In New South Wales, certain persons affected by criminal offences may apply for an award for compensation for their suffering from the State Government.
While courts may order defendants to pay compensation or “retribution” directly to victims as part of their penalty, they may be unable to meet these high costs, particularly where they have been ordered to serve prison time for an offence.
There may also be significant barriers in claiming compensation from those who commit serious crimes, or domestic and family violence offences.
Victims’ compensation schemes therefore exist to offer financial support to victims and their families and to provide some means of redressing the loss, damage or injury suffered as a result of crimes.
However, in 2013, following a lengthy review of the Victims’ Compensation Tribunal, the Victims Rights and Support Act 2013 was passed.
This Act abolished the Victims’ Compensation Tribunal and replaced it with the Victims’ Support Scheme, consolidating it with the NSW Civil and Administrative Tribunal.
The Act also resulted in major changes as to how compensation can be claimed, and the amounts of compensation that can be claimed.
These moves have been met with considerable backlash from victims, who claim that awards for compensation for criminal offences have been slashed under the new scheme.
However, the NSW Government has attempted to justify the changes, arguing that victims’ claims will be processed quicker under the new scheme.
So how does the new Support Scheme compare to the previous scheme?
How does the Victims’ Support Scheme work?
Victims and their families may lodge a claim to the Victims’ Support Scheme within 2 years of an alleged criminal offence.
Those deemed to be eligible are allocated a support co-ordinator, who is responsible for conducting an assessment and developing a care package, as well providing access to other support services.
This means that complainants avoid the trauma and expense of making a claim through the court system.
The main focus of the new scheme is not on financial compensation – rather, it is about facilitating easy access to support services such as counselling.
Care packages developed by a victim’s support co-ordinator generally consist of up to five types of assistance: information, support and referral, counselling, financial assistance for immediate needs, financial assistance for economic loss, and a recognition payment to acknowledge the suffering of victims.
The amounts that can be claimed are capped for each of these categories.
Further, the amount received under the recognition payment depends on the type of offence that was suffered.
For example, financially dependent family members of homicide victims may claim up to $15,000, while non-financially dependent parents of these victims can claim up to $7,500.
Smaller amounts can be claimed by victims of assault occasioning grievous bodily harm, sexual assault, indecent assault, robbery and other offences.
Victims are usually required to provide evidence or documentation in order to support their claims.
If a claim is rejected, a claimant is able to lodge an appeal within 28 days of the decision to the Commissioner, who will conduct an internal review of the claim.
If this appeal is unsuccessful, the claimant may lodge an appeal to the Administrative Decisions Tribunal in respect of a recognition payment.
Previously, claimants were able to lodge appeals to the District Court, however this option has now been removed.
How does the new scheme compare to the Victims’ Compensation Tribunal?
Victims and human rights advocates have slammed the new Victims’ Support Scheme, contending that their entitlements have been more than halved.
Sexual assault victim Katrina Keshishian has been particularly vocal in raising her concerns, alleging that her potential recognition payment had been slashed from up to $50,000 under the old scheme, to just $15,000 under the new scheme.
Miss Keshishian commenced her claim six years ago under the old compensation scheme following a brutal gang rape, but due to delays in processing and assessing her claim, the new laws applied retrospectively to determine her claim.
It’s estimated that up to 24,000 victims have had their compensation retrospectively affected by the new laws since 2013.
A host of community legal centres and support groups have also raised concerns about the new scheme, arguing that the tough documentary requirements that claimants must comply with makes it difficult for victims of domestic violence and sexual assault to seek compensation, as they are often hesitant to report these types of matters to police.
Further, the new scheme imposes onerous time limitations as to when claims can be commenced, which are tougher than previous limits.
Under the new scheme, compensation claims must be lodged within 2 years of the alleged incident – however, victims of domestic and family violence have 10 years in which to lodge a claim for a restitution payment.
Claims for emotional and psychological abuse are also excluded under the new scheme unless they meet the definition of “assault,” for which victims may only claim $1,500.
The scheme’s focus on physical abuse also means that victims who have difficulty proving serious criminal offences which result in minimal visible injury, such as strangulation, may be excluded from claiming adequate compensation under the scheme.
Finally, while parents, step-parents and guardians are automatically entitled to recognition payments, the new scheme requires spouses, de-facto partners and children of victims to prove that they were financially dependent on the victim in order to claim a recognition payment.
This adds yet another burden to the already onerous task of claiming compensation, particularly where these people have suffered emotional distress and hardship following the loss of a family member.
Should victims have the right to compensation at all?
Over the years, the Victims’ Compensation Tribunal and the Victims’ Support Scheme have attracted criticism from leading politicians and lawyers.
This has mainly been directed towards the fact that the Tribunal does not allow for alleged perpetrators to play any role in the assessment of claims.
Under the schemes, claims for compensation can be approved even where alleged perpetrators have been found not guilty, or where no charges have been laid.
There have also been complaints about substantial awards being paid to complainants who had been dismissed as unreliable witnesses in court.
Accordingly, it has been suggested that false claims may be made by people in order to access compensation.
There have even been suggestions that complainants have made false complaints to access the scheme.
However, it’s important to approach these criticisms with caution.
Many persons who have sought compensation under the scheme are victims of domestic and family violence, and therefore face considerable hurdles in reporting abuse and pressing charges.
Further, victims of sexual assault such as Miss Keshishian often withdraw allegations as they are unable to bear the emotional burden of reliving the trauma under cross-examination.
Criticism has also centred upon the contention that the scheme is financially unviable.
This is further complicated by the fact that amounts recovered by the scheme from convicted offenders are miniscule, meaning that taxpayers are left to foot the majority of the bill.
Despite these concerns, there is no doubt that the scheme has assisted a significant number of victims, often from impoverished backgrounds or who have suffered lengthy periods of domestic violence, in getting their lives back on track and moving on following the commission of serious offences against them.
Many therefore see the scheme as an important component of the criminal justice system.
