the appellant that should not have been paid is recoverable as a debt owing to the Territory.

Clause 51. Reservation of question of law.

This clause provides that the Local Court may reserve for the decision of the Supreme Court a question of law arising out of an appeal.

The decision of the Supreme Court is binding on the Local Court.

Costs consequent on the reservation for the Supreme Court's decision are in the discretion of the Supreme Court.

Clause 52. Operation and implementation of decision.

This clause provides that an appeal to the Local Court against a decision does not affect the operation or implementation of the decision. That is, the decision of the assessor or Director remains in place.

However, the Court may make an order staying or otherwise affecting the operation or implementation of so much of the decision as the Court considers appropriate. If such an order is made it is subject to the conditions specified in the order and has effect for the specified period. If there is no specified period in the notice, the order has effect until the Court has determined the appeal.

Clause 53. No appeal to Supreme Court.

This clause clarifies that a party to an appeal is not entitled to appeal to the Supreme Court against an order or determination of the Local Court.

Division 7 – Legal representation and costs

Clause 54. Applications.

As the application process and related forms for financial assistance will be greatly simplified there will no longer be the need for legal representation for applicants. Essentially, any reasonably literate person will be able to fill in an application form. If an applicant requires assistance, for example if he or she is unable to read English, they can seek the assistance of an interpreter or friend.

However, it is a victim’s right to be legally represented if they so wish. In recognition of the aim to shift funds from legal costs to victims services and financial assistance, a legal practitioner is not entitled to recover from the victim any costs, except the legal practitioner's disbursements (other than counsel fees), incurred in representing the person in relation to an application.

The Territory is not liable to pay any costs incurred by a person or legal practitioner in making an application.

Clause 55. Appeals

An appellant under Division 6 may be represented by a legal practitioner.

The Regulations may prescribe the costs allowable on an appeal. These will be set by reference to the Appendix to Order 63 of the Supreme Court Rules as the costs allowable for work done for an appeal.

The Regulations may provide for any other matter relevant to the costs of an appeal, including the Territory's liability for an appellant's costs and the way in which the Court may exercise its discretion in making an order for costs.

PART 5 – RECOVERY OF MONEY FROM OFFENDERS

Clause 56. Territory may recover from offender.

This clause provides that if the Territory has paid financial assistance to a victim, the Territory may commence a proceeding in the Court for recovery of an equal or lesser amount of money from the offender.

The Territory must commence the proceeding no later than 3 years after the payment of financial assistance to the victim.

In the proceeding, the Territory must prove to the satisfaction of the Court that:
· the Territory paid the money sought to be recovered; and
· the offender against whom the proceeding is brought was found guilty of an offence that resulted in the payment of the money, or, on the balance of probabilities, committed an offence that resulted in the payment.

The Court may reduce the amount sought to be recovered by the
Territory if:
· the offender satisfies the Court the victim contributed to the injury or death in respect of which the amount was paid; or
· the Court is satisfied the financial assistance awarded to the victim was excessive in the circumstances.

If the Court is satisfied that all or some of the financial assistance should not have been awarded, it may order that the Territory is not entitled to recover from the offender all or part of the amount paid by the Territory.

Clause 57. Recovery by set-off.

This clause allows the Territory, by order of the Local Court, to recover money from an offender by way of set-off. This would apply in cases where an offender under an earlier application for financial assistance is also eligible to apply as a victim for financial assistance in relation to another offence.

Clause 58. No appeal to Supreme Court.

A party to a proceeding relating to recovery from an offender is not entitled to appeal to the Supreme Court against any order of the Local Court.

Clause 59. Recovered money to be paid into fund.

Any money recovered by the Territory must be paid into the Victims Assistance Fund.

PART 6 – VICTIMS ASSISTANCE FUND AND LEVY

Clause 60. Victims Assistance Fund.

This clause establishes the Victims Assistance Fund. This fund is currently established under the Crimes (Victims Assistance) Act and is being continued in the same form under this Bill, with some minor technical changes.

The Fund consists of the following:
· money appropriated for the Fund to the Agency primarily responsible for the administration of this Act;
· money paid into the Fund under the levy;
· money recovered by the Territory under this Act;
· money paid into the Fund under any other Act.

The Fund moneys must be credited into a fund maintained within the Agency Operating Account within the meaning of the Financial Management Act.

Clause 61. Imposition of levy.

This clause provides for the imposition of a levy on the following persons (subject to exceptions specified in the regulations):
· a person who is found guilty of an offence but not imprisoned for the offence; or
· a person who expiates an offence by paying an amount specified in an infringement notice issued to the person; or
· against whom an enforcement order is made.

Where a person is found guilty of an offence, the levy is $60 for offences dealt with on indictment and $40 for any other offences. If the person is a child, the levy is only $20.

