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Victims of Crime (Financial Assistance

Scheme) Bill 2022

Introduction Print

EXPLANATORY MEMORANDUM

General

In 2018, the Victorian Law Reform Commission (VLRC) reported on its

review of the Victims of Crime Assistance Tribunal (VOCAT) and its

governing legislation, the Victims of Crime Assistance Act 1996. The

VLRC made 100 recommendations, with the flagship reform focused on the

creation of a new administrative scheme to replace VOCAT, a trauma-

informed model which would assist victims in their recovery from acts of

violence.

The Victims of Crime (Financial Assistance Scheme) Bill 2022 provides for

a new administrative scheme to deliver financial assistance for victims of

crime in Victoria.

Clause Notes

Part 1—Preliminary

Clause 1 sets out the main purposes of the Bill, which are to—

• provide a new scheme to assist victims of crime in their

recovery from acts of violence; and

• amend the Victims of Crime Assistance Act 1996 in

relation to the scheme set out in that Act; and

• amend the Victims of Crime Commissioner Act 2015

in relation to victims of crime, the functions of the

Commissioner and reporting requirements under that

Act; and

• make consequential amendments to other Acts.

591213 BILL LA INTRODUCTION 5/4/2022

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Clause 2 is the commencement provision. Subclause (1) provides for the

Bill to come into operation on a day or days to be proclaimed.

Subclause (2) provides for a default commencement on

1 December 2024 for any provision of the Bill that has not come

into operation before that date. The Bill contains a delayed

default commencement due to the significant work which first

must be undertaken to establish the scheme following passage of

the Bill, including recruiting and appointing the scheme decision

maker and staff, building information technology systems to

fulfil the requirements of the scheme, and developing published

guidelines.

Clause 3 sets out various definitions for terms used in the Bill. Many

definitions in this clause align with definitions in section 3 of the

Victims of Crime Assistance Act 1996. However, some

definitions have been modernised to better reflect and respond to

the diverse identities, experiences and needs of victims of crime.

Key new or amended definitions inserted by this clause are set

out below.

Close family member has been expanded to mean, in relation to a

deceased primary victim, a person who—

• at the time of the victim's death, had a genuine personal

relationship with the victim and was also—

• the spouse or domestic partner of the victim; or

• a parent, guardian or step-parent of the victim; or

• a child or step-child of the victim; or

• a child of whom the victim was the guardian; or

• a sibling or step-sibling of the victim; or

• is a close family member under subclause (2).

Subclause (2) adds further to the definition, stating that a person

is a close family member if—

• the victim regarded the person as a close family member

at the time of the victim's death; and

• the scheme decision maker considers that it is

reasonable to treat the person as a close family member,

having regard to the circumstances of the relationship.

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This clause expands the definition of close family member in the

Victims of Crime Assistance Act 1996 with the intention to

recognise LGBTQI+ relationships, Aboriginal kinship

relationships, grandparents, aunts, uncles, cousins and any other

individuals whom an applicant considers to be close family

members, if the scheme decision maker considers that

reasonable.

Domestic partner has the same meaning as in the Family

Violence Protection Act 2008, which makes clear that the

gender of a person and whether or not the person is living under

the same roof as another person are irrelevant considerations

when determining whether people are "domestic partners" within

the meaning of the Bill. This definition is intended to align this

Bill with a modern understanding of relationship dynamics,

which are no longer limited to the concept of a 'nuclear family'.

Injury no longer makes reference to a "mental illness or

disorder", unlike the definition in section 3(1) of the Victims of

Crime Assistance Act 1996, and instead means—

• actual physical harm; or

• psychological or psychiatric harm; or

• exacerbation of a pre-existing injury constituted by

actual physical harm or psychological or psychiatric

harm; or

• any trauma associated with the act of violence and

determined by the scheme decision maker to be an

injury.

Removing the need to prove a mental illness diagnosis reduces

stigmatisation which may have otherwise served as a

disincentive for eligible applicants to apply for financial

assistance.

A victim of a sexual offence could claim medical or other

expenses related to an unwanted pregnancy arising from an act of

violence, based on the new definition of injury.

Interim assistance means assistance under section 37.

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Key definitions also used in the Victims of Crime Assistance

Act 1996 include—

act of violence, which means a criminal act or series of related

criminal acts, committed by one or more persons, that occurred

in Victoria and directly resulted in injury to or the death of one

or more persons, regardless of where injury or death occurred;

criminal act, which means an act or omission by a person that—

• constitutes a relevant offence; or

• would constitute a relevant office if the person were not

incapable of being criminally responsible for the act or

omission due to—

• age, mental impairment or any other legal

incapacity that prevents the person from having a

required fault element of the offence; or

• the existence of any other lawful defence;

relevant offence, which means the following offences—

• an offence punishable by imprisonment that involves

assault on, or injury or threat of injury to, a person;

• an offence against Subdivision (8A), (8B), (8C), (8D),

(8E), (8F) or (8FA) of Division 1 of Part I of the

Crimes Act 1958 (which includes rape, sexual assault,

sexual offences against children, incest, child abuse

material offences, sexual offences against persons with

a cognitive impairment or mental illness and sexual

servitude offences) or any corresponding previous

enactment (sexual offences);

• an offence at common law of rape or assault with intent

to rape;

• an offence against Division 4A of Part I of the

Summary Offences Act 1966;

• an offence against section 21A(1) (stalking), 63 (child

stealing) or 63A (kidnapping) of the Crimes Act 1958

or any corresponding previous enactment;

• an offence against section 77A (home invasion) or 77B

(aggravated home invasion) of the Crimes Act 1958;

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• an offence prescribed by the regulations (to allow for

further offences to be included when required in the

future);

• an offence of conspiracy to commit, incitement to

commit or attempting to commit an offence referred to

in paragraphs (a) to (g).

Clause 4 sets out the conditions in which a criminal act is related to

another criminal act for the purposes of the Bill. Related

criminal acts constitute a single act of violence for the purposes

of the Bill.

Subclause (1) provides that a criminal act is related to another

criminal act if—

• the acts were committed again the same person and the

acts—

• occurred at approximately the same time; or

• occurred over a period of time and were

committed by the same person or persons; or

• share some other common factor; or

• the acts contributed to the injury or death of the person.

Subclause (1) also provides for the scheme decision maker to

otherwise consider whether, having regard to the circumstances

of the criminal acts, they ought to be treated as related criminal

acts.

Subclause (2) provides that a criminal act in respect of which

assistance has been paid under this Bill is not related to another

criminal act occurring after assistance was first paid in respect of

that criminal act. This means that, once assistance has been paid

in relation to a criminal act, that criminal act can no longer be

deemed to be related to another criminal act that occurred after

the first act, in respect of which assistance was already paid.

Subclause (3) clarifies that criminal acts may be related to other

criminal acts even if criminal charges arising out of the acts are

tried or heard separately in court.

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Clause 5 provides that the objectives of the Bill are—

• to recognise victims of crime, and the impact of acts of

violence on victims, by providing a respectful forum for

victims to be heard and to have their experiences

properly acknowledged by the State; and

• to assist victims in their recovery from acts of violence

by providing financial assistance; and

• to complement other services provided to victims by the

State; and

• to enable victims to receive financial assistance under

the Bill, noting that such assistance is not intended to

reflect the level of compensation that may be available

to victims at common law or otherwise.

Clause 6 sets out the guiding principles of the Bill and provides that a

person making a decision or taking action under this Bill must

have regard to the guiding principles, which are that—

• the Bill and the scheme that it provides are to support

the wellbeing and dignity of victims;

• victims should be protected from further trauma,

intimidation or distress;

• the needs of victims, including their safety and

wellbeing, are of paramount importance;

• the needs of victims may vary;

• subject to the requirements of the Bill, the scheme

should be accessible and flexible in providing assistance

to victims;

• the scheme should promote cultural safety for victims

who are of Aboriginal or Torres Strait Islander descent

by—

• acknowledging Aboriginal and Torres Strait

Islander people as descendants of Australia's first

people; and

• acknowledging that Aboriginal and Torres Strait

Islander people have been disproportionately

affected by the criminal justice system in a way

that has contributed to criminalisation,

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disconnection, intergenerational trauma and

entrenched social disadvantage; and

• acknowledging that victims of Aboriginal or

Torres Strait Islander descent have cultural rights

and familial and Aboriginal community

connections relevant to assistance under this Bill.

Clause 7 requires that a person making a decision or taking action under this Bill must have regard to the objectives of the Bill and any

relevant principles set out in Part 2 of the Victims' Charter

Act 2006.

Clause 8 clarifies that on the death of a primary victim, the victim ceases

to be eligible for assistance under this Bill and that eligibility for

assistance does not pass to the victim's estate.

Part 2—Eligibility for assistance

Division 1—Primary victims

Clause 9 sets out the definition of a primary victim by expanding on the definition provided by section 7 of the Victims of Crime

Assistance Act 1996 to expand eligibility. In addition to the

definition of primary victim as defined in that Act, the Bill

expands the definition to include—

• a person who is injured as a direct result of hearing or

witnessing, or otherwise being exposed to the effects of,

the act of violence and is under the age of 18 years at

the time of the commission of the act of violence,

namely being children who are exposed to family

violence offences; or

• a person if that person is a member of a category of

persons prescribed by the regulations; and

• for the purposes of special financial assistance if the

person experiences or suffers any significant adverse

effect as a direct result of an act of violence committed

against the person.

