Victims of Crime Assistance Act 1976

The Act defines several key terms that structure the entire compensation scheme. "Criminal conduct" is central and means either an act referred to in section 4(1)(a) - that is, an act that constitutes an offence or would constitute an offence but for the age, insanity or other excuse of the actor - or any act of a person referred to in section 4(1)(b) (assisting a police officer in arrest or crime prevention) as a result of which an award may be made. This definition captures both completed offences and acts that would be offences but for a legal defence, such as a child under the age of criminal responsibility or a person acquitted on grounds of mental impairment. "Offence" is separately defined (and narrower than criminal conduct) to mean an offence that involves violence by one person against another, including specific crimes under the Criminal Code (sections 127, 127A, 185, 186, 191A, 192). This violence requirement ties the scheme to crimes causing physical or psychological harm. "Injury" is defined broadly in section 2(2) to include any impairment of bodily or mental health, and also a person becoming pregnant. This means sexual assault resulting in pregnancy is compensable as an injury without needing to prove physical harm. The Act creates three tiers of victim. A "primary victim" is the person against whom the offence is committed (s 2(1)). A "secondary victim" is a person who suffers injury as a result of witnessing an offence, or a parent, step-parent or guardian of a primary victim who was under 18 at the time of the offence (s 2(1)). A "related victim" is defined by relationship: spouse or child, stepchild, brother, sister, stepbrother or stepsister of a primary victim; a parent or step-parent of a primary victim over 18; or a person in a personal relationship within the meaning of the Relationships Act 2003 (s 2(1)). "Dependant" is a narrower concept relating to a victim who dies as a result of criminal conduct - it includes any person wholly or mainly dependent on the victim at death, including a child born after death. "Award" means an award of compensation under the Act. "Commissioner" includes a person appointed as Criminal Injuries Compensation Commissioner under s 2A(1) (Australian lawyers of at least five years' standing) and also, by force of s 2A(3), each Associate Judge, the Registrar and the Deputy Registrar of the Supreme Court. "Offender" means a person whose act constitutes criminal conduct, regardless of whether they are convicted. For Part 3, a "serious offence" is defined specifically: an offence against Criminal Code sections 158, 170, 172 or 185, or an attempt to commit such an offence. "Property" in Part 3 is broadly defined to include real or personal property of every description, tangible or intangible, including an interest in property. "Production order" allows access to property-tracking documents. The "victims fund" under Part 3 is a separate account in the Public Account used for the benefit of victims of serious offences, distinct from the Criminal Injuries Compensation Fund under Part 2.

The Act directly affects several classes of persons. First and foremost, it affects victims of crime - primary victims, secondary victims and related victims - who have standing to apply for compensation. This includes any person who suffers injury (including mental harm or pregnancy) as a result of criminal conduct, or who witnesses an offence and suffers injury, or who is a close relative or partner of a primary victim. The Act also covers persons who assist a police officer in making an arrest or preventing crime and are killed or injured in doing so, even if no offence is committed by the person they assist (s 4(1)(b)). Secondly, offenders are affected: under Part 2, an offender who is convicted of an offence in respect of the criminal conduct that led to an award becomes liable to a provisional order directing payment of the whole compensation awarded to the Crown (s 7A). Under Part 3, persons convicted of a serious offence after 3 October 1996 are liable to have their property restrained and ultimately forfeited if the likely compensation and damages exceed $100,000. Thirdly, the Act imposes obligations on the Commissioner - an appointed officer or an Associate Judge, Registrar or Deputy Registrar of the Supreme Court - who must determine applications, apply the statutory criteria, and may issue emergency or interim awards. Fourthly, the Director of Public Prosecutions is the primary applicant for Part 3 orders (restraining, forfeiture and production orders). Fifthly, the Public Trustee may be directed to take control of property under a restraining order (s 16(b)) and may enforce the order with protection from obstruction. Sixthly, the Act affects the Treasurer, who is responsible for the Criminal Injuries Compensation Fund and any trust moneys received from victims who later recover civil damages (s 9(2)). Seventhly, the Attorney-General has powers under Part 3 to direct the disposal of forfeited property and to advise on payments from the victims fund. Eighthly, the Monetary Penalties Enforcement Service receives confirmed provisional orders under s 7A and enforces them as fines. Ninthly, insurance and health providers are indirectly affected because compensation cannot be awarded for expenses that are claimable under Medicare or from a health benefits organisation (s 6(1)(e)). Employers and workers' compensation insurers are affected because s 6(1)(d) prohibits awards for matters for which compensation has been paid or is payable under a "compensation law" - defined as any law of a State, Territory or the Commonwealth that relates to payment of compensation by an employer for death or injury of employees. Finally, persons who might have an interest in a defendant's property under Part 3 are affected by restraining and forfeiture orders: they must be given notice and may appear on applications to set aside dealings (s 21).

