Victims of Crime Assistance (Amendment) Act 2000

i Victims of Crime Assistance (Amendment) Act 2000 Act No. 54/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Principal Act 2 PART 2—AMENDMENT OF PRINCIPAL ACT 3 4. New section 1 substituted 3 1. Purpose and objectives of Act 3 5. Definitions, etc. 4 6. Assistance available to primary victims 5 7. New section 8A inserted 5 8A. Special financial assistance to primary victims for significant adverse effects 5 8. New section 10A inserted 8 10A. Additional assistance available to certain secondary victims 8 9. Assistance available to related victims 10 10. Effect of other entitlements 11 11. New section 27A inserted 11 27A. Information to be given by related victim applicants 11 12. Duty to act fairly and expeditiously 12 13. Procedure of Tribunal 13 14. Power to adjourn 13 15. New section 42A inserted 13 42A. Inspection of documents 13 16. Publication of material 14 17. Costs 14 18. Variation of award 14 19. Minor amendments 15 20. New section 77 inserted 15 77. Transitional provisions (Victims of Crime Assistance (Amendment) Act 2000) 15 PART 3—AMENDMENT OF SENTENCING ACT 1991 20 -- 1 of 36 -- Section Page ii 21. New Subdivision (1) inserted in Division 2 of Part 4 20 Subdivision (1)—Compensation for pain and suffering etc. 20 85A. Definitions 20 85B. Compensation order 21 85C. Application for compensation order 22 85D. Extension of time for making application 23 85E. Proceeding on an application 24 85F. Court must not refuse to hear and determine application except in certain circumstances 24 85G. Evidence 25 85H. Court may take financial circumstances of offender into account 26 85I. Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996 27 85J. Court to give reasons for its decision 27 85K. Costs of proceeding 27 85L. Right to bring civil proceedings unaffected 27 85M. Enforcement of order 28 Subdivision (2)—Compensation for property loss 28 22. Minor amendments 28 23. Recovery of assistance paid under Victims of Crime Assistance Act 1996 29 24. New section 123 inserted 29 123. Transitional provisions—Victims of Crime Assistance (Amendment) Act 2000 30 25. Consequential amendments 30 26. New section 252E inserted in Accident Compensation Act 1985 32 252E. Supreme Court—limitation of jurisdiction 32 27. New section 132C inserted in Transport Accident Act 1986 32 132C. Supreme Court—limitation of jurisdiction 33 ═══════════════ ENDNOTES 34 -- 2 of 36 -- 1 Victims of Crime Assistance (Amendment) Act 2000 † [Assented to 12 September 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Victims of Crime Assistance Act 1996 to enable primary victims of acts of violence to be given a monetary award for significant adverse effects experienced or suffered by them and to increase the amounts Victoria No. 54 of 2000 -- 3 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 2 that may be awarded to secondary and related victims in certain circumstances; (b) to amend the Sentencing Act 1991 to reform the process by which victims may recover compensation from defendants in criminal proceedings without having to commence civil proceedings. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day to be proclaimed. (2) If this Act does not come into operation before 1 January 2001, it comes into operation on that day. 3. Principal Act In this Act, the Victims of Crime Assistance Act 1996 is called the Principal Act. _______________ s. 2 No. 81/1996. Reprint No. 1 as at 1 August 1997. Further amended by Nos 46/1998, 52/1998 and 12/1999. -- 4 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 3 PART 2—AMENDMENT OF PRINCIPAL ACT 4. New section 1 substituted For section 1 of the Principal Act substitute— "1. Purpose and objectives of Act (1) The purpose of this Act is to provide assistance to victims of crime. (2) The objectives of this Act are— (a) to assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and (b) to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime; and (c) to allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources. (3) Awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise. s. 4 -- 5 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 4 (4) The scheme provided by this Act is intended to complement other services provided by government to victims of crime.". 5. Definitions, etc. (1) In section 3(1) of the Principal Act— (a) in paragraph (b) of the definition of "injury", after "disorder" insert "or an exacerbation of a mental illness or disorder"; (b) after the definition of "relevant offence" insert— ' "significant adverse effect", in relation to a victim of an act of violence, includes any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence but does not include any loss of, or damage to, property;'. (2) In section 3 of the Principal Act, after sub-section (2) insert— '(3) For the purposes of section 8A— (a) references in this Act to a primary victim must be construed as including a reference to a person who is a primary victim by virtue of section 8A(1); and (b) references in this Act (including the definition of "significant adverse effect" in sub-section (1)) to an act of violence must be construed as if a person who is a primary victim by virtue of section 8A(1) had suffered an injury; and (c) references in this Act to an injury must be construed in relation to a person who is a primary victim by virtue of section s. 5 -- 6 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 5 8A(1) as if the significant adverse effect experienced or suffered by that person were an injury suffered by that person.'