Victims Compensation (Amendment) Bill

About this Item
Speakers - Hartcher Mr Chris
Business - Bill, First Reading, Second Reading

VICTIMS COMPENSATION (AMENDMENT) BILL

Bill received and read a first time.

Second Reading

Mr HARTCHER (Gosford - Minister for the Environment) [11.32]: I move:

That this bill be now read a second time.

I seek the leave of the House to have the second reading speech incorporated in Hansard.

Leave granted.

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The Victims Compensation (Amendment) Bill has resulted from a review of the implementation and administration of the Victims Compensation Act 1987. The Act commenced operation in February 1988. The aim of the tribunal is to ensure that victims of violent crime receive compensation in as prompt and sympathetic a manner as possible. While the tribunal has generally functioned well, concerns were expressed about the operations of both the Act and the tribunal and the nature of claims being made to the tribunal. To allow these concerns to be properly examined, I instigated the review which was undertaken by Mr Cec Brahe, the Deputy Chief Magistrate and former chairman of the tribunal.

The review was conducted with particular reference to: first, persons entitled to compensation; second, the nature and determination of compensation; third, the review of determinations; fourth, the payment of legal costs; fifth, the recovery of moneys from convicted offenders; and, sixth, the statistics and management of information maintained by the tribunal. In September 1992 an issues paper was released. Thirty-nine submissions were received in response from parties including the Law Society, the Bar Association, victims support groups, the Legal Aid Commission, the Chief Judge of the District Court, members of Parliament, community groups, women's groups, solicitors and legal centres, the Lesbian and Gay Legal Rights Service, the Sexual Assault Committee, the police, the Ethnic Affairs Commission, the Office of Aboriginal Affairs and the Youth Advisory Council.

It can be seen that there was comprehensive consultation with the community in the process of the review and subsequent drafting of the bill before the House today. To assist Mr Brahe in the conduct of his review the Attorney General requested the New South Wales Bureau of Crime Statistics and Research to analyse the pattern of victims' compensation claims, claimants and awards. The bureau's report on the profile of claims, claimants and awards was published in February 1993. Its findings about the nature of claims was considered in the Brahe review. In March 1993 the recommendations of the Brahe review were published and circulated to members of Parliament, interest groups and individuals.

The report included 28 recommendations of which 16 required legislative amendment. The proposed amendments to the Act recommended by Mr Brahe included provision to clarify the definition of "act of violence"; provision that a payment should be made on solatium rather than common law principles of compensation; that there should be changes to the appeal process; that there should be administrative assessment of non-contentious claims; and that there should be some limiting of claims by close relatives on the death of a victim. A recommendation for consequential administrative amendments to the Act was also made. Most of the recommendations of the Brahe review have been implemented in the bill which is before the House today. In the process of finalising the legislative proposals before the House, the Attorney General consulted further with government agencies such as the Ministry for the Status and Advancement of Women, the Ministry of Police, the Department of Corrective Services, the Office of Juvenile Justice and the Department of Courts Administration.

It is fair to say that the bill which is before the House today has been formulated as the result of an extremely wide-ranging consultation process. The bill takes into account the views expressed by members of the community in the course of that consultation. While crime continues in this State, with its terrible impact on victims, there will be a continuing need for the tribunal to make awards to genuine and deserving victims of crime. Payments to victims are made out of the Victims Compensation Fund. This fund is financed by Treasury and ultimately by the people of this State. This bill attempts to provide out of the fund for the competing needs of victims in the fairest and most equitable way. So that all genuine victims may receive adequate compensation it has been necessary to clarify the basis of compensation, to narrow the ambit of acts of violence qualifying for compensation and to increase the threshold for minimum awards by the tribunal. There has been some limiting of categories of claimants qualifying for compensation so that the most deserving victims of crime will not be prejudiced. The process for review of the tribunal's determinations has also been enhanced and guidelines provided to the courts on matters to be considered by them on appeal.

I now turn to the details of the bill. Item (3) of schedule 1, dealing with proposed section 3B, clarifies the nature of compensation payable under the Act, by providing that the basis of payment to a victim of violent crime is consolation. It is a formal acknowledgment on behalf of the Government and the community of the unjust infliction of injury and suffering on the victim. It is not possible to compensate a victim of crime to the extent that, say, a person claiming for injury under an insurance based scheme would be compensated on common law principles. Therefore, proposed section 3B clarifies that compensation under the Act is not meant to put the victim, so far as money will do, back into the same position the victim was in prior to the violent criminal act.