The Act imposes several duties on the Commissioner. The primary duty is to determine applications for compensation. The Commissioner must be satisfied on the balance of probabilities that the death or injury was the result of criminal conduct (s 5(2)). The Commissioner has a duty to consider any behaviour, condition, attitude or disposition of the victim that directly or indirectly contributed to the injury or death (s 5(3)) - this can reduce or deny an award. The Commissioner must not make an award if the applicant has failed to do any act that should reasonably have been done to assist in the identification, apprehension or prosecution of the alleged offender (s 5(3A)). The Commissioner may refuse or reduce an award if the applicant has an adequate civil remedy, and must take into account any amount already recovered or likely to be recovered through civil proceedings (s 5(4)). The Commissioner has a duty to determine an application within three years of the date of application, but may extend that period if satisfied there are special circumstances (s 7(8)-(9)). The Commissioner can also require an applicant to appear in person and may refuse the award for non-compliance without reasonable excuse (s 7(5)). When an offender is convicted, the Commissioner must make a provisional order directing the offender to pay the whole compensation awarded to the Crown (s 7A(2)). The Commissioner must serve notice of that order on the offender, and if the offender objects within 28 days, must hear the offender before confirming, varying or revoking the order (s 7A(3)-(4F)). The Commissioner may reduce the amount having regard to the offender's financial means and any other relevant matters (s 7A(4H)). The Commissioner must consider any further information that arises after an interim award and may make further interim awards (s 5(6)). Under s 6B, the Commissioner may deduct from an award any pecuniary penalty owed to the Crown, any compensation levy under the Victims of Crime Compensation Act 1994, any unpaid compensation order under the Sentencing Act 1997, or any compensation order under s 7A. For Part 3, the Commissioner (acting as a judge) has duties to ensure procedural fairness when making restraining and forfeiture orders - for example, the Director must give notice to the defendant and other interested persons (ss 17(2), 25(4)). A judge making a restraining order must satisfy conditions in s 18(1) - that applications for awards are likely, the total is likely to exceed $100,000, and the defendant is likely to be subject to damages or compensation recovery proceedings. The judge may impose conditions to provide for the defendant's reasonable living expenses, maintenance of assets, and criminal defence costs (s 18(4)). Under s 23, a restraining order lasts 12 months but can be extended. A forfeiture order under s 27 requires similar satisfaction and may include conditions for the defendant's family and dependants.

Applicants have rights: they may appear before the Commissioner personally or by an approved representative (s 7(4)). They may be heard on any matter other than the quantum if the Commissioner offers an award in consented terms (s 7(10)). They have the right to seek an extension of the three-year limitation period for special circumstances (s 7(1C)), though for child sexual abuse claims no limitation period applies (s 7(1D)). They are entitled to an interim award if the Commissioner lacks sufficient information to make a final determination (s 5(6)). Offenders have rights: under s 7A, they must receive notice of a provisional order and have 28 days to object; if they object, they are entitled to a hearing. Under Part 3, a convicted person may apply for variation of a restraining order (s 24(2)(b)) and, if a forfeiture order is discharged because the conviction is quashed, may apply to the Attorney-General for return of property or payment of proceeds (s 31). Section 10 states that a decision of the Commissioner is final and no appeal lies, which is a limitation on rights but also provides finality.