Subclause (6) clarifies that a person is not a primary victim (and

therefore not eligible for assistance) if the person committed, and

is criminally responsible for, that act of violence. This also

includes where a person is complicit in the commission of an

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offence in accordance with Subdivision (1) of Division 1 of

Part II of the Crimes Act 1958.

Clause 10 sets out the assistance for which primary victims are eligible.

Subclause (1) provides that a primary victim is eligible for

assistance of up to $60 000 which retains the maximum amount

provided for in the Victims of Crime Assistance Act 1996, but

also now allows a higher amount to be prescribed in regulations.

Additionally, primary victims are also eligible for any special

financial assistance.

Subclause (2) sets out that the amount of assistance to a primary

victim may be made up of amounts actually incurred or

reasonably likely to be incurred for—

• expenses for reasonable counselling services; and

• reasonable medical expenses as a direct result of the act

of violence;

• loss of earnings suffered by primary victim up to

$20 000 or a higher prescribed amount as a direct result

of the act of violence; and

• expenses for loss of or damage to clothing worn at the

time of the commission of the act of violence; and

• reasonable safety-related expenses as a direct result of

the act of violence.

Subclause (3) provides that, in exceptional circumstances, a

primary victim is eligible for other reasonable expenses to assist

the primary victim's recovery from the act of violence. This

assistance must be within the $60 000 limit provided for in

Subclause (1).

Subclause (4) provides that, except for expenses incurred

through loss of or damage to clothing worn at the time of the act

of violence or safety-related expenses, a primary victim is not

entitled to assistance for expenses incurred through loss of or

damage to property. This replicates section 8 of the Victims of

Crime Assistance Act 1996 which also excludes expenses

incurred through loss of or damage to property from the

categories of assistance available to victims.

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Clause 11 Subclause (1) sets out the criteria for a primary victim to be eligible for special financial assistance in addition to other

assistance available to primary victims.

Subclause (2) sets out the amount of special financial assistance

to be—

• the minimum amount prescribed by the regulations in

relation to the relevant category of act of violence if the

scheme decision maker is satisfied that the applicant has

experienced or suffered any significant adverse effect as

a direct result of the act of violence; and

• an increased amount up to the maximum amount

prescribed by the regulations in relation to the relevant

category of act of violence if the scheme decision maker

is satisfied that the applicant has suffered any injury as

defined in clause 3(1) as a direct result of the act of

violence.

Subclause (3) confirms that regulations may prescribe an act of

violence or a class of act of violence as a category A, B, C or D

act of violence and prescribe minimum and maximum amounts

in relation to each category of acts of violence.

Subclause (4) provides that the scheme decision maker may be

satisfied that an act of violence of a particular category was

involved even though no person has been charged with, or found

guilty or convicted of, an act of violence of that category or a

different category in relation to the injury.

Clause 12 provides that the regulations may prescribe categories of primary victims who are taken to have suffered an injury as a result of, or

in connection with, an act of violence without having to provide

any evidence of that injury. For certainty, victims will need to

provide evidence of injury, however, this clause permits

regulations to be made in the future to remove this requirement

for certain categories of primary victims.

Division 2—Secondary Victims

Clause 13 sets out the definition of a secondary victim by reflecting the section 9 of the Victims of Crime Assistance Act 1996, to be a

person who is—

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• present at the scene of an act of violence and who is

injured as a direct result of witnessing that act; or

• injured as a direct result of subsequently becoming

aware of an act of violence and is the parent or guardian

of the act of the primary victim was under the age of 18

years at the time of the commission of the act of

violence.

Subclause (3) clarifies that a person is not a secondary victim

(and therefore not eligible for assistance) if the person

committed, and is criminally responsible for, that act of violence.

This also includes where a person is complicit in the commission

of an offence in accordance with Subdivision (1) of Division 1 of

Part II of the Crimes Act 1958.

Clause 14 sets out the assistance for which secondary victims are eligible.

Subclause (1) provides that a secondary victim is eligible for

assistance of up to $50 000 which retains the maximum amount

provided for in the Victims of Crime Assistance Act 1996 but

also now allows a higher amount to be prescribed in regulations.

Subclause (2) sets out that the amount of assistance to a

secondary victim may be made up of amounts actually incurred

or reasonably likely to be incurred for—

• expenses for reasonable counselling services; and

• reasonable medical expenses as a direct result of the act

of violence.

Subclause (3) confirms that, in exceptional circumstances and

within the $50 000 limit, a secondary victim is eligible for—

• up to $20 000 for loss of earnings suffered, or

reasonably likely to be suffered, by the secondary

victim as a direct result of witnessing, or becoming

aware of, the act of violence; and

• an amount for any additional expenses actually and

reasonably incurred, or reasonably likely to be incurred,

by the secondary victim to assist the secondary victim's

recovery from witnessing, or becoming aware of, the act

of violence.

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Subclause (4) clarifies that a secondary victim is not entitled to

assistance for expenses incurred through loss of or damage to

property.

Division 3—Related victims

Clause 15 sets out that related victim is a person who at the time of the occurrence of the act of violence—

• was a close family member of the deceased primary

victim; or

• was a dependent of the deceased primary victim; or

• had an intimate personal relationship with the deceased

primary victim.

This definition reflects the section 11 of the Victims of Crime

Assistance Act 1996 which provides for the definition of a

related victim under that Act.

Subclause (2) clarifies that a person is not a related victim (and

therefore not eligible for assistance) if the person committed, and

is criminally responsible for, that act of violence. This also

includes where a person is complicit in the commission of an

offence in accordance with Subdivision (1) of Division 1 of

Part II of the Crimes Act 1958.

Clause 16 sets out the assistance for which related victims are eligible.

Subclause (1) provides that a related victim is eligible for

assistance of up to $50 000 or a higher amount prescribed in

regulations. Unlike in the Victims of Crime Assistance Act

1996, there is no related victim pool of financial assistance that

may be awarded to all the related victims of any one primary

victim.

Subclause (2) sets out that the amount of assistance to a related

victim may be made up of amounts actually incurred or

reasonably likely to be incurred for—

• reasonable counselling services; and

• reasonable medical expenses actually incurred, or

reasonably likely to be incurred, as a direct result of the

death of the primary victim; and

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• distress experienced, or reasonably likely to be

experienced, as a direct result of the death of the

primary victim; and

• loss of money that, but for the death of the primary

victim, the related victim would have been reasonably

likely to receive from the primary victim during a

period of up to 2 years after that death; and

• other reasonable expenses as a direct result of that

death.

Subclause (3) confirms that, in exceptional circumstances and

within the $50 000 limit, a related victim is eligible for expenses

actually and reasonably incurred, or reasonably likely to be

incurred, by the related victim to assist the related victim's

recovery from the death of the primary victim of the act of

violence.

Subclause (4) provides that a related victim is not entitled to

assistance for expenses incurred through loss of or damage to

property.

Division 4—Funeral expenses

Clause 17 sets out that a person may be paid assistance to cover funeral expenses incurred as a direct result of the death of the primary

victim.

Subclause (2) clarifies that if the person is also secondary victim

or related victim, assistance for funeral expenses is in addition to

any other assistance paid under Division 2 or 3. A person does

not have to be a secondary or related victim to apply for funeral

expenses. Under clause 58, the scheme decision maker will be

empowered to make and publish guidelines as to the assistance

available to victims in the context of funeral expenses.

Division 5—Limits on assistance

Clause 18 subclause (1) requires the scheme decision maker to take into account, and reduce the amount of assistance by, the total

amount of—

• any damages that the person has recovered at common

law for the loss, expense or other matter for which the

assistance is sought; and

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• any compensation, assistance or payments of any other

kind that the person has received for the loss, expenses or

other matter for which the assistance is sought; and

• any amount of financial assistance that the person has

been awarded if they were an eligible train driver

following fatal incidents under section 12 of the

Transport (Compliance and Miscellaneous) Act 1983

in relation to the incident to which the assistance relates.

Further, subclause (1)(b) provides that, subject to subclause (2),

the scheme decision maker may take into account and reduce the

amount by the total amount of—

• any damages that the person is likely to recover at

common law for the loss, expense or other matter for

which the assistance is sought; and

• any compensation, assistance of payments of any kind

under any scheme, whether statutory or non-statutory,

including that managed by the Transport Accident

Commission and the Victorian WorkCover Authority

and that established by the Police Assistance

Compensation Act 1968 and any predecessor of any

such schemes that the person is likely to receive for the

loss, expense or other matter for which the assistance is

sought; and

• any payments under any insurance policy (including life

and health insurance) or superannuation scheme that the

person is likely to receive for the loss, expense or other

matter for which the assistance is sought.

Subclause (2) provides that, in determining the amount of special

financial assistance or an amount of assistance under clause

16(2)(c), the scheme decision maker must not take into account

any payments under any insurance policy (including life and

health insurance) or superannuation scheme that the person has

received or has not received but is entitled to receive, or would

be entitled to receive if the person applied for them, for the loss,

expense or other matter for which the assistance is sought.

Payments received under the National Redress Scheme

constituting compensation cannot be taken into account under

this clause.

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Clause 19 deals with what constitutes loss of earnings. Assistance to a

primary or secondary victim for loss of earnings is for earnings

lost by the primary or secondary victim as a direct result of total

or partial incapacity for work during a period of up to 2 years

after the occurrence of the act of violence.

Clause 20 states that a person is eligible to apply for, or receive, assistance

in respect of a single act of violence in one capacity only (for

example, a person cannot apply as a primary victim and a related

victim).

