The Act primarily affects victims of crime and their close relatives, as they are the intended beneficiaries of the compensation scheme. An application can be made by the victim directly (or if the victim is under 18, by a parent or person acting in place of a parent; if the victim is a represented person under the Guardianship and Administration Act 1990, by a guardian or administrator - s 11(2)). For deceased victims, the application must be made by the personal representative of the deceased, and any compensation awarded is for the loss suffered by the close relatives (ss 12(2), 30(3)). Close relatives themselves are not applicants but are the ultimate beneficiaries; the award may be apportioned between two or more close relatives (s 30(4)(a)). The victim’s entitlement ceases on the victim’s death, and a close relative’s entitlement ceases on that relative’s death, even if an application has already been made or an award made in ignorance of the death (s 10). This is a strict rule.

Offenders are directly affected in two ways. First, the assessor must not make an award if the assessor is of the opinion that, because of a relationship or connection between the offender and the victim or close relative, any money paid is likely to benefit or advantage the offender (s 36). Second, the CEO may request the offender to reimburse the State for compensation paid, and if the offender does not pay, the CEO may apply to the Chief Assessor for a compensation reimbursement order (ss 49-50). That order can be enforced as a court judgment (s 53). The offender’s means, responsibility, and the victim’s behaviour are considered before an order is made (s 52(2)).

The CEO (the department head) has significant operational involvement: receiving copies of awards (s 28), applying for stays of applications where a prosecution is pending (s 22), applying for reimbursement orders, and seeking amendment or cancellation of such orders (s 52(3)). The CEO also gives notices to offenders requesting reimbursement (s 49).

Assessors, particularly the Chief Assessor, are central: they determine applications, conduct hearings, issue summonses for witnesses and documents, direct medical examinations, make interim payments, make or refuse to make awards, and make or cancel reimbursement orders. They are protected by immunity equivalent to a Supreme Court judge when performing their functions (s 65(1)), and are not personally liable for acts done in good faith (s 66). Legal practitioners representing parties before assessors have the same protections as in Supreme Court proceedings (s 65(2)). Witnesses also have protections (s 65(3)) and are entitled to reasonable expenses and lost earnings (s 63(6)).

Health professionals (doctors, dentists, psychologists) may be required to examine victims and provide reports; the cost is paid by the Chief Assessor but deducted from any eventual award (s 20).

Finally, persons who provide false information in connection with an application commit an offence punishable by $5,000, and a court may order repayment of any compensation paid (s 70).

The primary duty of an assessor is to determine compensation applications expeditiously and informally, having regard to the requirements of justice and the Act (s 18(1)). In doing so, the assessor is not bound by the rules of evidence and may inform themselves in any manner they think fit (s 18(2)). The assessor has broad powers: to seek and receive information, make inquiries, request information from the applicant, give notice to any person requiring them to produce records or appear to give evidence, and defer the application pending receipt of information (s 19). The assessor may also direct a victim to attend a health professional for examination (s 20) and may require the victim to take independent proceedings for compensation or insurance payments before proceeding with the application (s 21). If the victim fails to comply with such a direction, the assessor may reduce any award (s 20(3)).

The assessor has the right to conduct a hearing if they think fit, and may make or refuse an award without a hearing (s 24). If a hearing is held, the applicant and any other interested person notified are entitled to appear, be represented by a legal practitioner (or another person approved), present evidence, call and cross-examine witnesses (s 25(2)). The hearing is private unless the assessor decides otherwise (s 25(4)). The assessor must give written reasons for a refusal to the applicant (s 27(2)), and to any interested person who requests reasons for an award (s 27(1)).

The rights of the applicant include: the right to apply for compensation within three years of the offence (s 9(1)), with the assessor having discretion to extend that time if just (s 9(2)); the right to receive interim payments if the assessor is satisfied expenses are likely to be covered and it is warranted (s 23); the right to receive the award in writing (s 26); the right to request reasons; and the right to appeal to the District Court against the assessor’s decision on the award (s 55). The appeal is a hearing de novo - the District Court decides the application afresh and may receive further evidence (s 56(1)). The appeal must be commenced within 21 days of the assessor’s decision, though the Court may extend time if just (s 55(3)-(4)). Notably, the District Court’s decision is final and not appealable (s 57).