The Act creates several criminal offences with specific penalties. Under s 8(2), it is an offence to publish a report of proceedings before the Commissioner in any newspaper, periodical, book, electronic form, or television/radio broadcast, with a penalty not exceeding 5 penalty units. Under Part 3, s 20 makes it an offence to knowingly contravene a restraining order by disposing of or dealing with property subject to the order; penalty for a body corporate is a fine not exceeding 500 penalty units, and for an individual a fine not exceeding 100 penalty units or imprisonment for up to 5 years, or both. Section 22 makes it an offence to obstruct, hinder, threaten or intimidate the Public Trustee or any other person executing a restraining order; penalty for a body corporate is up to 100 penalty units, for an individual up to 20 penalty units or imprisonment for up to 2 years. Section 37 creates an offence for contravening a production order without reasonable excuse, or producing a document known to be false or misleading in a material particular without indicating the falsity and providing correct information. The penalty mirrors s 20: up to 500 penalty units for a body corporate and up to 100 penalty units or 5 years imprisonment for an individual. Note that s 36 provides a use immunity: documents produced under a production order are not admissible against the person in criminal proceedings (except for s 37 proceedings). The primary enforcement mechanism for recovering compensation from offenders is via s 7A. Once a provisional order is confirmed or varied, it becomes a fine payable under the Monetary Penalties Enforcement Act 2005 (s 7A(4G)). The Director of Monetary Penalties Enforcement Service can then enforce it using the full suite of fine enforcement powers, including garnishee orders, property seizure, and driver licence suspension. The Commissioner must provide the Director with a sealed copy including the offender's full name, date of birth, residential or postal address, amount, and effective date (s 7A(4K)). The Act also has a clawback mechanism: if a victim later recovers damages or compensation from civil proceedings, that sum is deemed held in trust for the Treasurer until the award is repaid (s 9(2)). If judgment for the Crown has already been entered under s 7A, the judgment debt is reduced by the amount repaid (s 9(2A)). The Treasurer may relinquish these rights in whole or part if the Attorney-General considers it just (s 9(3)). These provisions ensure the Fund is reimbursed and offenders ultimately bear the cost. The Act also enables set-off: under s 6B, the Commissioner can deduct outstanding pecuniary penalties, compensation levies, and unpaid compensation orders from any award made to the applicant. For Part 3, a judge may set aside a disposition of property that contravenes a restraining order or is not for sufficient consideration or not in favour of a good faith purchaser (s 21). The State may also take possession of forfeited property and register itself as owner (ss 28-29). Property vesting in the State is subject to existing charges and encumbrances (s 28(b)).

The Act expressly excludes compensation for death or injury caused by or arising out of the use of a motor vehicle within the meaning of the Vehicle and Traffic Act 1999 (s 6(1)(a)). This preserves the mandatory third-party insurance scheme for road accidents. The Act also prohibits awards for exemplary, vindictive or aggravated damages (s 6(1)(b)), reinforcing that awards are compensatory only, not punitive. Loss of or damage to property is not compensable (s 6(1)(c)) - the scheme is limited to personal injury and death. The Act interacts with workers' compensation schemes: s 6(1)(d) prohibits compensation for matters for which compensation has been paid or is payable under a "compensation law", defined as any law of the State, another State, a Territory or the Commonwealth that relates to employer-paid compensation for employee death or injury. This prevents double dipping. Similarly, expenses claimable under Part II of the Commonwealth Health Insurance Act 1973 or from a health benefits organisation under the National Health Act 1953 are excluded (s 6(1)(e)). The Act preserves common law and statutory rights: s 9(1) provides that an award does not affect enforcement of any other right or remedy the victim may have. However, if the victim later recovers damages or compensation from civil proceedings, that amount is held in trust for the Treasurer to reimburse the Fund (s 9(2)). The Act also references the Sentencing Act 1997: s 6B(1)(c) allows deduction from an award of any unpaid compensation order made against the applicant under s 68 of that Act. The Victims of Crime Compensation Act 1994 is referenced for levies that may be deducted from awards (s 6B(1)(b)). The Monetary Penalties Enforcement Act 2005 is the enforcement mechanism for confirmed provisional orders under s 7A(4G). Part 3 interacts with the Crime (Confiscation of Profits) Act 1993: the Criminal Injuries Compensation Fund receives money from the Crime (Confiscation of Profits) Account under s 79(7) of that Act (s 11(2)(d)). The Relationships Act 2003 is incorporated by reference to define "personal relationship" for related victim status (s 2(1)). The Land Titles Act 1980 is relevant for registration of restraining orders over land: s 19(2) provides that a restraining order over land under the Land Titles Act does not take effect until a priority notice has been lodged. For forfeiture orders over land, s 29 allows the State to be registered as owner upon application by the Attorney-General. The Supreme Court Act 1959 is disapplied: s 3 provides that s 5K of that Act does not apply to functions of the Registrar under this Act. The Criminal Code is directly referenced in the definition of "offence" and "serious offence" - the list of Criminal Code sections determines which crimes qualify. The Act also interacts with the civil procedure of the Supreme Court, as the Commissioner has the powers of an Associate Judge, Registrar or Deputy Registrar.