Clarification is required because the Act provides no guidance as to the correct application of principles for compensation. In the absence of guidance, there has been a discrepancy between legal opinions on the correct basis of assessment, and a variation of awards has arisen. With a limit of $50,000 for awards, common law principles cannot be properly and evenly applied. There are types of injury such as those which are not manifested at the time of determination, which cannot be compensated on common law principles.

The scheme also provides for compensation to secondary victims and dependants of a deceased victim. Their loss cannot be assessed on common law principles, and the nature of proceedings before the tribunal, which are inquisitional rather than adversarial, is also a factor against the application of common law principles.

Under the proposed amendments, assessments on a solatium basis will not be reduced. They will not be scaled down from the maximum award by reference to common law levels. There will be scope for the adoption of a set range of awards applicable to categories of injury. This will result in victims receiving predictable and equitable awards for compensation.

Items (1) and (2) of the bill, proposed sections 3 and 3A, provide for the redefinition of an act of violence giving rise to compensation. These items will ensure that victims of violent criminal acts receive a payment. It overcomes previous interpretations that the Act compensates injuries occurring in the course of the commission of non-violent offences. Proposed section 3A amends the definition of "act of violence" to apply only where there has been a violent criminal act. The new definition also includes certain offensive acts to cover instances of sexual assault and domestic violence so that victims of these crimes are not excluded from the ambit of the Act by the redefinition of "act of violence". In the other place, the meaning of offensive conduct was also extended to include instances of kidnapping and child stealing. The Government supported this extension.

Proposed section 3A(3) clarifies the nature of a related act. Together with items (9) and (10), proposed sections 18 and 19 of the Act will provide that where more than one offence has occurred during the course of a continuing relationship between the victim and the offender, the victim will be eligible to make only one claim for compensation. This overcomes arguments that in such circumstances a victim may receive an award in respect of every single act of violence occurring during a series of acts of violence, resulting in total awards way above the $50,000 maximum. It was never intended by the architects of the scheme that a victim in this circumstance would receive an award for each act of violence. However, under the operation of proposed

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sections 18 and 19 a victim will be able to make a fresh application covering acts of violence occurring subsequent to an earlier application. As the tribunal makes its determination on an assessment of injuries, the tribunal ,in assessing the level of compensation to be awarded where there is a claim for related acts of violence, will consider injury arising from all acts of violence covered by each claim. Once again, I must remind honourable members that compensation is paid largely from the public purse and it is necessary to provide some limitations on payments so that all victims of serious crime may receive compensation.

Proposed sections 3(b1) and 15 provide for compensation of a primary victim of sexual assault for a new category of injury being psychological trauma. In some cases victims of sexual assault will not be able to establish physical injury. The new sections overcome the requirement for these sexual assault victims to prove physical injury, mental disorder or nervous shock. The object of item (6), proposed section 15(6), is to exclude all motor accident victims from compensation. It is inappropriate for motor vehicle victims falling below the threshold for compensation under the Motor Accidents Act 1988 to obtain compensation as victims of crime. Item (7), proposed section 16(5), provides for maximum compensation for loss of earnings in accordance with section 37 of the Workers Compensation Act 1987. This will provide a new upper limit for such compensation but will allow a worker and his or her family to live with dignity during the period of incapacity to work. It is entirely appropriate for the level of compensation in such a case to be in keeping with amounts provided under the workers' compensation regime.

Item (8), proposed section 17(2), provides non-exhaustive guidelines to the Victims Compensation Tribunal in considering the lodgment of out of time applications. The Brahe review recommended that the two-year limitation period for lodgment of claims be maintained. It also recommended the criteria at item (8) for the exercise of the tribunal's discretion in relation to out of time claims. In providing such guidelines, the processing of these claims will be clarified to the benefit of genuine victims seeking to make late claims. The circumstances the WorkCover the tribunal will have regard will include those surrounding child and adult victims of sexual assault.