Part 3—Applying for and receiving assistance

Division 1—Applying for assistance

Clause 21 sets out the framework for applications to be made to the scheme

decision maker for assistance.

Subclause (1) entitles a primary victim, a secondary victim or a

related victim of an act of violence to apply to the scheme

decision maker for assistance.

Subclause (2) entitles a person who has incurred funeral

expenses as referred to in clause 17 to apply to the scheme

decision maker for assistance under that clause.

Subclause (3) provides that parents and guardians, or another

person whom the scheme decision maker considers to be

appropriate, may make an application to the scheme decision

maker on behalf of a person who is entitled to apply for

assistance but is under the age of 18.

Subclause (4) provides that applications may be brought on

behalf of a person who is a represented person within the

meaning of the Guardianship and Administration Act 2019 by

the guardian or administrator appointed under that Act. This

would include, for example, the State Trustees where they have

been appointed as the administrator for a person.

Subclause (5) provides that an application may be made on a

person's behalf by any person if they need assistance in doing so

if the scheme decision maker considers that person appropriate.

Subclause (6) makes clear that a victim is still the applicant even

if the application is made on the victim's behalf by another

person.

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Clause 22 deals with the form and content of applications made to the scheme decision maker.

Subclause (1) provides that an application—

• must be in the form approved by the scheme decision

maker; and

• must be accompanied by any documentary evidence

indicated in the form as being required to accompany

the application (such as medical certificates or

statements of earnings); and

• must contain an authorisation for the scheme decision

maker to—

• obtain any other information or documentation

that the scheme decision maker considers

necessary in order to decide the application,

including any information about any application

made by the applicant for damages,

compensation, assistance or payments of any

kind under another scheme and any decision

made; and

• share information about the application with the

scheme decision maker under another scheme

that provides for damages, compensation,

assistance of payments of any kind; and

• share information about the application for the

purposes of a complaint under clause 59; and

• must contain an acknowledgement that the applicant is

aware of the general circumstances in which the

applicant may need to repay assistance under the Bill;

and

• must state whether or not the act of violence has been

reported to the police and, if it has not, must be

accompanied by a statutory declaration made by the

applicant or the person applying on behalf of the

applicant setting out the circumstances of the act of

violence and the reasons for not reporting the matter to

police; and

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• must contain any other information or evidence required

by the scheme decision maker.

Subclause (2) confirms that a statutory declaration in relation to

not reporting to the police is not required if the applicant is in a

prescribed special reporting category.

Clause 23 deals with time limits for making applications for assistance.

Subclause (1) requires that an application must be made within

3 years after the occurrence of the act of violence, or in the case

of an application by a related victim or a person who has

incurred funeral expenses, within 3 years after the death of the

primary victim. This increases the current time limit of 2 years

as provided for in section 29 of the Victims of Crime

Assistance Act 1996.

Subclause (2) states that, subject to subclause (3), an application

by or on behalf of a victim who was under the age of 18 years

when the act of violence occurred may be made within 3 years

after the applicant turns 18 years of age.

Subclause (3) states that an application made by or on behalf of a

victim may be made at any time after the occurrence of an act of

violence if the victim was under the age of 18 years when the act

of violence occurred, and the act of violence consisted of or

involved child abuse or family violence.

Subclause (4) states that an application by or on behalf of a

victim may be made within 10 years after the occurrence of an

act of violence if the victim was at least 18 years old when the

act of violence occurred and the act of violence consisted of or

involved a sexual offence or family violence. This increases the

current time limit of 2 years as provided for in section 29 of the

Victims of Crime Assistance Act 1996.

Subclause (5) states that the regulations may prescribe

circumstances in which an application may be made by a victim

at any time after the occurrence of an act of violence for

assistance for expenses actually incurred, or reasonably likely to

be incurred, for reasonable counselling services.

Subclause (6) states that, for the purpose of this clause, an act of

violence that consists of a series of related criminal acts occurs

on the occurrence of the last of those criminal acts.

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Clause 24 sets out the circumstances in which the scheme decision maker

may consider and decide an application made out of time if the

scheme decision maker considers that it is appropriate to do so.

The discretion to consider and decide an application made out of

time is broad in recognition of the unique needs of victims and

the myriad of reasons or factors the scheme decision maker

should have regard to as to why a victim may legitimately have

previously been unable to make an application for assistance

within time.

Clause 25 entitles an applicant to represented or assisted by a legal practitioner or any other person in relation to an application.

Subclause (2) provides that a legal practitioner or other person is

not entitled to—

• charge an applicant, or recover from an applicant, any

legal or other costs or amounts for representing or

assisting the applicant in relation to the application,

except to the extent allowed by the scheme decision

maker; or

• claim a lien in respect of any legal or other costs or

amounts on any amount of assistance granted to an

applicant; or

• withhold any legal or other costs or amounts from any

amount of assistance granted to an applicant.

Subclause (3) clarifies that this is despite anything to the contrary

in the Legal Profession Uniform Law (Victoria) or the Legal

Profession Uniform Law Application Act 2014. A decision on

whether to pay reasonable legal or other costs is not a reviewable

decision under the Bill.

Clause 26 entitles an applicant to, at any time before an application is decided, amend or withdraw their application by written notice to

the scheme decision maker. It is not intended that the

withdrawal of an application would prevent the person from

making another application for assistance subsequently as long

as they are within the time limits provided in clause 23.

Clause 27 deals with the process for an application to lapse. This clause balances the need to ensure that the scheme can progress

applications and avoid the accumulation of a backlog of pending

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applications, while also allowing applicants to subsequently file

a fresh application in the future.

Subclause (1) provides that the scheme decision maker may give

the applicant written notice that the application will lapse in 6

months unless the applicant responds to the written notice within

the 6 months.

Subclause (2) provides that where the applicant has been

provided written notice, their application will lapse if 6 months

passes, and the person has not responded to the notice.

Subclause (3) confirms that the mere fact that an application has

lapsed will not prevent the same applicant from making a fresh

application for assistance in future, within the relevant time

periods provided in clause 23.

Division 2—Considering and deciding applications

Clause 28 establishes that applicants must satisfy the scheme decision maker to the civil standard of proof (on the balance of

probabilities) about the existence of any matter relevant to

deciding an application.

Subclause (2) empowers the scheme decision maker to determine

that an act of violence occurred regardless of any concurrent

legal proceedings underway.

Clause 29 requires the scheme decision maker to act with as much

expedition as the requirements of the Bill and a proper

determination of the application permit. This clause supports the

provision of timely assistance to victims of crime as one of the

overarching priorities of the Bill.

Subclause (2) prohibits the scheme decision maker from delaying

reaching a decision on an application only because a legal

proceeding, whether civil or criminal, is pending in a court

relevant to the application. However, the scheme decision maker

may delay deciding an application if they reasonably believe that

any information or document in, or accompanying, the

application was fraudulent or knowingly false or misleading.

This balances the scheme decision maker's duty to act

expeditiously while empowering the scheme decision maker to

delay reaching a decision where further relevant information is

required to determine an application for assistance.

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Clause 30 provides that a scheme decision maker must decide applications

without conducting oral hearings. Removal of hearings removes

the need to subject applicants to the potentially traumatic

experience of attending hearings.

Clause 31 requires the scheme decision maker to refuse an application if satisfied that—

• the applicant is not a member of a prescribed category

of persons and the scheme decision maker is satisfied

that—

• the act of violence was not reported to the police

within a reasonable time; or

• the applicant failed to provide reasonable

assistance to any person of body duly engaged in

the investigation of the act of violence or in the

arrest or prosecution of any person by whom the

act of violence as committed or alleged to have

been committed; or

• the application is made in collusion with the person who

committed or is alleged to have committed the act of

violence; or

• an earlier application for assistance by the applicant in

any capacity arising from the same act of violence has

been made, whether or not the earlier application has

been determined.

Subclause (2) confers a broad discretionary power on the scheme

decision maker to consider whether there were special

circumstances for the act of violence not being reported to police

within a reasonable time, or reasons why the applicant failed to

provide reasonable assistance to investigative or prosecutorial

bodies. This subclause aims to remove barriers previously faced

by victims of sexual offences and family violence and the

specific reasons as to why victim-survivors of these categories of

offending may face unique hurdles or barriers in reporting the

violence committed against them.

In the future, regulations could prescribe certain cohorts of

victims in a special reporting category that would not have to

report the act of violence to police.

20

Clause 32 sets out non-exhaustive factors to which the scheme decision maker may have regard when considering whether an act of

violence was reported to the police within a reasonable time.

In recognition of the unique circumstances faced by

victim-survivors, factors to which the scheme decision maker

may have regard include but are not limited to whether the

applicant has an intellectual disability within the meaning of the

Disability Act 2006, the age of the victim, whether the person

who committed the act of violence was in a position of power,

influence or trust or whether the applicant was threatened or

intimidated by the person alleged to have committed the act of

violence.

Clause 33 sets out certain factors which the scheme decision maker must take into account when considering whether to pay assistance or

refuse an application. These factors include—

• the applicant's character, behaviour (including past

criminal activity) and the number and nature of any

findings of guilt or convictions that the scheme decision

maker considers relevant;

• the attitude of the applicant at any time, whether before,

during or after the commission of the act of violence;

• in the case of an application by a related victim, the

character or behaviour (including past criminal activity,

and the number and nature of any findings of guilt or

convictions, that the scheme decision maker considers

relevant) of the deceased primary victim of the act of

violence;

• any other circumstances the scheme decision maker

considers relevant.

The scheme decision maker has the discretion to consider the

relevance or non-relevance of an applicant's criminal history.

