Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper

Eligibility

Primary victims, secondary victims and related victims. 

Primary victims, related victims and homicide witnesses.

Primary victims, secondary victims and family victims.

Primary victims, secondary victims, family victims and related victims.

Primary victims, parent secondary victims, witness secondary victims and related victims.

Immediate victims, parent/ spouse/ domestic partner/ child of victims of homicide and dependent of immediate victims who die.

Primary victims, secondary victims, related victims.

Victims of an toffence and close relatives of a person who dies as a result of an offence.

Proof/evidence of offence

No charge or conviction required – question of fact decided on the balance of probabilities.

No charge or conviction required – must be satisfied on the balance of probabilities about any matter relevant to application including whether an offence occurred.

No charge or conviction required – documentary evidence must support that act of violence occurred on the balance of probabilities.

No charge or conviction required.

No charge or conviction required – must be satisfied on the balance of probabilities that the person is eligible for the assistance.

Offence must be proved beyond reasonable doubt. But there are certain circumstances where there has been no conviction, in which the Attorney-General has the discretion to make an ex gratia payment.

No charge or conviction required –must be satisfied on the balance of probabilities that the death or injury was the result of criminal conduct.

Offences for which a person has been convicted (‘proved offences’). But the Act also applies to ‘alleged offences’ in certain circumstances.

Types of crimes covered

‘Act of violence’. Violent offences resulting in injury or death. Includes assault, sexual offences, stalking, child stealing and kidnapping.

‘Act of violence’. Offences resulting in injury or death. Includes offences against the person, sexual offences, robbery and female genital mutilation. Also includes specific ‘family violence offences’, such as property offences and breach of family violence order.

‘Act of violence’. Violent offences resulting in injury or death. Specifically extends to domestic violence.

‘Violent Act’. Criminal acts that result in injury to a person.

‘Act of violence’. Means crimes against the person and domestic violence, including non-criminal forms of abuse that results in death or injury.

Offences involving the use of violence, threat of violence or creates a reasonable apprehension of imminent harm, sexual offences and offences that cause death or physical injury.

Violent offences, including sexual offences, abduction, kidnapping and stalking.

Crimes, misdemeanours and simple offences that are ‘proved’

(i.e. the offender has been convicted) or, in certain circumstances, that are ‘alleged’.

Is there a requirement for ‘injury’?

Yes—‘injury’ means actual physical bodily harm, mental illness or disorder and pregnancy. Can be ‘significant adverse effect’ for primary victims claiming special financial assistance.

Yes—‘injury’ means physical injury, mental illness and mental disorder. But recognises broader category of injuries for family violence and sexual offences, including unplanned pregnancy, violation, reduced sense of self-worth, increased fear /insecurity.

Yes—‘injury’ means actual bodily harm, grievous bodily harm and psychological or psychiatric harm.

Yes—‘injury’ means physical illness or injury, recognisable psychological or psychiatric disorder and pregnancy. But there is no requirement of injury for certain sexual offences (‘compensable violent acts’).

Yes—‘injury’ means bodily injury, mental illness or disorder, intellectual impairment, pregnancy and disease. But recognises broader category of injuries for domestic violence and sexual offences including violation, reduced sense of self-worth, increased fear/ insecurity, adverse impact.

Yes—for an immediate victim must be physical or mental injury, including pregnancy, mental shock and nervous shock. Grief is required for close family members and financial loss for dependents.

Yes—‘injury’ means impairment of bodily or mental health and pregnancy.

Either ‘injury’, including bodily harm, mental or nervous shock and pregnancy; or financial ‘loss’.

Is family violence specifically recognised under the Act?

No, but consideration of whether alleged offender was in a position of power, influence or trust in some circumstances.

Yes. ‘Act of violence’ includes ‘family violence offences’ and the Act expressly recognises family violence-related injuries including unplanned pregnancy, violation, reduced sense of self-worth and increased fear/insecurity.