. 6. Assistance available to primary victims In section 8(1) of the Principal Act, after "$60 000" insert "plus any special financial assistance awarded in accordance with section 8A". 7. New section 8A inserted After section 8 of the Principal Act insert— "8A. Special financial assistance to primary victims for significant adverse effects (1) Without limiting persons who are primary victims by virtue of section 7, for the purposes of this section a person is also a primary victim of an act of violence if he or she experiences or suffers any significant adverse effect as a direct result of an act of violence committed against him or her. (2) A person may be awarded special financial assistance by the Tribunal in accordance with this section if the Tribunal is satisfied that— (a) an act of violence was committed against the person; and (b) the person has experienced or suffered a significant adverse effect as a direct result of that act of violence; and (c) that act of violence is a category A, B, C or D act of violence for the purposes of this section. s. 6 -- 7 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 6 (3) The amount of special financial assistance that may be awarded by the Tribunal in accordance with this section is an amount up to the level set out in sub-section (4). (4) For the purposes of sub-section (3) the level is— (a) the minimum amount set out in the Table in sub-section (5) in relation to the relevant category of act of violence if the Tribunal is satisfied that the applicant has experienced or suffered any significant adverse effect as a direct result of the act of violence; and (b) an increased amount up to the maximum amount set out in that Table in relation to the relevant category of act of violence if the Tribunal is satisfied that the applicant has suffered any injury as defined in section 3(1) as a direct result of the act of violence. (5) The following Table sets out the minimum and maximum amounts of special financial assistance that may be awarded in accordance with this section depending on the category of the act of violence involved: Category of act of violence Minimum amount Maximum amount A $3500 or the higher prescribed amount applicable in prescribed circumstances $7500 or the higher prescribed amount applicable in prescribed circumstances s. 7 -- 8 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 7 Category of act of violence Minimum amount Maximum amount B $1000 or the higher prescribed amount applicable in prescribed circumstances $2500 or the higher prescribed amount applicable in prescribed circumstances C $500 or the higher prescribed amount applicable in prescribed circumstances $1000 or the higher prescribed amount applicable in prescribed circumstances D $100 or the higher prescribed amount applicable in prescribed circumstances $500 or the higher prescribed amount applicable in prescribed circumstances (6) For the purposes of this section the regulations may— (a) specify an act of violence or a class of act of violence as a category A, B, C or D act of violence; and (b) prescribe a higher minimum or maximum amount in relation to a specified category of act of violence; and (c) prescribe circumstances in which the prescribed higher minimum or maximum amount is applicable. (7) The Tribunal may be satisfied on the balance of probabilities that an act of violence of a s. 7 -- 9 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 8 particular category was involved even though— (a) no person has been charged with, or found guilty or convicted of, an act of violence of that category in relation to the injury; or (b) a person has been charged with, or found guilty or convicted of, an act of violence of a different category in relation to the injury.". 8. New section 10A inserted After section 10 of the Principal Act insert— '10A. Additional assistance available to certain secondary victims (1) In exceptional circumstances and within the limit set by section 10(1), there may also be included in the amount awarded to a person— (a) who is a secondary victim by virtue of section 9(1); and (b) of whom the primary victim of the act of violence is a family member; and (c) who was under the age of 18 years at the time of the commission of the act of violence— an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the secondary victim to assist his or her recovery from witnessing the act of violence. (2) In exceptional circumstances and within the limit set by section 10(1), there may also be included in the amount awarded to a person who is a secondary victim by virtue of s. 8 -- 10 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 9 section 9(2) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the secondary victim to assist his or her recovery from becoming aware of the act of violence. (3) In this section "family member", in relation to a person, means— (a) the spouse, former spouse or de facto spouse of that person; or (b) a person who is or has been a relative of that person; or (c) a child who normally or regularly resides with that person; or (d) another person who is or has been ordinarily a member of the household of that person. (4) For the purposes of the definition of "family member" in sub-section (3)— (a) a de facto spouse, in relation to a person, means a person who is living or has lived with another person as if the other person were the spouse of that person although not married to that person; and (b) a relative, in relation to a person, means— (i) a father, mother, grandfather, grandmother, step-father, step- mother, father-in-law or mother- in-law of that person; or (ii) a son, daughter, grandson, granddaughter, step-son, step- daughter, son-in-law or daughter- in-law of that person; or s. 8 -- 11 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 10 (iii) a brother, sister, half-brother, half- sister, brother-in-law or sister-in- law of that person; or (iv) an uncle, aunt, uncle-in-law or aunt-in-law of that person; or (v) a nephew or niece of that person; or (vi) a cousin of that person— and includes, in the case of de facto spouses, a person who would be such a relative if the de facto spouses were married to each other.'. 9. Assistance available to related victims (1) In section 12 of the Principal Act, at the end of the section insert— "(2) Despite anything to the contrary in this Act, in exceptional circumstances a related victim may be awarded assistance by the Tribunal despite that award of assistance causing the limit set by sub-section (1) to be exceeded.". (2) In section 13 of the Principal Act, after sub- section (3) insert— "(4) In exceptional circumstances, there may also be included in the amount awarded to a related victim within the limit set by sub- section (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the related victim to assist his or her recovery from the death of the primary victim of the act of violence.". (3) Section 14 of the Principal Act is repealed. (4) In section 52 of the Principal Act, paragraph (d) is repealed. s. 9 -- 12 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 11 10. Effect of other entitlements In section 16 of the Principal Act— (a) for "whether or not to make an award or the amount of any award to be made" substitute "the amount (if any) to be awarded to an applicant"; and (b) in paragraph (a), for "must take into account" substitute "subject to paragraph (ab), must take into account and reduce the amount by the total amount of"; and (c) after paragraph (a) insert— "(ab) in the case of special financial assistance under section 8A or an amount under section 13(2)(c), must not take into account any payments under any insurance policy (including life and health insurance) or superannuation scheme that the applicant has received or has not received but is entitled to receive, or would be entitled to receive if he or she applied for them, for the loss, expense or other matter for which assistance is sought from the Tribunal; and"; (d) in paragraph (b), for "may take into account" substitute "in all cases but subject to paragraph (ab), may take into account and reduce the amount by the total amount of". 11. New section 27A inserted After section 27 of the Principal Act insert— "27A. Information to be given by related victim applicants s. 10 -- 13 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 12 (1) An applicant who is a related victim must set out in the application details of— (a) every other person whom the applicant believes may be a related victim of the act of violence; and (b) every other person whom the applicant believes may allege that he or she is a related victim of the act of violence; and (c) any person whom the applicant believes may apply in accordance with Division 4 of Part 2. (2) It is sufficient compliance with sub-section (1) if, in circumstances in which the applicant knows of the existence of a person or class of persons of whom he or she would be required to give details under that sub- section but does not know their name or address, the applicant sets out in the application all matters within his or her knowledge that may enable the Tribunal to ascertain their name and address.". 12. Duty to act fairly and expeditiously In section 32 of the Principal Act, at the end of the section insert— "(2) The Tribunal must endeavour to hear and determine together all applications made by related victims of any one act of violence. (3) The Tribunal is not prevented from hearing and determining an application only because there is a civil proceeding, or a proceeding under Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991, pending in a court relevant to the matter. s. 12 -- 14 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 13 (4) Nothing in sub-section (3) limits the power of the Tribunal under section 41(1) to order an adjournment of the consideration of an application.". 13. Procedure of Tribunal In section 38(2) of the Principal Act, after paragraph (a) insert— "(ab) where relevant, the category of act of violence that it was satisfied under section 8A was involved; and". 14. Power to adjourn In section 41(2) of the Principal Act— (a) omit "commence or could"; (b) after "applicant" insert "and which are reasonably likely to be determined within the next 6 months". 