The CEO has a duty to keep a copy of every award (s 28) and may apply for a stay of proceedings if a prosecution is pending (s 22). The CEO also has the right to apply for a compensation reimbursement order against a convicted offender (s 50) and may apply to amend or cancel such orders (s 52(3)). The CEO may also appear and be heard at hearings of applications for reimbursement orders (s 51(3)).

An important duty of the applicant (or victim) is to do any act reasonably required to assist in the identification, apprehension or prosecution of the offender; failure to do so can result in the assessor refusing to make an award (s 38). The applicant must also provide information truthfully; giving false information is an offence (s 70).

The Act creates several criminal offences, each with a penalty of $5,000 for natural persons and, in one case, $25,000 for a body corporate. Specifically:

• A person who without reasonable excuse fails to comply with a notice from an assessor requiring them to give information, appear to give evidence, or produce records commits an offence (s 19(5) - penalty $5,000).
• A witness at a hearing who without reasonable excuse fails to appear, take an oath, give oral evidence, or produce a record commits an offence (s 63(5) - penalty $5,000).
• A person who gives false information in a compensation application, in response to a request for information under s 19, or in an application for a reimbursement order under s 50 or s 52(3), knowing it is false in a material particular, commits an offence (s 70(2) - penalty $5,000). Additionally, a court that convicts a person of that offence may order repayment of any amount paid under a compensation award made on the application (s 70(3)).
• A person who contravenes an assessor’s order restricting publicity of proceedings commits an offence - for a natural person: $5,000; for a body corporate: $25,000 (s 64(5)).

Prosecutions for these offences must be commenced within two years after the date the offence is alleged to have been committed (s 71).

Enforcement of financial obligations is primarily through civil mechanisms. If an interim payment is made and compensation is subsequently refused, the amount becomes a debt due to the State (s 23(4)). Similarly, if a victim or close relative receives insurance payments or damages for the same injury or loss after a compensation award is made (and those amounts were not deducted under s 42), the lesser of the award and the other amount is a debt due to the State (s 68). These debts may be recovered in a court of competent jurisdiction (s 69(1)). The State can also reduce any future compensation award by amounts owed under s 23(4), a compensation reimbursement order, or s 68 (s 43).

Compensation reimbursement orders under s 52 are enforceable by lodging a certified copy of the order and an affidavit of non-compliance with a court of competent jurisdiction, whereupon the order is taken to be a judgment of that court against the offender in favour of the State (s 53). This allows the State to use ordinary judgment enforcement processes (e.g., garnishment, property seizure). The order may require payment by instalments (s 52(1)). The assessor must consider the offender’s means before making the order (s 52(2)(d)-(e)).

The Act also empowers an assessor to order an offender to pay the State the whole or part of witness expenses paid by the State, and that order is enforceable as if it were a compensation reimbursement order (s 63(7)-(8)).

Section 7 provides that the Act is to be construed as being in addition to, and not in derogation of, any other law, subject to sections 42(3) and (4) and 68. This means the compensation scheme is an additional remedy, not a substitute for common law claims or insurance rights. However, there are important interactions and deductions.

The Act expressly incorporates the Fatal Accidents Act 1959 for the purpose of defining loss suffered by close relatives of a deceased victim (s 6(3)). When deducting insurance or other payments from an award, sections 42(3) and (4) require deduction of amounts already received or likely to be received for the same injury or loss. But for deceased victims, the amounts described in the Fatal Accidents Act 1959 s 5(2)(b) and (c) must not be deducted (s 42(5)). This preserves certain benefits for dependants.

Where injury or death is caused by a motor vehicle, the Act generally prohibits an award unless the motor vehicle was used for the purpose of committing the offence and the offence is a crime (s 37). This interacts with the Motor Vehicle (Third Party Insurance) Act 1943 and the compulsory third-party insurance scheme, preventing double recovery for road traffic injuries that are covered by insurance.