Yes, must have regard to family violence when considering whether the victim failed to take reasonable steps to mitigate the extent of an injury. Different time limits also apply for lodging an application for family violence.

Yes. Specifically includes ‘domestic violence injuries’ as a ‘compensable injury’. Domestic violence is also a factor to consider in relation to extension of time applications.

Yes. ‘Act of violence’ includes ‘domestic violence’. The Act also explicitly recognises domestic violence-related injuries, including violation, reduced self-worth, loss of physical immunity/ capacity, increased fear/ insecurity and other adverse effects. In addition to police, victims of domestic violence can also report to counsellors, doctors, psychologists or domestic violence services. Domestic violence is a relevant factor when considering whether the victim had a reasonable excuse for failing to assist police.

No.

No.

No.

Is family violence defined?

No.

Yes – sets out a range of family violence offences, including arson, property damage, burglary, offences involving firearms, driving offences and breach of family violence protection order.

Yes – defined as an act that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 )

Yes – defines ‘domestic violence injuries’ as injury resulting from a violent act involving a pattern of abuse committed by an offender with whom the victim is in a domestic relationship or stalking in contravention of a domestic violence order.

Yes – domestic violence has the definition that it does in the Domestic and Family Violence Protection Act 2012 (Qld), which includes physical or sexual abuse, emotional or psychological abuse, economic abuse and behaviour that is threatening, coercive, controlling or dominating.

No.

No.

No.

Categories of awards for primary victims

Counselling, medical expenses, loss of earnings, loss/damage to clothing worn at the time, safety-related expenses and, in exceptional circumstances, expenses to assist in recovery. Can also be awarded ‘special financial assistance’, which is a lump sum that varies according to the type of offence. Expressly excludes property loss/ damage.

Financial assistance for immediate needs and economic loss. Can also be awarded a ‘recognition payment’, which is a lump sum that varies according to the type of offence.

Counselling, financial assistance for immediate needs in order to secure victim’s safety/ health/ well-being, and financial assistance for economic loss. Can also be awarded a ‘recognition payment’, which is a lump sum that varies according to the type of offence. Expressly excludes property loss/ damage.

Financial assistance for financial loss and counselling. Can also be awarded a lump sum for certain ‘compensable injuries’ and ‘compensable violent acts’.

Counselling, medical expenses, incidental travel expenses, report expenses as part of application, loss of earnings, damage to clothing worn at the time, and expenses to assist in recovery in exceptional circumstances. Can also be awarded ‘special assistance’, which is a lump sum that varies according to the type of offence. Expressly excludes property damage.

‘Compensation for the injury arising from the offence.’ Includes financial and non-financial loss.

Expenses incurred as a result of the injury, medical, dental, psychological and counselling services required in the future, loss of wages or salary, pain and suffering. Expressly excludes property loss/ damage.

Compensation for the injury and any loss suffered.

Quantum of awards for primary victims – maximum amount

$60,000 plus $10,000 ‘special financial assistance’. Includes a maximum of $20,000 for loss of earnings.

Total maximum of $50,000. Includes a maximum of $10,000 for immediate needs, $30,000 for loss of earnings and a ‘recognition payment’ of up to $26,250. But for a primary victim of a ‘domestic violence offence’ only, the total maximum award is $10,000. These amounts are subject to indexation.

A maximum of $5,000 for immediate needs, $5,500 for counselling services, $30,000 for economic loss, and a ‘recognition payment’ of up to $10,000.

$40,000, including a maximum of $40,000 for a single ‘compensable injury’ or a single ‘compensable violent act’.

$75,000 plus $500 for legal costs. This includes a maximum of $20,000 for loss of earnings and ‘special assistance’ of up to $10,000.

$100,000, including a maximum of $100,000 for non-financial loss. Amounts prescribed in the Act are subject to indexation.

$30,000 for a primary victim of a single offence and $50,000 for a primary victim of multiple offences.