The Act as presented contains detailed amendment notes in the legislative source. It was originally enacted as the Victims of Crime Assistance Act 1976 and commenced on a date fixed by proclamation. Major amendments include the insertion of Part 1 heading and Part 2 heading by No. 47 of 1996, which also inserted Part 3 (Orders Over Property) and Part 4 (Miscellaneous). The interpretation section (s 2) was amended by No. 15 of 1993 to add the definition of "dependant" and adjust the Fund definition. The Commissioner appointment provisions (s 2A) were inserted by No. 10 of 2001, creating the office of Criminal Injuries Compensation Commissioner, and later amended by No. 36 of 2017 to refer to Australian lawyers of at least five years' standing and to include Associate Judges. Section 3 was substituted by No. 10 of 2001. Section 4 underwent substantial amendments: it was substituted by No. 23 of 2005 (a major rewrite), and subsections (1A) and (1B) were inserted by No. 27 of 2015 to allow funeral expenses for deaths occurring on or after that amendment's commencement. Section 5 has been amended multiple times: the original victim behaviour provision (s 5(3)) was inserted by No. 28 of 1988; s 5(9) (application of Act as in force at claim lodgement) was inserted by No. 24 of 1991; s 5(10) was inserted by No. 32 of 2023 to allow the greater of the cap at lodgement or at determination. Section 6 was substituted by No. 23 of 2005. Section 6A (limits on awards) was inserted by No. 23 of 2005 and amended by No. 27 of 2015 to add funeral expense caps. Section 6B (deductions) was inserted by No. 23 of 2005. Section 7 (procedure) was substantially amended: subsections (1A)-(1C) (3-year limit) inserted by No. 23 of 2005; subsection (1D) (no limit for child sexual abuse) inserted by No. 2 of 2023, along with subsections (11)-(12) making those changes retrospective. Section 7A (recovery from offender) was inserted by No. 94 of 1984 and significantly amended by No. 13 of 2012 to introduce a detailed object-and-confirm procedure with notice requirements. Section 8 was amended by No. 38 of 2015 to include publication in electronic form. Section 10 (finality) was amended by No. 10 of 2001. Section 11 (Fund) was substituted by No. 15 of 1993 and amended by No. 4 of 2017 (Public Account references). Section 12 (exclusion of pre-commencement conduct) remains original. Part 3 was inserted by No. 47 of 1996; its definitions have been amended by No. 66 of 2007 (Director), No. 76 of 2003 (production order), and No. 4 of 2017 (victims fund account). Sections 40A and 40B were inserted later: s 40A by No. 43 of 2006 (protection from liability), s 40B by No. 32 of 2023 (validating higher awards made after 15 December 2021). The Act includes no formal commencement proclamation noted in the text.