15. New section 42A inserted After section 42 of the Principal Act insert— "42A. Inspection of documents (1) When the office of the Tribunal is open, the applicant in the proceeding and, on payment of the prescribed fee (if any) any other person, may inspect and obtain a copy of any document filed in a proceeding in the Tribunal. (2) Despite sub-section (1)— (a) a person may not inspect or obtain a copy of a document which the Tribunal has ordered remain confidential; (b) a person, not being the applicant in the proceeding, may not, without the leave of the Tribunal, inspect or obtain a s. 13 -- 15 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 14 copy of a document which in the opinion of a registrar of the Tribunal ought to remain confidential. (3) The Tribunal may, if satisfied that it is in the public interest to do so, order that— (a) a document filed in a proceeding in the Tribunal remain confidential; or (b) a person have leave to inspect or obtain a copy of a document filed in a proceeding in the Tribunal. (4) An order under this section may be made on the application of a party or on the Tribunal's own initiative.". 16. Publication of material (1) In section 43(1) of the Principal Act, for "must not be published except" substitute "be published". (2) In section 43 of the Principal Act, for sub-section (3) substitute— "(3) Except in accordance with an order under this section, a person must not publish or cause to be published any material referred to in sub-section (1). Penalty: 500 penalty units in the case of a body corporate; 100 penalty units or imprisonment for 2 years in any other case.". 17. Costs Section 48(3) of the Principal Act is repealed. 18. Variation of award (1) In section 60(1) of the Principal Act, after "made" insert "(including an award of special financial assistance made in accordance with section 8A)". s. 16 -- 16 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 15 (2) In section 60(2) of the Principal Act, for "is still under 18 years of age at the end of that period of 6 years in which case an application may be made at any time up until he or she turns 18" substitute "was under 18 years of age when the original award was made in which case an application may be made at any time up until he or she turns 24". 19. Minor amendments (1) Section 6 of the Principal Act is repealed. (2) Section 30 of the Principal Act is repealed. (3) Sections 73, 74 and 75 of the Principal Act are repealed. 20. New section 77 inserted After section 76 of the Principal Act insert— '77. Transitional provisions (Victims of Crime Assistance (Amendment) Act 2000) (1) Subject to this section, the amendments of this Act made by Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 (except sections 15, 16 and 18(2) of that Act) apply only with respect to acts of violence occurring on or after 1 July 2000 and applications and awards made in respect of such acts of violence. (2) The amendments of this Act made by sections 15, 16 and 18(2) of the Victims of Crime Assistance (Amendment) Act 2000 apply to applications and awards made under this Act in respect of acts of violence, whether occurring before or on or after 1 July 2000. (3) The amendments of this Act made by Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 apply with respect s. 19 -- 17 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 16 to acts of violence occurring before 1 July 2000 and applications and awards made in respect of such acts of violence where— (a) the act of violence involved the commission of an offence referred to in paragraph (b) of the definition of "relevant offence" in section 3(1) of this Act; and (b) a primary victim of the act of violence was under the age of 18 years at the time of the commission of that act; and (c) the application to the Tribunal is made by or on behalf of a primary victim of a kind referred to in paragraph (b); and (d) the act of violence occurred— (i) on or after 1 July 1997; or (ii) at any time before 1 July 2000 if a person has been (on or after 1 July 1997) committed, or directly presented, for trial on a charge for a relevant offence of a kind referred to in paragraph (a) committed against the applicant, irrespective of the outcome of that process; and (e) the applicant had not made an application under the former Act within the meaning of Schedule 1 or any corresponding previous enactment in respect of the injury before the commencement day within the meaning of that Schedule; and (f) the application is made in accordance with sub-section (4). s. 20 -- 18 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 17 (4) For the purposes of sub-section (3) an application— (a) may be made in any case at any time before 1 July 2002 or, where sub- section (3)(d)(ii) applies, at any time within 2 years after the person is committed or presented for trial (if that period ends on or after 1 July 2002) and, despite anything to the contrary in section 29, such an application is not out of time within the meaning of that section despite it not being made within 2 years after the occurrence of the act of violence; (b) subject to section 29, may be made in any case at any time after 1 July 2002. (5) For the purposes of sub-sections (3) and (4)— (a) if an act of violence occurs between two dates, one before and one on or after 1 July 1997, the act of violence occurs on or after 1 July 1997; (b) if an offence involved in the act of violence is alleged to have been committed between two dates, and the primary victim of the act of violence was under the age of 18 years at any time during the period between those dates, the primary victim must be taken to have been under the age of 18 years at the time of the commission of that act. (6) If— s. 20 -- 19 