The amendment of item (11), proposed section 19 of the Act, is for a new threshold of $4,000 or such other amount as may from time to time be fixed by proclamation. The current threshold for claims at section 19 of the Act is $200. There has been no increase in the threshold since the Act was introduced in 1987. There are many small claims made to the tribunal by claimants injured in the course of employment. They seek compensation that is not available under the workers' compensation regime because of the operation of higher thresholds for claims, or in order to supplement awards made under that regime. The bulk of claims at below $4,000 are for bruising and lacerations which are often the result of brawls. In some jurisdictions such as Great Britain, bruising and lacerations are not compensable unless connected with other injuries. There is also much greater scope for dishonest claims at the small end of the spectrum. The smaller, trivial claims occupy a disproportionate amount of the Victims Compensation Tribunal's administrative time and costs. In some cases, the legal costs incurred in a small claim will outweigh the award. This is to the disadvantage of those with serious injuries caused by acts of violence.

Significant thresholds operate in workers' compensation and motor vehicle compensation schemes and it is appropriate that a significant threshold should also operate in relation to the Victims Compensation Act in order to achieve an equitable allocation of funds to victims. Submissions in the course of the Brahe review supported a range of increases in the threshold. We must again bear in mind that the object of the Act is to compensate victims of violent crime. This compensation is made by the Government from limited funds and it is only fair that payments go to those suffering serious injuries resulting from violent crime. The proposed threshold is realistic and fair. Those victims with claims falling below the threshold will still be able to take action through the courts to obtain directions for compensation out of the property of offenders under part 6 of the Act. At items (46) and (48), sections 53 and 61 of the Act are amended to provide that these directions may be made on a finding of guilt rather than the conviction of an offender.

Item (12), proposed section 20(3), provides matters which the tribunal may take into account when considering the element of late reporting to the police for the purpose of reducing an award. The Brahe review found that in most cases victims reported cases to the police on the date of an act of violence. However, certain victims including children and the intellectually impaired rely on the actions of others in the community to make a report. They often make late reports. The object of this item is to overcome any disadvantage suffered by these victims in the assessment of their claims. In the other place, the Government supported amendments to provide for the inclusion of physical impairment as a matter for consideration and delays in reporting caused by representations by the police that a victim's complaint should be withdrawn. Item (13), proposed section 21A, is framed to provide that where a claimant for compensation in one case is the offender in another application for compensation before the tribunal, any restitution order against a claimant as offender may be set off against the award to that claimant as a victim.

Items (14) and (43), new section 24A, provide that costs payable in respect of an application will be as set out in the regulations to the Act. These will include legal costs and medical expenses. The tribunal will be able to award in excess of the regulations in special circumstances. The section will also provide the tribunal with the power to complain to relevant professional bodies where medical expenses charged are excessive. The bill enhances the rights of victims to review of tribunal determinations. Under proposed section 24B the tribunal is given a limited power to review its decisions in cases where additional evidence, for example a medical report, becomes available after the tribunal's determination has been made. This provision will save the applicant from having to lodge an appeal in order to have the fresh material considered.

The appeal procedure from the tribunal to the District Court is clarified at proposed section 29, item (20) of the bill. The time for lodgment of an appeal is extended to three months. Proposed sections 29(2B) and (2C) provide that appeals to the District Court shall be heard on a rehearing basis and not a de novo basis. That is, matters will not be heard anew by the District Court. The result will be that in hearing an appeal the court will rely on the evidence adduced to the tribunal. The court may consider further evidence only if the special circumstances of the case warrant it. This will streamline the appeal process for victims, as their cases will not need to be run afresh when appealed to the District Court. The District Court will consider all evidence adduced to the tribunal plus any fresh evidence and will make its determination as to the correct application of the Act to the facts of the case. It will save the victim the legal and medical expenses associated in running a case afresh, not to mention the time and trauma involved in such proceedings.

Appeals to the District Court will not lie on the tribunal's refusal to allow lodgment of a claim outside the two-year limitation period provided at section 17, or the tribunal's refusal to reconsider a determination pursuant to proposed section 24B. These decisions are administrative acts. However, when taken in the context of the proposals which I have outlined for proposed section 17(2) providing for the exercise of the tribunal's discretion in accepting out of the claims, it is clear that victim's rights are not impeded by this amendment. As in other jurisdictions, the victim's right to appeal to the Supreme Court in its supervisory capacity to remedy cases where the tribunal errs in its administrative decisions will remain open.

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By item (21) of schedule 1, dealing with proposed section 29A, the bill provides for costs to be payable in respect of appeal proceedings in accordance with the regulations. The same provisions regulating costs on a determination will apply to costs on appeal to the District Court. Items (22) to (26) of schedule 1 to the bill will establish a procedure for administrative assessment of non-contentious claims.