The levy must be recorded on the court file and in the notice of the finding of guilt given to the person.

A levy imposed on the finding of guilt is taken to be a fine or part of the fine ordered by the court and therefore may be enforced under the Fines and Penalties (Recovery) Act.

The levy under an infringement notice or enforcement order is $10.

Despite any other law in force in the Territory, a person on whom a levy is imposed under an infringement notice or enforcement order is only immune from prosecution for the relevant offence if both the penalty specified and the levy are paid.

Any money paid by a person on whom a levy is imposed under an infringement notice or enforcement order, must initially be paid towards the levy.

A court must not reduce a levy payable by a person or exonerate a person found guilty of an offence from liability to pay a levy.

PART 7 – MISCELLANEOUS MATTERS

Clause 62. Preservation of civil claim for damages.

This clause provides that the Act does not affect the right of a person to claim or recover compensation or damages under any other law. This means that a victim is able to take civil action against an offender for damages for the injury caused.

A court in which an action for damages under any other law is heard must not take into consideration that financial assistance has been or may be paid. However, clause 47 allows for the assessor to require a victim to refund all or part of an award of financial assistance if the victim later receives any type of compensation or damages from the offender or on the offender’s behalf.

Clause 63. Obstruction and providing false information.

This clause creates an offence of hindering or obstructing a person (such as an assessor) exercising a power or performing a function under the Act. A person must also not knowingly or recklessly provide false or misleading information, such as in their application for financial assistance.

The maximum penalty for this offence is 100 penalty units or 6 months imprisonment for a natural person and 500 penalty units for a body corporate. Currently under the Penalty Units Act, a penalty unit is $110.

Clause 64. Inadmissibility and use of information in proceedings.

This clause provides that an application for financial assistance, and any documents given to the Director or an assessor solely for the application are not admissible as evidence in any civil or criminal proceeding. This is to ensure that applicants will not be deterred from providing full and frank details in their applications for financial assistance. Any primary evidence, such as medical records or initial X-rays will still be able to be used as evidence in other proceedings.

However, this does not apply in certain circumstances such as the hearing of an appeal, criminal proceedings in which the applicant for financial assistant is the defendant, a proceeding for an offence against the Act or any other proceeding if the person to whom the document refers has consented to the use or production.

Clause 65. Guidelines.

This clause provides that the Minister may issue guidelines, consistent with this Act and the Regulations, relating to the performance of functions by the Director and assessors. These will guide the Director and assessors in making decisions under the Act.

The Director and assessors must have regard to the guidelines when performing their functions under the Act.

Clause 66. Approved forms.

The Director may approve forms for use under the Act.

Clause 67. Delegations.

This clause provides that the Minister and the Director may delegate their powers under the Act.

Clause 68. Protection from liability.

This clause protects the Director, an assessor and a counsellor from civil or criminal prosecution for any act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under the Act.

However, the Territory’s liability for the act or omission is not affected.

Clause 69. Regulations.

The Administrator may make Regulations, not inconsistent with
this Act, prescribing matters required or permitted by the Act or necessary or convenient for carrying out or giving effect to this Act.

Specifically, the Regulations may deal with any of the following:
· any matters in connection with the counselling scheme, including the exercise of discretions by the Director;
· any matters in connection with the financial assistance scheme, including the exercise of discretions by the Director or an assessor;
· procedures relating to medical examinations and reports ordered by an assessor and the costs and payments for those examinations and reports;
· the assessment of financial loss, including the method of calculating loss of earnings and the special circumstances in which an assessor may award financial assistance to assist a victim to recover from the effects of a violent act;
· awards for compensable injuries such as different awards for different categories of compensable injuries, procedures to establish whether a person has a compensable injury, the assessment of a standard amount for more than one compensable injury and the reduction of a standard amount;
· applications for increased awards;
· requirements for refunds of financial assistance.

Clause 70. Review after 3 years.

This clause requires a review of the operation of the first 3 years of the Act.

PART 8 – REPEALS AND TRANSITIONAL MATTERS FOR VICTIMS ASSISTANCE ACT 2006

Clause 71. Definitions.

This clause provides the definitions necessary for this Part.

Clause 72. Repeals.

This clause provides for the repeal of the current scheme under the Crimes (Victims Assistance) Act and the previous scheme under the Crimes Compensation Act 1982. All applications made after the commencement date are to be dealt with under the Crimes Victims Assistance Bill 2006, regardless of the date the offence occurred.

Clause 73. Repealed Act applies to application for assistance certificate.

The repealed Act continues to apply in relation to an application for an assistance certificate made before the commencement day.

Clause 74. Application of Act to violent act.

This Act applies to an application for counselling or financial assistance even if the violent act to which the application relates occurred before the commencement day.

Clause 75. Fund.

The Victims' Assistance Fund continues in force as the Fund.

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