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 18 (a) an application is made under this Act before the commencement of Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 in respect of an act of violence to which the amendments of this Act made by that Part apply by virtue of sub-section (3); and (b) the application had been finally determined before that commencement— the award of assistance made must, on an application under section 60 made in accordance with sub-section (7), be varied to make it consistent with the award that would have been made in accordance with this Act as amended by that Part if the application had not been finally determined before that commencement. (7) Despite anything to the contrary in section 60, for the purposes of sub-section (6) an application for variation may be made at any time when an application could be made in respect of the act of violence by virtue of sub-sections (3) and (4) (disregarding paragraph (e) of sub-section (3) for this purpose). (8) If— (a) Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 does not come into operation until after 1 July 2000; and (b) an application is made under this Act before the commencement of that Part in respect of an act of violence that occurred on or after 1 July 2000; and s. 20 -- 20 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 19 (c) the application had not been finally determined as at that commencement— the application must be dealt with and determined after that commencement in accordance with this Act as amended by that Part. (9) If— (a) Part 2 of the Victims of Crime Assistance (Amendment) Act 2000 does not come into operation until after 1 July 2000; and (b) an application is made under this Act before the commencement of that Part in respect of an act of violence that occurred on or after 1 July 2000; and (c) the application had been finally determined before that commencement— the award of assistance made must, on an application under section 60, be varied to make it consistent with the award that would have been made as provided by sub-section (8) if the application had not been finally determined before that commencement. (10) For the purposes of this section, if an act of violence occurs between two dates, one before and one on or after 1 July 2000, the act of violence occurs on or after 1 July 2000.'. _______________ s. 20 -- 21 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 20 PART 3—AMENDMENT OF SENTENCING ACT 1991 21. New Subdivision (1) inserted in Division 2 of Part 4 Before section 86 of the Sentencing Act 1991 insert— 'Subdivision (1)—Compensation for pain and suffering etc. 85A. Definitions (1) In this Subdivision— "compensation order" means an order under section 85B(1); "injury" means— (a) actual physical bodily harm; or (b) mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or (c) pregnancy; or (d) grief, distress or trauma or other significant adverse effect; or (e) any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence— but does not include injury arising from loss of or damage to property; "medical expenses" includes dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses; s. 21 No. 49/1991. Reprint No. 5 as at 1 January 2000. Further amended by No. 1/2000. -- 22 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 21 "sexual offence" means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence. (2) References in this Subdivision to the victim of an offence must be construed having regard to the definition of "injury" in sub- section (1). 85B. Compensation order (1) If a court— (a) finds a person guilty of an offence; or (b) convicts a person of an offence— it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2). (2) A compensation order may be made up of amounts— (a) for pain and suffering experienced by the victim as a direct result of the offence; (b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence; (c) for some or all of any medical expenses actually and reasonably incurred, or s. 21 -- 23 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 22 reasonably likely to be incurred, by the victim as a direct result of the offence; (d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property. (3) In sub-section (2) "offence" includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample count, any other occurrence of the same offence involved in the course of conduct of which the count charged was representative or a sample. (4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable. 85C. Application for compensation order (1) An application for a compensation order— (a) must be made within 12 months after the offender is found guilty, or convicted, of the offence; and (b) may be made— (i) by the victim; or (ii) on the victim's behalf by any person other than the offender if the victim is a child or is incapable of making the application by reason of injury, s. 21 -- 24 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 23 disease, senility, illness or physical or mental impairment; or (iii) on the victim's behalf— (A) if the sentencing court was a court other than the Magistrates' Court, by the Director of Public Prosecutions; or (B) if the sentencing court was the Magistrates' Court, by the Director of Public Prosecutions, the informant or police prosecutor. (2) Nothing in sub-section (1)(b)(iii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a victim. 