The definition of convicted (s 5) defers to the Sentencing Act 1995, Young Offenders Act 1994, and other repealed legislation, ensuring that various diversionary outcomes (spent convictions, no conviction recorded, juvenile justice team referrals) still count as a conviction for the purpose of accessing compensation under the proved offence provisions and for making reimbursement orders. The Criminal Code is referenced in ss 13(5), 15(5), 16(5), 17(5) for cases where the offender was not criminally responsible by reason of mental impairment under s 27 of the Code (or certain covert powers provisions) - in those circumstances, the alleged offence is taken not to have been committed, barring compensation unless the acquittal was on account of mental impairment (which activates s 14 instead).

The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to the Act (s 8A), allowing for electronic filing and service of documents.

Insurance arrangements under the National Health Act 1953 (Cth) are relevant: a registered organisation under that Act is one from which payments must be deducted from an award under s 42(2). The Act also envisages that amounts deducted under s 42(3) or (4) may be remitted to the Commonwealth under a law of the Commonwealth, and those amounts can be included in a compensation reimbursement order (s 52(1)(b)).

For child sexual abuse matters, the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 amended s 68 to provide that the debt due to the State does not arise if the other amount (insurance or damages) was reduced to take into account the compensation award (s 68(1A)). This prevents a clawback where the other payment already discounted the compensation received.

The Criminal Injuries Compensation Act 2003 was originally enacted as Act No. 77 of 2003 and commenced on 1 January 2004 (except for sections 1 and 2 which commenced on assent, 15 December 2003). Since then, it has been amended by numerous subsequent Acts.

Notable amendments include:

• Criminal Injuries Compensation Amendment Act 2004 (No. 29 of 2004): inserted s 48A to include awards under the repealed 1985 Act within the definition of compensation award for Part 6 reimbursement; amended ss 35, 37, 43; and contained a validation provision deeming certain orders and notices made after 1 January 2004 to have been made under the 2003 Act.
• Acts Amendment (Court of Appeal) Act 2004 (No. 45 of 2004): amended ss 56 and 58 to refer to the Court of Appeal (renamed from Full Court).
• Acts Amendment (Justice) Act 2008 (No. 5 of 2008): inserted s 62A (assessor may conduct hearing); amended s 48 (future treatment expenses time limits); amended s 56 (appeal powers).
• Criminal Law and Evidence Amendment Act 2008 (No. 2 of 2008): amended s 16 to add further circumstances where a charge is not determined.
• Legal Profession Act 2008 (No. 21 of 2008): replaced references to “legal practitioner” with updated terminology and amended provisions on hearings and assessor qualifications (Sch 1 cl 1).
• Health Practitioner Regulation National Law (WA) Act 2010 (No. 35 of 2010): updated the definition of health professional to refer to the National Law.
• Criminal Investigation (Covert Powers) Act 2012 (No. 55 of 2012): amended ss 13, 16, and 17 to add references to the Criminal Investigation (Covert Powers) Act 2012 ss 27, 31, 34 as further exceptions to the rule that an offender not criminally responsible means the alleged offence is taken not to have been committed.
• Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (No. 20 of 2013): inserted s 8A applying electronic processes facilitation provisions.
• Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (No. 3 of 2018): amended s 68 to add s 68(1A) preventing double recovery clawback where the other payment was reduced to take account of the compensation award.
• National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (No. 36 of 2018): amended s 42 to update the definition of registered organisation.
• Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022): amended the definition of legal experience in Sch 1 cl 1.
• Criminal Law (Mental Impairment) Act 2023 (No. 10 of 2023): amended ss 13, 14, 15, 16, and 17 to replace references to “acquitted on account of unsoundness of mind” with “found not guilty on account of mental impairment” and to update the relevant Criminal Code sections. This Act has a commencement date of 1 September 2024.

The compilation table in the Act lists all amendments and their commencement dates.

The Act itself does not cite any case law. However, the appeal mechanism under Part 7 provides the primary avenue for judicial consideration of assessors’ decisions. An interested person may appeal to the District Court against an assessor’s decision to make or refuse to make a compensation award, or as to the amount (s 55(1)). The CEO or an offender may appeal against decisions on compensation reimbursement orders (s 55(2)). The appeal must be commenced within 21 days after the date of the decision, though the District Court may extend time if just (s 55(3)-(4)).