The Brahe review recommended that, as the majority of applications are non-contentious they should be determined administratively with a right of review from that determination. Proposed section 18(A) sets out the criteria for administrative assessment, including that the likely award will not exceed $7,000. Therefore, only smaller and non-contentious claims will be determined administratively. Applicants dissatisfied with an administrative assessment will have the right to have their claims determined by the tribunal. This is in addition to the provisions for redetermination by the tribunal and appeal to the District Court.

The bill provides some amendments limiting categories of claimants. Items (27) to (34) of schedule 1, including proposed section 3, limit the definition of "close relative" for the purposes of compensation in the case of a deceased victim, to dependants of the deceased. This is in keeping with victims' compensation regimes in other States, such as Victoria. It is necessary to provide this limit to claims under the Act in conformity with the principle that compensation is made on a consolation basis only. It is also part of the general emphasis in this bill on the allocation of funds so that the victims of crimes themselves are compensated by the Government on behalf of the community.

Item (35) of schedule 1 to the bill will amend section 10 of the Act relating to compensation to secondary victims. This has been an area of abuse by claimants in the past. The amendments have been framed to provide that a secondary victim must prove sudden sensory perception of the act of violence, or the actual physical harm or the death of a primary victim arising from the act of violence. The intention is to exclude claims by secondary victims for mental disorder arising from a primary victim's mental disorder. The object of proposed section 10(2) is to provide that where a secondary victim is the parent or guardian of a child primary victim, and did not contribute to the child's injuries, the secondary victim does not have to prove the elements of sudden sensory perception of the child's injury in order to be entitled to compensation.

Items (36) to (41) of schedule 1 to the bill will improve the process of recovery of money from offenders. This Government is committed to obtaining contributions from offenders to assist victims of crime. The Act currently provides for a recovery procedure in cases where a person has been convicted of an offence arising from substantially the same facts as those resulting in a previous award to a victim. Proposed sections 42A and 42B will provide an additional process whereby the tribunal may institute proceedings for recovery against an offender at the same time as making an award in favour of a victim. The bill also provides that in the event that a victim has lodged an appeal in relation to an award, a fresh recovery determination may be made so that there can be no shortfall in awards and determinations for restitution.

Proposed section 47(5) will provide for joint and several liability in determinations made against two or more offenders in respect of the same award for compensation. These amendments will improve the process by which the tribunal recovers money from offenders. It is part of this Government's policy of ensuring that offenders contribute to the assistance of their victims. Item (51) of schedule 1, dealing with proposed section 65C(1)(a) and (b), provides for increases in compensation levies payable by offenders. Items (53) and (61) of schedule 1 will provide that compensation levies may be made on a finding of guilt rather than a conviction. However, proposed section 65C(2A) will provide that the levy applies to juveniles only at the discretion of the court. Once again, these amendments are in keeping with this Government's commitment to victims of violent crime and its principle that offenders must contribute to the welfare of such victims.

Finally, item (42) of schedule 1 will insert a proposed new section 2A of the Act which will outline the objectives of the Victims Compensation Act, including provision that compensation for victims of violent crime is made on a consolation or solatium basis, the principle of recovery of compensation of payments from offenders and the payment by offenders of a compensation levy. The objects clause is a restatement of this Government's commitment to the many innocent victims of violent crime in the State. In conclusion, the Victims Compensation (Amendment) Bill is a detailed vehicle for improvement of the regime of victims' compensation in this State. It features a fine balance between the competing needs of victims of crime. It has been necessary in some cases to limit categories of claimants and in some cases expand the categories of claimants. Nevertheless, the bill provides for compensation for victims by way of consolation.

Unfortunately, it is not possible to compensate out of the public purse every victim of every offence. It is necessary to provide some limitations on payments so that victims may receive adequate compensation. It is necessary to rationalise and in some cases place limitations on the extent of compensation available to victims from government funds ultimately provided by the people of this State. This is so that those victims suffering serious injury as a result of violent crime may be compensated in the fairest possible way. This bill also contains a restatement of the Government's policy that offenders will contribute to the welfare of their unfortunate victims. The bill does not and cannot eliminate all crime and suffering; however, it will provide the best possible redress on behalf of the community to those suffering from the effects of violent crime. I commend the bill.

Debate adjourned on motion by Mr Whelan.

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