This clause is intended to ensure that the scheme decision maker

could consider an application as to whether the applicant was

involved in the commission of the offence. It is not intended that

an applicant's criminal history is considered unless it is otherwise

relevant.

21

Under clause 58, the scheme decision maker will be empowered

to make and publicly publish guidelines as to when an applicant's

criminal history may be relevant in considering an application

for financial assistance.

Clause 34 requires the scheme decision maker, after considering an application against the statutory criteria, to decide whether to pay

assistance to the applicant or refuse the application. Imposing an

obligation on the scheme decision maker to reach a decision after

considering the application goes to the intent that applications be

considered in a timely manner.

Subclause (2) provides that the scheme decision maker must be

satisfied of the following criteria in order to make a decision to

pay assistance—

• an act of violence has occurred; and

• the applicant is a primary victim, secondary victim or

related victim who has incurred funeral expenses as a

direct result of the death of such a primary victim; and

• the applicant is eligible to receive the assistance.

Under subclause (3) the scheme decision maker may impose any

conditions which they consider appropriate on the payment of

assistance. This can include that the assistance be repaid in

certain circumstances and allows assistance to be held on trust

for the benefit of the applicant. Examples of the types of

conditions which the scheme decision maker can impose are

non-exhaustively provided for in subclause (4).

Subclause (5) confirms that it is not a prerequisite for the scheme

decision maker to decide to grant assistance for there to have

been charges laid or a finding of guilt made or conviction

recorded in relation to the act of violence.

Clause 35 compels the scheme decision maker to provide an applicant with written notice of a decision. Subclause (2) sets out minimum

components of the notice, which are—

• state whether the decision is to pay assistance to the

applicant or refuse the application; and

• state the reasons for the decision, including the reasons

for imposing any conditions; and

22

• give details of the applicant's right to internal review or

Victorian Civil and Administrative Tribunal (VCAT)

review of the decision, and

• if the decision is to pay assistance, state—

• the total amount payable (including breakdowns,

if applicable); and

• any conditions on the payment of assistance.

Division 3—Payment of assistance

Clause 36 sets out the form of payment of assistance to be made to applicants, providing the scheme decision maker with flexibility

to pay assistance in whole or in part to the applicant or to any

other person for the benefit of the applicant. This allows funds

to be paid to third parties, such as medical providers, on behalf of

the applicant and affords flexibility to the scheme decision maker

to tailor the assistant on a case-by-case basis.

Subclause (2) confirms that amounts of assistance to a victim for

expenses not yet incurred are only payable on the submission of

an invoice or receipt relating to the particular expense for

verification purposes.

Subclause (3) empowers the scheme decision maker to specify

terms and conditions to be complied with before any instalment

is paid.

Subclause (4) allows the scheme decision maker to defer the

payment of assistance in whole or part pending the period for

applying for internal or VCAT review of the decision to pay the

assistance, and if an application for review is made, until after

the review decision comes into operation.

Subclause (5) states that any assistance not paid to, or for the

benefit of, a person within 10 years after the decision to pay that

assistance ceases to be payable unless it is then held on trust for

that person.

Clause 37 allows the scheme decision maker to pay interim assistance in any circumstances that the scheme decision maker considers

appropriate pending the making of a final decision on an

application. In recognition of the fact that some victim-survivors

may require assistance for immediate or urgent needs, the power

23

to grant this assistance enables the scheme decision maker to

tailor the interim assistance required on a case-by-case basis.

Subclause (2) provides that if interim assistance is paid pending

the outcome of a final decision on the application, and the final

decision is to refuse the application, then—

• upon refusing the application, the scheme decision

maker may require the applicant to repay the amount of

the interim assistance; and

• if it is not repaid, the scheme decision maker may

recover the amount from the applicant as a debt due to

the State.

Pursuant to subclause (3), the scheme decision maker must

deduct the amount of any interim assistance from the amount of

assistance to be paid from any assistance to the applicant on the

application.

Subclause (4) confirms that clauses 34(3) and (4) and 36 apply to

interim assistance, being the scheme decision maker's power to

impose conditions on payment of assistance and to pay

assistance in whole or in part.

Clause 38 empowers the scheme decision maker to pay an amount of assistance to a creditor in respect of reasonable expenses. This

payment acts to reduce the burden on a person who is awarded

assistance by enabling the scheme decision maker to pay an

amount directly to a creditor for a reasonable expense. This

could include making direct payment to a friend of an applicant

who has made payment of a reasonable expense on behalf of the

applicant to satisfy the debt owed by the person awarded

assistance.

Subclause (2) defines the terms creditor and expenses for the

purposes of the clause.

Clause 39 empowers the scheme decision maker to pay an amount to a legal practitioner or other person for the reasonable legal costs

(or other costs) in representing or assisting an applicant in

relation to an application. Under clause 58, the scheme decision

maker may make and publicly publish guidelines as to the

payment of amounts to persons for legal or other costs

24

representing an applicant, including where costs are and are not

considered to be reasonable.

Division 4—Victim recognition

Clause 40 states that, if the scheme decision maker decides to pay assistance under this Bill, then upon the request of a victim, the

scheme decision maker must give the victim a statement on

behalf of the State acknowledging the effects of the act of

violence on the victim and expressing the State's condolences.

The provision of victim recognition statements is one tool for the

State to express its condolences to victims and provide them with

an acknowledgment of the suffering they may have experienced.

Clause 41 entitles victims who have been granted an application for assistance to request the scheme decision maker meet with the

victim on behalf of the State to acknowledge the effects of the

act of violence on the victim and express the State's condolences.

Subclause (2) provides that the scheme decision maker, upon

receipt of a request, may hold a victim recognition meeting after

a decision has been made to pay assistance under this Bill, and

must take all reasonable steps to hold the meeting in private, with

the only permitted attendees being—

• the victim; and

• any support person for the victim; and

• any legal practitioner representing the victim; and

• the scheme decision maker; and

• any other person the scheme decision maker; and

considers necessary or appropriate.

Furthermore, subclause (2) requires that, when holding a victim

recognition meeting, it is done so in a manner which is culturally

safe and protects victims from undue trauma, intimidation and

distress, and prioritises the victim's needs, safety and wellbeing.

Providing victims with a safe and culturally appropriate forum to

meet with an appropriate representative of the State is one tool

for the State to express its condolences to victims and provide

them with an acknowledgment of the suffering they may have

experienced. The individual needs of victims are also reflected

25

by the obligation held by the scheme decision maker to consider

cultural sensitivities or support which ought to be put in place.

Subclause (3) also requires that when a victim recognition

meeting is held, the scheme decision maker must give the victim

the opportunity to read aloud a statement or other document that

sets out the effects of the act of violence on the victim and to

afford the victim the opportunity to discuss those effects with the

scheme decision maker.

Subclause (4) states that anything said or done, or any document

produced, at a victim recognition meeting is not admissible as

evidence in any legal proceeding. This exception is designed to

afford victims the peace of mind that the focus of victim

recognition meetings is providing a safe space for the act of

violence to be acknowledged and the State to express their

condolences for the experience of the victim. In light of this,

nothing said or done can be entered into evidence in any legal

proceedings.

Division 5—General provisions

Clause 42 Subclause (1) allows a person to whom, or for whose benefit, assistance is paid, on or after being notified of the decision to

pay the assistance, to assign to the State their right to recover

from any other person, by civil proceedings, damages or

compensation in respect of the injury or death to which the

assistance relates. This subclause empowers the State in certain

circumstances to pursue offender recovery of amounts of

assistance to improve sustainability of the scheme. The scheme

decision maker retains a discretion as to whether or not to pursue

offender recovery.

Subclause (2) states that money recovered by the State in the

exercise of a right assigned to it must be dealt with it as

follows—

• the amount of assistance paid to the assignor or the

amount recovered (if less), must be paid into the

Consolidated Fund; and

• the balance, if any, must be paid to the assignor.

26

Subclause (3) states that the scheme decision maker retains the

discretion to decline to take or continue the recovery action

under a right assigned to the State if the scheme decision maker

considers that there is a risk to the safety of any person if the

action is taken or continued, or there is no reasonable prospect of

success, or in any other circumstances that the scheme decision

maker considers relevant.

Empowering the scheme decision maker to retain the discretion

to consider and determine whether to pursue offender recovery

action on a case-by-case basis enables the scheme decision

maker to consider whether, amongst other considerations, a

particular offender has the means to repay the amount of

assistance paid.

Clause 43 provides that a decision to pay assistance to a person, or the

payment of that assistance, does not affect the right of a person

to recover from any other person, by civil proceedings or

otherwise, any damages, compensation, assistance or payments

of any kind.

Part 4—Review, variation and repayment of assistance

Division 1—Reviews

Clause 44 defines a reviewable decision for the purposes of the Division to

be any of the following decisions made by the scheme decision

maker or a delegate of the scheme decision maker—

• a refusal of an application for assistance, including a

decision to require payment of any interim assistance;

• a decision as to the amount of assistance to be paid to an

applicant;

• a refusal to vary assistance under Division 2 of Part 4;

• a decision as to the amount of assistance on an

application for variation under Division 2 of Part 4;

• a decision under Division 3 of Part 4 to require a person

to repay an amount of assistance, including a decision as

to the amount of assistance of the repayment.

A decision made by the scheme decision maker on an internal

review under clause 45 is also a reviewable decision.

27

A decision on whether to pay reasonable legal or other costs in

accordance with clause 39 is not a reviewable decision.