$75,000 for offences committed after the commencement of the Act.

Are related criminal acts treated as a single criminal act?

Yes, unless in the circumstances they ought not to be. But a higher maximum award of ‘special financial assistance’ is available for a series of related criminal acts in certain circumstances.

Yes, if they are likely to form a single ongoing offence or if assistance would be disproportionate if treated separately. Notice must be given to the applicant. But a series of offences is a ‘circumstance of aggravation’, which can result in a higher ‘recognition payment’.

Yes, unless in the circumstances they ought not to be. But a higher ‘recognition payment’ is available for a series of related criminal acts in certain circumstances.

Yes. But if the related acts occur in the context of domestic violence, the victim is eligible for a lump sum for ‘domestic violence injuries’.

Yes both related criminal acts and related acts of domestic violence are treated as a single offence. Must give notice to the applicant and he or she has an opportunity to object. But in certain circumstances a higher maximum award of ‘special assistance’ is available for a series of related criminal acts.

Yes.

Yes. But a higher maximum award is available for a victim of a ‘series of offences’.

Yes.

Time limit

2 years after the act of violence. But time limit can be extended in certain circumstances, having regard to factors such as whether the offender in position of power, influence or trust.

3 years after the act of violence or the day the child victim turns 18. But time limit can be extended in certain circumstances, having regard to factors such as whether the alleged offender was in a position of power, trust or authority.

2 years after the act of violence or the day the child victim turns 18. But time limit is 10 years for victims of domestic violence, child abuse or sexual assault.

No time limit for a child victim of a sexual offence. Time limit can also be extended if primary victim subsequently dies as a direct result of the act of violence.

2 years after the violent act or the day the death or injury occurs. But time limit can be extended in certain circumstances, having regard to factors such as whether the alleged offender was in a position of power, trust or authority or where the injury or death occurred as a result of sexual assault, domestic violence or child abuse.

3 years after the act of violence, the day the child victim turns 18 or the day the primary victim dies.

3 years after the offence or, if the application relates to a death, 12 months from the death. May extend the time limit for ‘any proper reason’.

3 years after the offence or the day the child victim turns 18. May extend the time limit if ‘special circumstances’ justify the extension.

3 years after the date of the offence. But an extension of time may be granted ‘if it is just to do so’.

Decision maker/relevant agency

Judicial – Magistrates sitting as members of the Victims of Crime Assistance Tribunal. Hearings if applicant elects or Tribunal requires.

Administrative – Victims of Crime Commissioner (head of Victim Support ACT). No hearings.

Administrative – Commissioner for Victims Rights (head of Victims Services, NSW Justice Department). No hearings.

Administrative – assessors appointed by the Minister. No hearings.

Administrative – government assessor chosen by the scheme manager. No hearings.

Judicial –the District Court. But at first to Crown Solicitor.

Quasi-judicial – independent Criminal Injuries Compensation Commissioners. Hearings if applicant elects or Commissioner requires.

Quasi-judicial – assessors appointed by the Governor for a 5 year term. Hearings if the assessor requires.

Perpetrator notification

Yes—discretionary.

Yes—discretionary.

Perpetrator only notified if a provisional restitution order is made.

Yes—discretionary.

Perpetrator only notified if the State subsequently intends to recover from him or her.

Yes—mandatory unless the offender’s identity or whereabouts is unknown.

Perpetrator only notified if a provisional order made that directs the offender to pay the Crown the compensation awarded.

Yes—discretionary.

Can a failure to report to police lead to a refusal of an application?

Yes—failure to report to police in a reasonable time results in mandatory refusal, unless special circumstances exist.

Yes—failure to report to police can lead to a refusal of application. But ‘special reporting class victims’ can report to other professionals, including doctors, counsellors and government agencies instead. Special reporting class victims include child victims, victims of sexual offences and victims of an offender who was in a position of trust, influence or power.