The Act itself does not contain any references to court cases, and the source text provided does not name any judicial decisions. However, several provisions bear on litigation. Section 7(3) provides that proof of conviction of any person for an offence is conclusive that the offence has been committed, unless an appeal is pending or a new trial has been directed. This means that in compensation proceedings, the applicant does not need to re-litigate the fact of the offence if a conviction exists. The Commissioner has exclusive jurisdiction over compensation awards, and s 10 declares that a decision of the Commissioner is final and no appeal lies. This provision has been the subject of judicial interpretation in Tasmania, as it ousts the ordinary appellate jurisdiction of the Supreme Court. However, the Act does not preclude judicial review on administrative law grounds (such as jurisdictional error, denial of natural justice, or error of law on the face of the record), as s 10 only removes the right of appeal, not the supervisory jurisdiction of the Supreme Court. The Commissioner's discretion under s 5(1) is broad, but must be exercised within the statutory framework. Section 5(3) requires the Commissioner to have regard to any behaviour, condition, attitude or disposition of the victim that contributed to the injury or death - this has likely been the subject of litigation over what constitutes "contributed" and how much weight to give. Section 5(4) concerning adequate civil remedy may lead to disputes about whether the applicant has an adequate remedy and whether they have taken proper action. Under Part 3, the Director may apply to a judge for orders; these are judicial functions, not administrative, and may be appealed or reviewed within the Supreme Court. Section 31 provides for discharge of a forfeiture order if the conviction is quashed, which directly links the property order to the outcome of the criminal appeal. Section 36(2) gives use immunity for documents produced under a production order - this may be litigated in criminal proceedings to argue that evidence derived from such documents should be excluded. The absence of an appeal under s 10 does not prevent constitutional challenges under the Tasmanian or Commonwealth constitutions. Practitioners should note that the Act's finality clause is a significant litigation issue, as any challenge to a compensation determination would need to be by way of judicial review rather than appeal, with all the procedural hurdles that entails.

Practitioners should be alert to several traps in the Act. First, the three-year limitation period under s 7(1A) runs from the date of the relevant offence, not from the date the injury manifests. For child victims, the period runs from turning 18 (s 7(1B)). However, for child sexual abuse cases, there is no limitation period (s 7(1D)) - this is a 2023 amendment and applies even if the previous limitation had expired (s 7(11)-(12)). The Commissioner may extend the period for special circumstances, but this is discretionary. Second, the Commissioner must have regard to the victim's behaviour, condition, attitude or disposition that contributed to the injury or death (s 5(3)). This can reduce or deny an award even if the conduct was a criminal offence against the victim. For example, provocative behaviour or intoxication might be considered. Third, an applicant who fails to assist police in identifying, apprehending or prosecuting the offender will be denied compensation (s 5(3A)). This is a strict requirement - reasonable excuse might apply but the onus is on the applicant. Fourth, if the applicant has an adequate civil remedy, the Commissioner may refuse an award entirely (s 5(4)). Even if an award is made, any later civil damages recovered must be held in trust for the Treasurer (s 9(2)). This means victims cannot keep both the statutory award and common law damages for the same conduct. Fifth, the Act does not compensate for property loss or damage (s 6(1)(c)). Only personal injury (including mental harm and pregnancy) and death are covered. Sixth, motor vehicle incidents are excluded even if the driver commits a violent assault with the vehicle (s 6(1)(a)). The exclusion is broad - "caused by or arising out of the use of a motor vehicle". Seventh, there is a $100,000 threshold for Part 3 orders (s 18(1)(b), s 27(1)(b)). This threshold applies to the total amount of likely awards and damages. If the likely total is below $100,000, no restraining or forfeiture order can be made, even if the offender has substantial assets. Eighth, the Commissioner may deduct from an award any outstanding penalties, levies, or compensation orders owed by the applicant (s 6B). This means a victim who has unpaid fines or compensation orders may receive a reduced award. Ninth, the definition of "offence" in s 2(1) is limited to violent offences under specified Criminal Code sections. Not all criminal conduct that causes injury qualifies as an "offence" for the purposes of the Act - but the definition of "criminal conduct" is broader and includes any act that constitutes an offence or would but for age, insanity or excuse. This distinction matters because some provisions refer to "offence" (e.g., s 7(1A) time limit runs from the date of the relevant offence) and others to "criminal conduct" (e.g., s 5(2) must prove death/injury was result of criminal conduct). Tenth, the finality clause (s 10) means there is no internal appeal from the Commissioner's decision. Any challenge must be by judicial review in the Supreme Court, which is limited in scope. Eleventh, Part 3 orders apply only to serious offences defined by specific Criminal Code sections - a person convicted of a serious offence after 3 October 1996 is subject to property seizure, but the application must be made within six months of conviction (s 25(3)). Twelfth, a production order under s 34 cannot require a bank to produce its accounting records (e.g., ledgers, daybooks, cashbooks) - only to make them available for inspection (s 34(3)). Thirteenth, a Commissioner is protected from liability for anything done in good faith under the Act (s 40A), meaning unsuccessful applicants cannot sue the Commissioner personally.