A decision on whether to pay interim assistance in accordance

with clause 37 is not a reviewable decision. However, if the

scheme decision maker refuses an application for assistance and

requires an applicant to repay an interim assistance paid earlier,

the repayment decision is a reviewable decision.

Clause 45 subclause (1) provides that a person whose interests are affected

by a reviewable decision made by a delegate of the scheme

decision maker may apply in writing to the scheme decision

maker for review of the decision.

Subclause (2) prescribes the time period by which an application

for internal review must be made to be 28 days after the day on

which notice of the reviewable decision, including the reasons

for the decision, is given to the person entitled to notice.

However, subclause (3) confers a broad discretion on the scheme

decision maker to extend the time for applying for an internal

review at any time.

Upon receipt of an application, subclause (4) requires that the

internal review be conducted by the scheme decision maker or a

member of staff who holds a more senior position than the

delegate who made the reviewable decision. In recognition of

the fact that any review of a decision maker is a fresh

examination of the application and its merits, it is appropriate

that the review be undertaken by a more senior member of staff

than the original decision maker.

Subclause (5) provides that a decision made by a person

appointed by the scheme decision maker is taken to be a decision

of the scheme decision maker. This enables internal review

decisions to be reviewable by VCAT.

Subclause (6) requires the person conducting the internal review

to affirm or amend the reviewable decision or substitute another

decision for the reviewable decision.

Subclause (7) provides that the scheme decision maker must give

the applicant for internal review written notice of the decision,

including reasons for the decision, as soon as practicable and in

any event within 28 days after the decision. These timeframes

are relevant to avenues for appeal available to an applicant and

28

ensure that an applicant is not disadvantaged by the scheme

decision maker failing to provide them with the necessary

documentation to seek review of the scheme decision maker's

decision.

Clause 46 Subclause (1) provides that a person whose interests are affected by a reviewable decision made by the scheme decision maker

may apply to VCAT for review of the decision. A person whose

interests are affected by a reviewable decision may apply for

external review of the decision once internal review processes

are exhausted. If the original decision was made by the scheme

decision maker, then an internal review of the decision does not

need to have taken place before a person can apply for external

review of the decision.

Subclause (2) provides that an application for review must be

made within 28 days after the day on which notice of the

reviewable decision, including reasons for the decision, is given

to the person entitled to notice. This statutory timeframe for

lodging an application for review aligns with standard

timeframes and encourages timely review of decisions.

Clause 47 provides that, despite anything to the contrary in the Bill or the Victorian Civil and Administrative Tribunal Act 1998, the

following are not persons whose interests are affected by a

reviewable decision—

• persons who received a payment for the benefit of the

applicant under clause 36(1)(a)(ii); and

• creditors referred to in clause 38.

The effect of this clause is that the above persons are not entitled

to seek a review of a decision. A decision to pay assistance,

albeit to a third party, remains for the benefit of the applicant and

is not to be taken to entitle a third-party recipient of payment to

seek review of the scheme maker's decision.

Division 2—Variation of assistance

Clause 48 entitles a person to whom, or for whose benefit, assistance was paid under Part 3 to apply to the scheme decision maker to vary

the assistance.

29

Subclause (2) sets out the statutory criteria for making an

application for variation, being—

• such an application must be received within 10 years

after the day on which the original decision to pay

assistance was made; or

• if the person was under the age of 18 years of age when

the decision to pay assistance was made, an application

for variation may be made at any time until the person

turns 28 years of age; or

• within the longer time period prescribed by the

regulations in relation to any prescribed categories of

applications for variation or in any other prescribed

circumstances.

Subclause (3) empowers the scheme decision maker to vary the

assistance (including the assistance as previously varied) in any

manner that the scheme decision maker thinks fit, whether as to

the conditions of the assistance or by increasing or decreasing the

amount of assistance in some other way. The power is broad in

recognition of the fact that the needs of applicants may change

over time and that, to respond to the needs of victims, the scheme

decision maker needs flexibility and broad powers.

Subclause (4) provides that, in considering an application for

variation, the scheme decision maker must take into account

certain factors including—

• any fresh evidence that has become available since the

decision to pay the assistance was made or the

assistance was last varied; and

• any change of circumstances; and

• any payments received by or payable to the person to

whom, or for whose benefit, a decision to pay assistance

was made; and

• anything else that the scheme decision maker considers

relevant.

The considerations to be taken into account by the scheme

decision maker balance the need to verify the basis on which the

application for variation is sought while affording flexibility to

30

both the scheme decision maker and the applicant for the Bill to

respond to the applicant's changed needs.

Subclause (6) provides that the scheme decision maker remains

bound by the maximum amounts of assistance as in force at the

time the assistance was originally paid. This clarifies that

applications for variations are not fresh applications and do not

displace the maximum award caps.

Clause 49 Subclause (1) states that the scheme decision maker must give a person who applied for variation of assistance under clause 48

written notice of a decision on the application. This encourages

transparency and could also be relevant for an applicant's

decision to apply for an internal review of the decision or to

apply to VCAT for review of the scheme decision maker's

decision.

Subclause (2) prescribes the minimum requirements of the notice

to be given to an applicant, being that the notice must—

• state whether the decision is to vary the assistance or

refuse the application; and

• if the decision is to vary the assistance, to state the

amount of the variation and any conditions of the

variation;

• state the reasons for the decision, including the reasons

for imposing any conditions on the variation; and

• give details of the person's right to internal review or

VCAT review of the decision.

The notice requirements encourage transparency and also are

relevant in an applicant considering whether or not to apply for

internal review or to VCAT.

Division 3—Repayment of assistance

Clause 50 applies if a person who has received assistance subsequently receives any amount that clause 18 would have required the

scheme decision maker to take into account if it had been

received before the decision on the assistance was made.

31

Subclause (2) provides that the scheme decision may require the

person to repay—

• the amount of assistance paid under the Bill if equal or

less than the amount of the damages, compensation,

assistance or other payments subsequently received; or

• the amount of damages, compensation, assistance or

other payments subsequently received, if the amount of

the assistance paid under this Bill is greater.

The scheme decision maker retains the discretion as to whether

or not to decide that assistance must be repaid.

Subclause (3) provides that, in deciding whether to require

repayment, the scheme decision maker may take into account

any matters the scheme decision maker considers relevant.

This aligns with the broad discretion as to whether to require

repayment provided for in subclause (2) in acknowledgement

that the factors which may lead to this decision are likely to be

varied and will by considered on a case-by-case basis.

Subclause (4) states that if assistance has been paid to a person or

for their benefit and the amount of assistance is decreased on

review under Division 1 of Part 4 or variation under Division 2

of Part 4, the scheme decision maker may require the person to

repay the amount by which the assistance is decreased.

Subclause (5) confirms that money not repaid as required by the

scheme decision maker may be recovered by the scheme

decision maker as a debt due to the State by the usual debt

recovery processes available at law.

Clause 51 requires the scheme decision maker to give written notice of a decision under clause 50 to require repayment of assistance,

which must—

• state the amount required to be repaid and the date by

which it must be repaid; and

• state the reasons for the decision; and

• give details of the right to internal review or VCAT

review of the decision.

32

The notice requirement encourages transparency and open

communication and may be relevant to an applicant's decision to

seek internal review of the scheme maker's decision to require a

person to repay an amount under Division 3 or to lodge an

application for review with VCAT.

Subclause (3) permits the scheme decision maker to extend the

date stated in a notice by which an amount must be repaid,

acknowledging that some people may require flexibility with

repayment.

Part 5—Administration

Division 1—Scheme decision maker

Clause 52 establishes the role of scheme decision maker to be employed by the Secretary to the Department of Justice and Community

Safety under Part 3 of the Public Administration Act 2004.

Clause 53 provides that the functions of the scheme decision maker are to—

• administer the scheme for providing assistance to

victims under this Bill, including—

• to receive and decide applications; and

• to pay amounts of assistance; and

• to review decisions on assistance made by

delegates of the scheme decision maker; and

• to administer the recovery and repayment

processes for amounts of assistance paid;

• to provide victim recognition statements and conduct

victim recognition meetings;

• to provide—

• information to victims and others about the

scheme and the support services and assistance

available to assist recovery from the effects of

acts of violence; and

• referrals to those support systems and other

available assistance; and

33

• to publish guidance material and other resources for

victims, support service providers and legal

practitioners in relation to the scheme;

• to conduct education and training, public awareness

activities and research in relation to the scheme;

• to collect and publish annual data and information in

relation to the scheme;

• to make complaints to the appropriate entities about

excessive amounts charged to victims by legal

practitioners, medical practitioners or counselling

service providers;

• to establish a complaints process in relation to the

administration of the scheme, including in relation to

the conduct of the scheme decision maker and members

of staff;

• any other functions conferred on the scheme decision

maker by or under this or any other Act.

Subclause (2) confirms that the complaints process established

by the scheme decision maker must be consistent with the

Charter principles within the meaning of the Victims' Charter

Act 2006.

The functions reflect the varied needs of victims of crime and

their needs as they recover from their experiences. For example,

the scheme decision maker's function to provide information to

victims as well as facilitate referrals to appropriate support

systems ensures that victims are given access to appropriate

support services, such as restorative justice services.

The importance of features of this Bill in providing victims with

a space to have their experience acknowledged by the State is

reflected by the fact that facilitating victim recognition meetings

and statements are expressly included in the scheme decision

maker's functions.