On appeal, the District Court must decide the application afresh, without being fettered by the assessor’s decision, and may receive further evidence (s 56(1)). The Court can exercise any of the assessor’s powers (except certain procedural ones), confirm, vary or reverse the decision, make any order the assessor could have made, order costs against an unsuccessful party, and refer questions of law to the Court of Appeal (s 56(2)). Importantly, the District Court’s decision is final and not appealable (s 57). This means the District Court is the court of last resort for most matters under the Act.

There is also provision for an assessor to refer a question of law arising in relation to a compensation application or the interpretation of the Act to the Court of Appeal for determination (s 58). This allows the Court of Appeal to give authoritative guidance on legal issues without a full appeal.

While the Act provides no express provision for judicial review of assessors’ decisions apart from the statutory appeal, the general law would likely allow for prerogative relief in cases of jurisdictional error, given that the appeal is final. However, the text of the Act does not address this.

Practitioners should note that the transitional provisions in Schedule 2 preserve appeals commenced under previous Acts: appeals pending at commencement are dealt with under the old Act (Sch 2 cl 3(4)-(5)), but appeals commenced after commencement relating to pre-commencement decisions cannot result in an order that could not have been made under the law applicable when the decision was made (Sch 2 cl 4).

Several provisions in the Act can catch applicants and their legal representatives off guard if not carefully considered.

Time limit: Applications must be made within three years after the offence was committed (or the last of multiple offences) (s 9(1)). While the assessor may extend time if just (s 9(2)), this is discretionary and should not be relied upon without compelling reasons.

Death ends entitlement: If the victim or a close relative dies before an award is made, the entitlement ceases entirely, even if an application has already been lodged (s 10). This is absolute - the estate cannot continue the claim. For deceased victims, only the personal representative can apply on behalf of close relatives; a close relative cannot apply in their own name.

Motor vehicle exception: No award can be made for injury or death caused by a motor vehicle unless the vehicle was used to commit the offence and the offence is a crime (s 37). This excludes many common road traffic incidents, even if they involve criminal behaviour like dangerous driving causing death (unless the driving itself is the crime and the vehicle is used to commit it - the line is fine).

Criminal conduct of the victim: If the victim was injured or died while committing a separate offence, no award can be made (s 39). This applies to both the victim (s 39(1)) and any close relative (s 39(2)). The causal connection is key - the injury must be suffered “when the person was committing a separate offence”.

Failure to assist investigators: An assessor must not make an award if of the opinion that the victim or close relative did not do what they reasonably ought to have done to assist in identification, apprehension or prosecution of the offender (s 38). This is a mandatory bar, not discretionary. However, it only applies if the assessor forms that opinion.

Behaviour, condition, attitude or disposition of victim: Even if no separate offence was committed by the victim, the assessor must consider any contribution by the victim’s behaviour, condition, attitude or disposition to the injury or death, and may refuse or reduce the award on that basis (s 41). This can be a significant factor, for example, in cases of provocation, reckless behaviour, or victim precipitation.

Award likely to benefit offender: An award must not be made if there is a relationship or connection between the offender and the victim/close relative such that any money paid is likely to benefit the offender (s 36). This is a mandatory bar, often relevant in domestic violence situations where the offender may have access to the victim’s finances.

Previous awards or refusals: An award cannot be made if a previous award has been made or an application refused in relation to the same injury or loss (s 40). This prevents multiple applications for the same incident.

Insurance payments and double recovery: Any amount received for the same injury or loss under a contract of insurance or otherwise must be deducted from a compensation award (s 42(3)-(4)). Additionally, if an award is made and the victim later receives other compensation, the lesser amount becomes a debt due to the State (s 68). This is a strict clawback; the only exception (added by amendment) is where the other payment was reduced to take account of the compensation award (s 68(1A)). Applicants must disclose all insurance claims.

No power to award costs: The assessor cannot award costs to any party (s 67). This means each party bears their own legal costs in the application process, though costs may be ordered on appeal to the District Court (s 56(2)(d)).