85D. Extension of time for making application (1) A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so. (2) A court may extend time under sub-section (1) before or after the time expires and whether or not an application for an extension is made before the time expires. (3) A court must not extend time under sub- section (1) without giving the offender a reasonable opportunity to be heard on the matter. s. 21 -- 25 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 24 85E. Proceeding on an application (1) In a proceeding on an application for a compensation order a party— (a) may appear personally; or (b) may be represented by— (i) a legal practitioner; or (ii) with the leave of the court, by any other person. (2) A proceeding in a court on an application for a compensation order made by or on behalf of a child or other incapable person must be taken to be a civil proceeding for the purpose of any provision of an Act or rule of court relating to— (a) the appointment or removal, and the power or authority, of a litigation guardian in a civil proceeding in that court; or (b) the administration of money ordered to be paid to a child or such an incapable person— and any such provision applies in relation to a proceeding on an application for a compensation order with any necessary modifications. 85F. Court must not refuse to hear and determine application except in certain circumstances (1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from— s. 21 -- 26 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 25 (a) evidence given at the hearing of the charge; or (b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or (c) the available documents— together with admissions made by or on behalf of any person in connection with the application. (2) In sub-section (1)(c) "the available documents" means— (a) any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or (b) the depositions taken at the committal proceeding; or (c) any written statements or admissions used as evidence in the committal proceeding; or (d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it. 85G. Evidence (1) On an application for a compensation order— (a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and s. 21 -- 27 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 26 (b) the victim, offender or other person who gives evidence may be cross- examined and re-examined; and (c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and (d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and (e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section. (2) A court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order. 85H. Court may take financial circumstances of offender into account (1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. (2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender. s. 21 -- 28 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 27 85I. Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996 If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision. 85J. Court to give reasons for its decision (1) On deciding to grant or refuse an application for a compensation order or to refuse to hear and determine such an application, the court must— (a) state in writing the reasons for its decision; and (b) cause those reasons to be entered in the records of the court. (2) The failure of a court to comply with sub- section (1) does not invalidate the decision made by it on the application. 85K. Costs of proceeding Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines. 85L. Right to bring civil proceedings unaffected Nothing in this Subdivision takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or s. 21 -- 29 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 28 recovery of compensation under this Subdivision. 85M. Enforcement of order Subject to section 30 of the Confiscation Act 1997, a compensation order, including costs ordered to be paid by the offender on the proceeding for that order, must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made. Subdivision (2)—Compensation for property loss.'. 22. Minor amendments (1) In the definition of "victim" in section 3(1) of the Sentencing Act 1991, after "damage" (where first occurring) insert "(including grief, distress, trauma or other significant adverse effect)". (2) In section 86 of the Sentencing Act 1991— (a) in sub-section (1) omit— (i) "or pain and suffering"; and (ii) "or for the pain and suffering"; (b) in sub-section (5)(a), omit "(and, in the case of an application for compensation for pain and suffering, no later than 6 months)"; (c) sub-section (6A) is repealed; (d) in sub-section (9)(d), omit ", including any medical report attached to it"; s. 22 -- 30 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 29 (e) sub-sections (9A), (9B) and (9C) are repealed; (f) in sub-section (10), omit "to property or to recover damages for pain and suffering". 23. Recovery of assistance paid under Victims of Crime Assistance Act 1996 (1) In section 87A(1)(b) of the Sentencing Act 1991— (a) after "made" insert "or varied"; (b) after "injury" insert "(including a significant adverse effect within the meaning of that Act that in accordance with that Act is required to be regarded as an injury)". (2) In section 87A of the Sentencing Act 1991, for sub-section (2) substitute— "(2) An application may only be made under sub- section (1) within the period of 6 months after— (a) the day on which the person was found guilty or convicted of the relevant offence; or (b) the day on which the award of assistance was made or varied under the Victims of Crime Assistance Act 1996— whichever is the later.". (3) Section 87A(8) of the Sentencing Act 1991 is repealed. 