Clause 54 provides that there may be employed by the Secretary to the Department of Justice and Community Safety under Part 3 of the

Public Administration Act 2004 one or more deputy scheme

decision makers and as many other staff as are necessary for the

effective operation of this Act. The flexibility afforded by this

34

provision ensures that appropriate considerations and decisions

made be made to support the scheme decision maker to discharge

their functions under this Bill.

Clause 55 provides that the scheme decision maker, by instrument, may delegate to a member of staff any function of the scheme

decision maker under this or any other Act, other than this power

of delegation. The broad power of delegation allows the scheme

decision maker to ensure that assistance is being provided to

victims as expeditiously as resourcing will allow.

Division 2—Information gathering and sharing

Clause 56 provides that, for the purpose of performing functions under the Bill, the scheme decision maker may obtain information and

documents from any person, request an applicant to provide to

the scheme decision maker any information or documents

relevant to the application and, by written notice, require any

person (other than an applicant) to provide to the scheme

decision maker any information or documents relevant to the

performance of those functions. The scheme decision maker

may also specify in the notice a time period by which the person

must respond.

The scheme decision maker cannot require an applicant to

provide information and can only request information from an

applicant.

It is intended that this clause will provide the scheme decision

maker with information gathering powers so as to be able to

discharge their functions under the Bill. For example, the

scheme decision maker may investigate whether an applicant

applying for financial assistance out of time was experiencing a

pattern of family violence, a consideration under clause 24(f),

and may seek information from Victoria Police or family

violence services to confirm this.

Subclause (2) creates an offence for failing to comply with the

notice to provide information or documents to the scheme

decision maker upon written request and without reasonable

excuse. The maximum penalty for the offence is 10 penalty

units.

35

A person does not commit an offence if the person has a

reasonable excuse for non-compliance with the notice to

produce. This exception acts to preserve privileges and

immunities such as legal professional privilege, privilege against

self-incrimination and public interest immunity.

Subclause (3) enables the scheme decision maker to extend, or

further extend, the period specified in the original notice under

subclause (1)(c) for compliance with the requirement.

Clause 57 provides that the scheme decision maker, or a member of staff, must not disclose any information in their possession relating to

an application except to the extent necessary to perform

functions under this Bill or as otherwise permitted by this

Division.

Subclause (2) defines the instances in which the scheme decision

maker or a member of staff may disclose any information

relating to an application in their possession, being—

• at the applicant's request; or

• to another person at the written request of the applicant;

or

• in accordance with any authorisation provided by the

applicant in the application; or

• in accordance with clause 63, which deals with the

admissibility of scheme materials in legal proceedings;

or

• for the purposes of annual reporting if the information

does not identify, and is not likely to lead to the

identification of, any person; or

• as permitted or required any other law; or

• to a prescribed person or body, or prescribed category of

person or body, for the purpose of performing a

prescribed function.

An example of information sharing by the scheme decision

maker under clause 57(2)(f) would include the scheme decision

maker, if prescribed as an information sharing entity under the

Family Violence Protection Act 2008.

36

This clause is not intended to infringe section 4(1A) of the

Judicial Proceedings Reports Act 1958, which provides that

any person who publishes or causes to be published any matter

that contains any particulars likely to lead to the identification of

a person against whom a sexual offence is alleged to have been

committed is guilty of an offence, whether or not a criminal

proceeding in respect of the alleged offence or offence has

commenced, is being conducted or has been finally determined.

As such, disclosure of information in accordance with this clause

by the scheme decision maker or scheme staff is not intended to

constitute a publication within the meaning of section 4(1A) of

the Judicial Proceedings Reports Act 1958.

The scheme decision maker is not obligated by this clause to

provide the information upon request. This clause is facilitative

and does not compel the scheme decision maker to comply with

such a request. There may be instances in which it is not

appropriate for the scheme decision maker to disclose certain

information, for example, for privacy reasons.

Division 3—General

Clause 58 subclause (1) states that the scheme decision maker may, from time to time, vary and revoke guidelines for the performance of

functions under this Act or for any other matter related to the

scheme for providing assistance under this Act.

The broad discretion to publish guidelines, aimed at increasing

transparency and providing guidance and certainty to applicants

and potential applicants, is further reflected in subclause (2)

which provides examples of the types of guidelines which may

be made by the scheme decision maker, including but not limited

to—

• determining whether a person is a close family member

of a deceased primary victim;

• determining whether criminal acts are related;

• determining the assistance available to victims and for

funeral expenses;

• determining circumstances in which a person may make

an application on another person's behalf;

37

• determining whether to consider and decide applications

made out of time;

• determining whether past criminal activity, findings of

guilt or convictions are relevant to an application;

• imposing conditions on the payment of assistance as to

the circumstances in which the whole or any part of the

assistance must be repaid;

• the payment of assistance to creditors;

• the payment of amounts to persons for legal or other

costs of representing an applicant;

• determining whether to hold victim recognition

meetings;

• determining whether to extend time to apply for internal

review;

• deciding applications for variation of assistance;

• the payment of additional assistance to persons to

whom, or for whose benefit, an award of assistance was

made under the Victims of Crime Assistance

Act 1996.

Subclause (3) provides for publication and availability of

guidelines. It aims to facilitate access to the guidelines by all

victims, whether or not they have the means or ability to access

to the internet.

Subclause (4) requires that, in performance of functions under

this Act, the scheme decision maker and all members of staff

must have regard to any guidelines that are in effect. This

increases accountability and consistency of decision-making in

line with the scheme decision maker's published guidelines.

Clause 59 subclause (1) confirms that the scheme decision maker may

cause a complaint about the costs claimed by a legal practitioner

in connection with an application to be made in accordance with

Chapter 5 of the Legal Profession Uniform Law (Victoria) if

they consider that the amount claimed is not fair or reasonable.

These complaints would be made to the Victorian Legal Services

Commissioner.

38

Subclause (2) confirms that the scheme decision maker may

cause a complaint to be made to the Health Complaints

Commissioner under the Health Complaints Act 2016 or a

relevant regulatory body about the amount charged by a medical

expert or counselling service provider for the provision of any

service in connection with an application if the scheme decision

maker considers the amount charged to be grossly excessive.

Other regulatory bodies could include the Mental Health

Complaints Commissioner.

Both subclauses are directed at ensuring that fees charged by

practitioners in relation to applications for assistance are

reasonable and affords an avenue for recourse to the scheme

decision maker if a practitioner is engaging in unscrupulous or

are charging grossly excessive fees.

Part 6—Miscellaneous

Division 1—Publication and admissibility of documents and other

information

Clause 60 provides the definition of publish for the purposes of this

Division. Publish means to disseminate or provide access to the

public or a section of the public by any means, including by—

• publication in a book, newspaper, magazine or other

written publication; or

• broadcast by radio or television; or

• public exhibition; or

• any other broadcast or electronic communication.

Clause 61 establishes that it is an offence to publish certain scheme

documents, being documents or copies of or extracts from

documents that—

• were created by the scheme decision maker or a

member of staff in the performance of a function under

this Bill; and

• identify, or are likely to lead to the identification of, a

person who has made or is otherwise connected with an

application.

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The maximum penalty associated with this offence is 20 penalty

units or imprisonment for 4 months, or both, in the case of a

natural person, or 50 penalty units in the case of a body

corporate.

This clause does not prohibit the publication of deidentified data,

for example, for the purposes of annual reporting on the Bill.

Subclause (2) confirms that, without limiting subclause (1)(a), a

document referred to in that subclause includes any of the

following that identifies, or is likely to lead to the identification

of, a person who has made or is otherwise connected with an

application—

• a written notice of a decision made on an application;

• a victim recognition statement;

• any written material provided to a person by the scheme

decision maker or a member of staff at a victim

recognition meeting.

The documents non-exhaustively listed by this subclause are

examples only and, in the interests of clarity, confirm that those

documents listed must not be published where they would

identify or likely lead to the identification of a person connected

to the application.

Subclause (3) provides that subclause (1) does not apply if the

scheme document, or the copy of or extract from the document,

is admissible as evidence in a legal proceeding and the court

makes an order requiring to the document to be published. This

ensures that, while publication of scheme documents is limited

by this subclause, scheme documents may be published in

narrow circumstances.

Subclause (4) clarifies that a person who committed, or is alleged

to have committed, an act of violence in respect of which an

application has been made is a person connected with the

application.

Clause 62 establishes that it is an offence to publish any information related

to a decision on whether or not to pay assistance if the

information identifies or is likely to identify a person who has

made or is otherwise connected to the application.

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The maximum penalty associated with this offence is 20 penalty

units or imprisonment for 4 months, or both, in the case of a

natural person, or 50 penalty units, in the case of a body

corporate.

Subclause (2) provides that the offence created by subclause (1)

does not apply in relation to the publication of a document, or a

copy of or extract from a document, referred to in subclause

61(1).

Subclause (3) provides that, subject to subclause (4), the offence

created by subclause (1) does not apply to the publication by, or

with the consent of, an adult applicant of information that does

not identify, and is not likely to lead to the identification of, any

person connected with the application other than the applicant or

any person connected with the application who has consented to

the publication. This subclause allows victims to publish

information (but not documents) relating to their experience of

making an application for financial assistance or the act of

violence it concerns, so long as that publication does not include

information related to the outcome of the application that

identifies another person without their consent. For example, a

victim would be entitled to publish a social media post stating

that they have made an application to the financial assistance

scheme for assistance in relation to an act of violence that was

committed against them. If the post does not include any

information relating to the decision that identifies, or is likely to

lead to the identification of, any other person, the social media

post would not constitute an offence under subclause (1).