Appeal period: Appeals to the District Court must be commenced within 21 days of the assessor’s decision (s 55(3)). While the court may extend time, the provision is strictly worded: “if it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired” (s 55(4)). Practitioners should act promptly.

Interim payments cap: Interim payments cannot exceed 3% of the maximum amount that could be awarded for a single offence (s 23(2)). For the current $75,000 cap, that is $2,250. This is a low ceiling, so interim payments are only useful for very urgent small expenses.

False information: Giving false information knowingly is an offence with a penalty of $5,000, and the court may order repayment of any compensation paid (s 70). This applies not only to the application itself but also to information provided in response to assessor requests.

For victims and applicants, the key steps are:

1. Make the application within three years of the offence. If the deadline has passed, apply anyway and provide compelling reasons why an extension is just (s 9(2)).
2. Use the approved form (prescribed by the Chief Assessor) and provide full and truthful details (s 11). Gather all evidence of injury, loss, and the circumstances of the offence - including medical reports, police reports, receipts for expenses, and evidence of lost earnings.
3. Cooperate fully with police and prosecutors. The assessor will check whether the victim assisted in identification, apprehension or prosecution of the offender (s 38). If there is any delay or failure to assist, document the reasons and any reasonable excuse.
4. Avoid committing any offence at the time of injury. If the victim was engaged in criminal conduct when injured, the application will be refused (s 39).
5. Disclose all insurance claims and other sources of compensation. Provide details of any payments received or expected under contracts of insurance, Medicare, workers’ compensation, or damages from civil proceedings. Failure to do so may result in later clawback of the award (s 42, s 68).
6. Attend any medical examination directed by the assessor. Non-compliance may result in reduction of the award (s 20).
7. If the assessor requires the victim to pursue other remedies (e.g., civil proceedings against the offender or insurance claims), comply with that requirement. The application will be deferred pending the outcome of those proceedings (s 21).
8. Keep the assessor informed of any changes in circumstances, including if the offender is later convicted, as this may affect eligibility or reimbursement rights.
9. If dissatisfied with the assessor’s decision, file an appeal in the District Court within 21 days of the decision. The appeal is a fresh hearing, so new evidence can be presented (s 56). Remember that the District Court’s decision is final - there is no further appeal (s 57).

For legal practitioners representing applicants:

• Thoroughly assess the strength of the claim under the applicable category (proved offence or one of the alleged offence categories). Ensure that all evidentiary requirements are met: for a proved offence, a copy of the conviction; for an alleged offence, evidence that the offence occurred even though no conviction resulted.
• Check the date of the offence to determine the maximum compensation cap (s 31 Table). For offences after commencement, the cap is $75,000 per single offence, but note that multiple offence caps under ss 33 and 34 may limit the total.
• Identify any potential bars to compensation: victim’s criminal conduct, failure to assist, behaviour contributing to injury, motor vehicle exclusion, relationship with offender likely to benefit offender, previous awards.
• Calculate loss carefully, noting that future treatment expenses require a request within 10 years (or 28th birthday if under 18) (s 48), and that loss of earnings must be a direct consequence of the injury (s 6(2)(c)).
• Advise the applicant about the interim payments cap and the possibility of requiring independent proceedings.
• Represent the applicant at any hearing, remembering that costs are not recoverable in the assessor’s process, and that the assessor has broad powers to compel evidence.

For the CEO and department staff:

• Monitor all awards received under s 28.
• Consider applying for a stay under s 22 if a prosecution is pending.
• Assess each award for potential reimbursement from the offender: if the offender has been convicted, issue a written notice under s 49 requesting reimbursement. If that is unsuccessful, apply to the Chief Assessor for a compensation reimbursement order under s 50.
• For compensation reimbursement order hearings, ensure that notice is served on the offender and that the assessor has information on the offender’s means and the victim’s behaviour (s 52(2)).
• Enforce any order made under s 52 by lodging a certified copy with a court of competent jurisdiction (s 53).
• Recover any debts due under s 23(4) or s 68 through court proceedings (s 69).