Yes—must consider whether reported to police within reasonable time. May have regard to the nature of the relationship between the victim and perpetrator. Can also consider whether the act of violence was reported to a health or other relevant agency.

Yes—failure to report to police within a reasonable time can lead to a refusal of application, unless the circumstances prevented the report from being made.

Yes—failure to report to police can lead to a refusal of application, unless there is a reasonable excuse. But ‘special primary victims’ can report to a counsellor, psychologist, doctor or domestic violence service instead. ‘Special primary victims’ include child victims, victims of sexual offences, victims of an offender who was in a position of trust, influence or power and victims of domestic violence.

Yes—failure to report to police within a reasonable time and ‘without good reason’ can lead to a refusal of application.

No specific provision. But failure to report to police may constitute a failure to assist police (see below).

No specific provision. But failure to report to police may constitute a failure to assist police (see below).

Can a failure to assist/co-operate with Police lead to a refusal of an application?

Yes—failure to assist police results in mandatory refusal, unless special circumstances exist.

Yes—mandatory refusal if applicant has unreasonably failed to give assistance to police.

Yes—in determining whether or not to grant the application/ the amount of the award, Commissioner must have regard to failure to assist police.

Yes—mandatory refusal if applicant failed without reasonable excuse to assist the police in a material way in the investigation or prosecution of the offender.

Yes—mandatory refusal if applicant has not given reasonable assistance to police and that failure prevented the arrest or prosecution of the offender. However, domestic violence is a factor to which the decision maker must have regard in deciding whether the victim had a reasonable excuse not to assist police.

Yes—mandatory refusal if applicant refused or failed to provide information, give evidence or to co-operate in the investigation or prosecution of the offence without reasonable excuse.

Yes—mandatory refusal if the applicant failed to reasonably assist in the identification, apprehension or prosecution of alleged offender.

Yes—mandatory refusal if the applicant failed to reasonably assist in the identification, apprehension or prosecution of alleged offender.

Can an applicant’s character/behaviour /contributory conduct lead to refusal of an application?

Yes—in determining whether or not to make an award, must consider the applicant’s character/ behaviour (including past criminal behaviour) as well as whether the applicant ‘provoked’ or contributed to injury. Mandatory refusal if the application is made in collusion with the alleged offender.

Yes—award must be reduced if applicant contributed to the injury or failed to mitigate extent of the injury.

Yes—must consider any behaviour (including past criminal behaviour) or whether victim contributed/ encouraged/ assisted offence or whether victim failed to mitigate injury (i.e. by not seeking medical treatment). But can consider dynamics of sexual assault/ domestic violence in relation to mitigation of injury.

Yes—award must be refused if the applicant made the application in collusion with the offender or the injury/ death occurred during the commission of an indictable offence by the applicant.

Yes—award must be refused if the applicant conspired with the perpetrator or if the main reason for the act of violence was the primary victim’s involvement in criminal activity.

Yes—award must be refused if the claimant was engaged in conduct constituting an indicatable offence and that conduct materially contributed to the claimant’s risk of injury, unless failure to compensate would be unjust in the circumstances.

Yes—in determining whether to refuse/ reduce an award, must have regard to any behaviour, condition, attitude or disposition of the victim that appears to have directly or indirectly contributed to the injury/ death.

Yes—award must be refused if the victim was committing a separate offence at the time. Can also refuse/ reduce award if the behaviour, condition, attitude or disposition of the victim contributed to the injury/ death.

Can an award be refused on the basis a perpetrator may benefit?

Yes—must consider whether alleged perpetrator will benefit either directly or indirectly.

No.

No. But in making a decision as to whom the assistance should be paid, must have regard to whether alleged offender may benefit from the payment.

Yes—may reduce an award where it is likely to benefit the offender because of a relationship or connection between the applicant and offender.

No.

No.

No.

Yes—mandatory refusal if there is a ‘relationship or connection’ between the victim and the offender and the award is likely to benefit the offender.