By contrast, where an applicant publishes on social media that

they made an application for financial assistance, and the scheme

decision maker awarded them $1,000, because Person B

assaulted them, that post would constitute an offence under

subclause (1), as the applicant's social media post identified

another person associated with the application, being Person B.

Subclause (4) provides that subclause (3) does not apply to the

publication of any information that identifies, or is likely to

identify, a person who committed, or is alleged to have

committed, an act of violence who was under the age of 18 years

at the time of the commission of the act of violence. This

subclause protects the identities of people who committed, or are

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alleged to have committed, offences when they were minors and

clarifies that this information cannot be published regardless of

consent.

Subclause (5) clarifies that a person who committed, or is alleged

to have committed, an act of violence in respect of which an

application has been made is a person connected with the

application.

Subclause (6) defines adult applicant to be a person who has

made an application and who is over the age of 18 years at the

time of publishing. By implication, applicants who are minors

may not consent to the publication of information until they

attain the age of 18 years.

Clause 63 provides that the following documents (including copies or extracts from them), despite anything to the contrary in the

Evidence Act 2008, are not admissible as evidence in any legal

proceeding—

• an application;

• a document accompanying an application that was

prepared solely for the purposes of the application;

• a document provided to the scheme decision maker or a

member of staff in connection with an application that

was prepared solely for the purposes of the application;

• a document prepared by the scheme decision maker or a

member of staff in connection with an application.

Although this clause is intended to restrict the admissibility of

scheme materials in legal proceedings, it is also intended not to

inadvertently restrict the admissibility of documents that exist

elsewhere and are otherwise admissible as evidence in a legal

proceeding or were prepared or are being used for other purposes

(for example hospital or police records). Subclause (1)(b), for

example, is confined to documents prepared solely for the

purpose of an application for assistance made to the scheme

decision maker (for example, a statement prepared solely to

accompany an application for assistance).

Subclause (2) provides exceptions to the inadmissibility of

documents as provided for in subclause (1) in certain

proceedings, including—

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• a proceeding for review of a decision made under this

Bill, if the applicant is a party to that proceeding.

For example, if the applicant applies to VCAT or for

judicial review of a decision on an application, then

documents referred to in subclause (1) are admissible in

those proceedings;

• in a proceeding for an offence against this Bill, such as

the offence of providing false or misleading information

in relation to an application created by clause 66;

• in a proceeding for an offence against section 81, 82, 83

or 83A of the Crimes Act 1958 (fraud) or an offence of

conspiracy to commit, incitement to commit or

attempting to commit any such offence; or

• in a proceeding for an offence against section 314(1) of

the Crimes Act 1958 (perjury) or any other offence that

involves an interference with the due administration of

justice; or

• with the consent of the applicant.

Subclause (3) confirms that a person cannot be required, by

subpoena, summons or otherwise, to produce a document that is

inadmissible under this clause. This subclause prevents scheme

documents from being subpoenaed for use in legal proceedings.

Clause 64 prohibits cross-examination of a victim in any legal proceeding

on the contents of a document referred to in clause 63(1) unless

the document is admissible in that proceeding in accordance with

clause 63(2).

This protection is further strengthened by subclause (2), which

states that during cross-examination in any legal proceeding a

victim cannot be requested to consent to the admission of a

document referred to in clause 63(1).

Subclause (3) confers an obligation on a court to advise a victim

of the protected status of a document referred to in clause 63(1),

and the effect of providing consent to its admission, if the victim

wishes to consent to the admission of the document.

Despite a victim consenting to the admission in any legal

proceeding of a document referred to in clause 63(1), a court

may, as it considers appropriate in the interests of justice,

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nonetheless disallow cross-examination on the contents of the

document.

This clause addresses concerns that victims may be faced with

'on the spot' questioning during cross-examination as to the

contents of their applications for financial assistance. The court's

discretion to disallow cross-examination even with the consent of

the victim to a document's admission also provides a further

safeguard for victims when they may not fully understand the

repercussions of providing consent or have not had the

opportunity to seek independent legal advice.

Division 2—General

Clause 65 creates the offence of obtaining financial assistance under this Bill by fraud, with an associated maximum penalty of

120 penalty units or 12 months imprisonment, or both.

Subclause (2) creates the offence that a person must not

knowingly assist another person to obtain assistance fraudulently

under this Bill.

These offences aim to dissuade people from lodging fraudulent

applications, thereby encouraging responsible and appropriate

disbursement of public money to victims of crime and supporting

the integrity and sustainability of the scheme.

Clause 66 creates the offence of providing false or misleading information in relation to an application, with an exception for a person who

believed on reasonable grounds that—

• in the case of false information, the information was

true; or

• in the case of misleading information, the information

was not misleading.

The maximum penalty associated with this offence is

120 penalty units or imprisonment for 12 months, or both.

This offence provides a disincentive to applicants to provide

false or misleading information in support of an application for

financial assistance.

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Clause 67 confers an obligation on the scheme decision maker to provide an annual report to the Minister on the performance of the

scheme decision maker's functions, powers and duties during the

financial year ending on the previous 30 June.

Subclause (2) obligates the Minister to cause a report under

subclause (1) to be presented to each House of Parliament within

7 sitting days of that House after the report is received by the

Minister.

Clause 68 deals with the funding of the scheme and the amounts required to be paid into and out of the Consolidated Fund.

Subclause (1) provides that the following amounts must be paid

out of the Consolidated Fund, which is appropriated by this

subclause to the necessary extent—

• amounts of assistance to be paid under this Bill; and

• amounts to be paid under this Bill for reasonable costs

in assisting or legally representing an applicant in

relation to an application.

Subclause (2) provides that the following amounts must be paid

into the Consolidated Fund—

• amounts repaid under this Bill; and

• any amount otherwise paid to or recovered by the State

under this Bill.

Clause 69 empowers the scheme decision maker to hold an amount of assistance on trust if satisfied that it is appropriate to do so.

Subclause (2) allows the scheme decision maker to invest money

held on trust under subclause (1) on deposit with an ADI, which

is an authorised deposit-taking institution within the meaning of

the Banking Act 1959 of the Commonwealth, or in any manner

in which trust funds may be invested under the Trustee

Act 1958.

Subclause (3) obligates the scheme decision maker to pay all

income from the investment of money under subclause (2) to the

person for whose benefit the amount of assistance is to be paid

under this Bill. This highlights and reinforces the fact that the

funds are always held for the benefit of the victim.

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Clause 70 allows the scheme decision maker to pay assistance to an administrator for a person, if an administration order is in effect

for that person.

Subclause (2) provides that, if a person for whose benefit

assistance is to be paid is also a person under the age of 18 years

or any other person under disability for whom an administration

order is not in effect, the scheme decision maker may pay the

assistance to the Senior Master of the Supreme Court.

Subclause (3) provides that the Senior Master must hold money

received under subclause (2) as if an order had been made in a

proceeding in the Supreme Court that the money be paid into

court and held on behalf of the person referred to in subclause

(2), and the money had been paid into court in accordance with

that order. The duties and obligations of the Senior Master are

identical to that of a beneficiary of a court order described in

subclause (3)(a).

Subclause (4) provides that clause 70 does not affect the

operation of the Guardianship and Administration Act 2019,

and subclause (5) defines person under disability to have the

same meaning as in section 33A of the Supreme Court

Act 1986.

Clause 71 subclause (1) requires the Minister to commission an independent review on the operation of this Bill within 2 years of

the commencement of this clause.

Subclause (2) provides that the person who conducts the review

under subclause (1) must give a written report of the review to

the Minister.

Subclause (3) requires the Minister to cause a copy of the report

under subclause (2) to be presented to each House of Parliament

within 10 sitting days after the report is received by the Minister.

This clause aims to ensure that the scheme is able to evolve with

the changing needs of victims and to ensure that access to the

scheme is facilitated for all victims of crime and that the

government is provided with impartial advice on how to ensure

the efficiency and responsiveness of the scheme in the future.

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Clause 72 subclause (1) provides that the relevant amount payable to or for the benefit of a victim is to be indexed annually in accordance

with the specified formula.

Clause 73 empowers the Governor in Council to make regulations for or with respect to any matter or thing required or permitted by the

Bill to be prescribed or necessary to be prescribed to give effect

to the Bill. Without limiting the matters or things for which the

Governor in Council may make regulations, subclause (2)

provides examples such as—

• additional offences that are relevant offences; and

• categories of persons who are primary victims; and

• special reporting categories of persons; and

• amounts of assistance for which victims may be

eligible; and

• circumstances for the payment of special financial

assistance; and

• circumstances in which an application may be made for

assistance for expenses relating to reasonable

counselling services.

Part 7—Transitional provisions

Clause 74 deals with applications for additional assistance made by victims who have received an award under the Victims of Crime

Assistance Act 1996.

Subclause (1) provides that a person who has had the benefit of

an award by VOCAT under the Victims of Crime Assistance

Act 1996 may apply to the scheme decision maker to vary the

award. Upon a person applying to the scheme for a VOCAT

award to be varied, the scheme decision maker would assume

administrative responsibility of that award.

Subclause (2) provides that an application for a variation must be

made within 6 years after the day on which the award was made

or if the person was under the age of 18 years when the award

was made at any time until the person turns 24 years of age.

Subclause (3) provides that an application for a substantive

variation may be made only once.

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Subclause (4) empowers the scheme decision maker to—

• in the case of an application for a substantive variation,

decide to pay additional assistance (including special

assistance) to the person subject to any conditions the

scheme decision maker thinks fit; or

• in the case of an application for a minor variation, make

the variation sought or any other minor variation the

scheme decision maker thinks fit.