For a victim seeking compensation, the first step is to ensure the injury or death resulted from criminal conduct as defined in s 4(1)(a) or (b). The applicant should gather evidence of the offence, including police reports, medical certificates, and witness statements. A statutory declaration will likely be required (s 7(1)). The application must be made within three years of the date of the relevant offence (s 7(1A)), unless the applicant was a child at the time, in which case the period is three years after turning 18 (s 7(1B)). For child sexual abuse, there is no time limit. If the three-year period has expired, an application for an extension should be made with evidence of special circumstances (s 7(1C)). The applicant must cooperate with police and the prosecution - failure to assist in identification, apprehension or prosecution may result in denial of the award (s 5(3A)). The applicant should also be candid about any behaviour that may have contributed to the incident, as the Commissioner will consider this under s 5(3). If the applicant has a potential civil claim (e.g., against a third party or the offender), the Commissioner may refuse or reduce the award. The applicant should discuss with a lawyer whether to pursue civil remedies first. The application should itemise claimed amounts: expenses actually incurred, future medical/counselling costs (with supporting medical evidence), loss of wages (with employer statements), pain and suffering (with medical reports), and for related victims, financial loss if dependent on a deceased primary victim. Funeral expenses are compensable for deaths occurring on or after the commencement of s 4(1A) (1 November 2015). The applicant should supply receipts and quotes. Legal fees for the application are compensable under s 4(2)(e), 4(3)(f) or 4(4)(g). If the Commissioner determines that the matter is complex and an interim award is appropriate, the applicant may receive an immediate payment pending final determination (s 5(6)). The applicant must keep the Commissioner informed of any other compensation received, including from workers' compensation, Medicare, health insurance, or civil settlements - the award will be reduced accordingly. If the applicant receives a civil damages award later, they must hold it in trust for the Treasurer (s 9(2)). For offenders who have been convicted, the Commissioner will automatically make a provisional order for recovery of the award (s 7A(2)). The offender should carefully read the notice of provisional order, which sets out the crime, the date of the award, and a 28-day period to object. If the offender objects in writing with grounds, the Commissioner will hold a hearing and may reduce the amount based on financial means (s 7A(4H)). If no objection, the order becomes a fine enforceable under the Monetary Penalties Enforcement Act 2005. For professionals advising a defendant subject to a restraining order under Part 3, the defendant must not dispose of or deal with property subject to the order (s 20). The defendant may apply to vary the order to allow for living expenses, legal defence costs, and maintenance of assets (s 24). If a forfeiture order is made, the defendant should note that the property vests in the State subject to existing charges (s 28). If the conviction is later quashed, the forfeiture order is discharged and the defendant may apply for return of property or proceeds (s 31). For production orders, the person served must comply unless they have a reasonable excuse, and must not provide false documents (s 37). Any document produced is not admissible against them in criminal proceedings other than for an offence under s 37 (s 36(2)). Practitioners should also note the indexation of penalties: the 5 penalty unit fine under s 8(2) and the various penalty unit amounts in Part 3 are subject to the Sentencing Act 1997's definition of penalty unit.