24. New section 123 inserted s. 23 s. 24 -- 31 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 30 After section 122 of the Sentencing Act 1991 insert— "123. Transitional provisions—Victims of Crime Assistance (Amendment) Act 2000 (1) The amendment of this Act made by a provision of section 21 or 22 of the Victims of Crime Assistance (Amendment) Act 2000 applies to an application under section 86 of this Act for compensation for pain and suffering made before the commencement of that provision but heard or determined after that commencement, irrespective of when the offence was committed or the finding of guilt made or conviction recorded. (2) An application to which sub-section (1) applies must be heard and determined as if it were an application made under Subdivision (1) of Division 2 of Part 4. (3) Subject to Subdivision (1) of Division 2 of Part 4, an application may be made under that Subdivision after the commencement of section 21 of the Victims of Crime Assistance (Amendment) Act 2000, irrespective of whether the offence was committed or the finding was made or the conviction was recorded before or after that commencement. (4) The amendment of this Act made by a provision of section 23 of the Victims of Crime Assistance (Amendment) Act 2000 applies only to an application under section 87A(1) of this Act made after the commencement of that provision.". 25. Consequential amendments s. 25 -- 32 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 31 (1) In section 191 of the Children and Young Persons Act 1989— (a) for "section 86(2)" substitute "sections 85H(1) and 86(2)"; (b) after "must" insert "and as if in section 85C(1)(b)(iii)(B) the reference to the Magistrates' Court were a reference to the Criminal Division". (2) In sections 33(6), 59(5) and 64(4) of the Confiscation Act 1997, for "86" substitute "Division 2 of Part 4". (3) In section 138B(1) of the Accident Compensation Act 1985— (a) for "section 86" substitute "Subdivision (1) of Division 2 of Part 4"; (b) for "order an offender to pay compensation for pain and suffering if the compensation would be for pain and suffering to a person" substitute "make a compensation order within the meaning of that Subdivision if the compensation would be for a matter". (4) In section 138B(2) of the Accident Compensation Act 1985, for "section 86" substitute "Subdivision (1) of Division 2 of Part 4". (5) In sections 7(9) and 59B(1A) of the Accident Compensation (WorkCover Insurance) Act 1993, for "pain and suffering awarded under section 86" substitute "a matter for which compensation is awarded under Subdivision (1) of Division 2 of Part 4". No. 56/1989. Reprint No. 5 as at 1 July 1998. No. 108/1997. Reprint No. 1 as at 1 July 1998. No. 10191. Reprint No. 9 as at 30 June 1999. No. 50/1993. Reprint No. 5 as at 30 June 1999. -- 33 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 32 (6) In section 94(2)(c) of the Transport Accident Act 1986, for "pain and suffering awarded under section 86" substitute "a matter for which compensation is awarded under Subdivision (1) of Division 2 of Part 4". (7) In section 107A(1) of the Transport Accident Act 1986— (a) for "section 86" substitute "Subdivision (1) of Division 2 of Part 4"; (b) for "order an offender to pay compensation for pain and suffering if the compensation would be for pain and suffering to a person" substitute "make a compensation order within the meaning of that Subdivision if the compensation would be for a matter". (8) In section 107A(2) of the Transport Accident Act 1986, for "section 86" substitute "Subdivision (1) of Division 2 of Part 4". 26. New section 252E inserted in Accident Compensation Act 1985 In the Accident Compensation Act 1985, after section 252D insert— "252E. Supreme Court—limitation of jurisdiction It is the intention of section 138B, as amended by section 25 of the Victims of Crime Assistance (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.". 27. New section 132C inserted in Transport Accident Act 1986 In the Transport Accident Act 1986, after section 132B insert— No. 111/1986. Reprint No. 6 as at 26 August 1999. s. 26 -- 34 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 33 "132C. Supreme Court—limitation of jurisdiction It is the intention of section 107A, as amended by section 25 of the Victims of Crime Assistance (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.". ═══════════════ s. 27 -- 35 of 36 -- Act No. 54/2000 Victims of Crime Assistance (Amendment) Act 2000 34 ENDNOTES † Minister's second reading speech— Legislative Assembly: 26 May 2000 Legislative Council: 29 August 2000 The long title for the Bill for this Act was "to amend the Victims of Crime Assistance Act 1996, the Sentencing Act 1991, the Children and Young Persons Act 1989, the Confiscation Act 1997, the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and the Transport Accident Act 1986 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 26 May 2000 Legislative Council: 29 August 2000 Absolute majorities: Legislative Assembly: 17 August 2000 Legislative Council: 5 September 2000 Endnotes -- 36 of 36 --