Subclause (5) requires the scheme decision maker, in considering

an application for variation, to take into account—

• any fresh evidence that has become available since the

award was made or last varied; and

• any change of circumstances that has occurred since the

award was made or last varied or that is likely to occur;

and

• any payments received by or payable to the person to

whom, or for whose benefit, the award was made in

respect of the injury or death since the award was made

or last varied; and

• anything else that the scheme decision maker considers

relevant.

The considerations to be taken into account by the scheme

decision maker are broad but sufficiently flexible to consider

applications for variation on a case-by-case basis and tailor each

variation to the individualised needs of victims.

Subclause (6) requires that the scheme decision maker must

exercise powers under this clause in accordance with the other

provisions of this Bill relating to the payment of, or the amount

of, assistance as in force that the time the power is exercised.

Subclause (7) provides that the scheme decision maker remains

bound by the maximum amounts of assistance under this Bill as

in force at the time the decision under this section is made, in

considering an application for variation under this clause.

Subclause (8) provides that Division 1 of Part 4 and clause 49

apply in relation to an application for variation, and a decision

made on an application for variation, as if they were an

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application for variation of assistance under clause 48 and a

decision made on such an application. This entitles applicants to

notice of decisions and accompanying statements of reasons and

internal and VCAT review of a decision

Subclause (9) defines the following terms—

award does not include an interim award made by VOCAT, the

effect of which is that if a person has applied to VOCAT and

received an interim award only, that person is not eligible to

apply to the scheme to vary that interim award. However, the

person may be able to apply for assistance under clause 75 as

long as their VOCAT application is not still pending when the

scheme commences. This measure provides clarity as to the

appropriate body to determine all applications;

minor variation means a variation of an award of assistance

under the Victims of Crime Assistance Act 1996 to give effect

to the original intention of the award;

substantive variation means a variation of an award of assistance

under the Victims of Crime Assistance Act 1996 that is not a

minor variation.

A victim who previously received a final award for counselling

services, for example, could apply for a minor variation to their

VOCAT award if the fees charged by the counselling service

increased at the start of a financial year or if they need to change

the name of their counsellor. These examples would constitute a

minor variation as the variation gives effect to the original

intention of the VOCAT award, being to provide access to

counselling services to the victim.

By contrast, a victim who had received a final award at VOCAT

for counselling services, and then later discovered that the

alleged offender had moved close to them and so wished to have

CCTV installed at their property would need to apply for a

substantive variation, as this assistance sought does not give

effect to the original intention of their award.

Clause 75 subclause (1) provides that, subject to subclause (2), an application may be made by a person under this Bill in respect of

an act of violence that occurred before the commencement of

clause 21 unless the person had received a final award or if their

application had been refused under the Victims of Crime

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Assistance Act 1996 or any corresponding previous enactment

in respect of that act of violence.

The effect of this is that, subject to other eligibility criteria

(including time periods), applicants are not barred from making

an application for assistance to the scheme if the act of violence

occurred before commencement, unless they have received a

final award or their application has been refused under the

Victims of Crime Assistance Act 1996.

Subclause (2) provides that a person with a pending VOCAT

application at the time of the scheme's commencement may

apply for assistance under the Bill only if—

• the person first withdraws the application under the

Victims of Crime Assistance Act 1996; and

• they have not received an interim award from VOCAT.

The combined effect of subclauses (1) and (2) has the effect that

where a person's previous application under the Victims of

Crime Assistance Act 1996 was withdrawn or struck out before

commencement of the scheme, they can apply to the scheme

even when they had received an interim award. However, a

person with a pending application before the VOCAT at the time

of commencement, can only withdraw and reapply to the scheme

if they have not received an interim award.

Subclause (3) confirms that subclause (1) applies whether or not

the act or omission constituting the act of violence was a

criminal act at the time the act or omission occurred.

Subclause (4) defines an award to exclude an interim award

made under the Victims of Crime Assistance Act 1996.

Part 8—Amendment of other Acts

Division 1—Domestic Animals Act 1994

Clause 76 amend the definition of domestic partner in section 41K(4) of the Domestic Animals Act 1994 to substitute "section 3(1) of

the Victims of Crime Assistance Act 1996" with "the Family

Violence Protection Act 2008".

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Division 2—Sentencing Act 1991

Clause 77 substitutes section 85I of the Sentencing Act 1991 to provide that a court must reduce an amount of compensation under a

compensation order by the amount of any award made or

assistance paid to the victim under the Victims of Crime

Assistance Act 1996 or the Bill.

Clause 78 substitutes the heading to Division 2A of Part 4 of the Sentencing Act 1991 to "Division 2A—Recovery of assistance

paid under victims of crime legislation".

Clause 79 inserts a new section 87AB in the Sentencing Act 1991 to allow a court to order an offender to pay to the State an amount equal

to the whole or any specified part of the assistance paid under

this Bill, if that offender is convicted of a relevant offence within

the meaning of this Bill and assistance was paid under this Bill.

New section 87AB(2) limits the timeframe for an application for

an offender to repay assistance under subsection (1) to a period

of 6 months after the later of the day on which the person was

found guilty or convicted of the relevant offence or the day on

which the assistance was paid or varied under the Bill.

Subsection (3) enables a court to require an amount payable

under subsection (1) to be paid wholly as a lump sum, partly as a

lump sum and partly by instalments or wholly by instalments.

Subsection (4) states that a court must not make an order under

subsection (1) without giving the offender a reasonable

opportunity to be heard on the application for the order and

without having regard to the offender's financial resources

(including earning capacity) and financial needs, any obligations

owed by the offender to any other person, and any other

circumstances that the court considers relevant.

Subsection (5) provides that a court is not prevented from

making an order under subsection (1) only because it has been

unable to find out the financial circumstances of the offender.

Subsection (6) provides that the offender has the right to appear

on the hearing of an application under subsection (1) personally

or by a lawyer or, with the leave of the court, by any other

representative.

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Subsection (7) confirms that the court may, at any time on the

application of the State or the offender, vary an order made under

subsection (1) in any manner that the court thinks fit.

Clause 80 subclause (1) provides that, in the heading to section 87B of the Sentencing Act 1991, after "87A" the words "or 87AB" are to be

inserted.

Subclause (2) provides that, in section 87B(1) of the Sentencing

Act 1991, after "section 87A(1)", "or 87AB(1)" is to be inserted.

Division 3—Transport (Compliance and Miscellaneous) Act 1983

Clause 81 Subclause (1) provides that section 12(5) of the Transport (Compliance and Miscellaneous) Act 1983 be amended to

substitute a note to confirm that the financial assistance that a

train driver has been awarded or is eligible to be awarded under

that section is to be taken into account to reduce the amount of

financial assistance paid to the train driver under the Bill.

Subclause (2) amends section 12(6) of the Transport

(Compliance and Miscellaneous) Act 1983 to substitute

"section 8A of the Victims of Crime Assistance Act 1996" with

"section 11 of the Victims of Crime (Financial Assistance

Scheme) Act 2022".

Division 4—Victims' Charter Act 2006

Clause 82 amends section 16(2) of the Victims' Charter Act 2006 to state that a victim may apply for financial assistance in accordance

with this Bill.

Clause 83 amends a minor typographical error in section 17(4) of the Victims' Charter Act 2006 to include a full stop after "order".

Division 5—Victims of Crime Assistance Act 1996

Clause 84 inserts a new section 24A after the heading to Division 2 of Part 3 of the Victims of Crime Assistance Act 1996 to provide

that no applications can be made to VOCAT at any time after the

commencement of clause 21 of this Bill.

New section 24A(2) ensures that VOCAT retains all jurisdiction

and powers to continue dealing with applications made under the

Victims of Crime Assistance Act 1996 before the

commencement of clause 21 of this Bill.

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Clause 85 inserts a new provision after section 60(1) of the Victims of Crime Assistance Act 1996 to provide that no applications to

vary an award under that Act can be made after the

commencement of clause 21 of this Bill.

Division 6—Victims of Crime Commissioner Act 2015

Clause 86 substitutes the definition of victim of crime in section 3 of the Victims of Crime Commissioner Act 2015 so that the

definition refers to a victim as defined in—

• section 3(1) of the Victims of Crime Assistance

Act 1996; or

• clause 3(1) of this Bill; or

• section 3(1) of the Victims' Charter Act 2006.

Clause 87 substitutes section 13(1)(e) of the Victims of Crime Commissioner Act 2015 to include the following functions of

the Commissioner under that Act—

• receiving and dealing with complaints under

Division 3A;

• making annual and other reports under Division 5;

• performing any other functions conferred on the

Commissioner by or under that Act or any other Act.

Clause 88 amends section 28(1) of the Victims of Crime Commissioner Act 2015 to extend the timeframe for the Commissioner to make

an annual report.

Division 7—Wrongs Act 1958

Clause 89 amends 24AG(2) of the Wrongs Act 1958 to insert a provision providing that applications for assistance under this Bill are

claims excluded from Part IVAA of the Wrongs Act 1958.

Clause 90 amends section 28C of the Wrongs Act 1958 to insert a further provision confirming that Part VB of that Act does not apply to a

payment of assistance under this Bill.

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Division 8—Repeal of this Part

Clause 91 provides for Part 8 of the Bill to be repealed on 1 December

2025. The repeal of this Part does not affect in any way the

continuing operation of the amendments made by it (see section

15(1) of the Interpretation of Legislation Act 1984).