The Victims Compensation Tribunal of New South Wales is a former tribunal of the Government of New South Wales that was established to determine the amounts that may be awarded to victims of crime for personal injury in New South Wales, a state of Australia. The tribunal had exclusive jurisdiction to determine the amount which the Victims Compensation Fund of New South Wales would pay to a victim of crime. This tribunal was unique in Australia in that it did not notify nominated defendants of tribunal hearings and therefore did not hear evidence that may exist from such persons.

The tribunal's functions were merged into the Administrative Decisions Tribunal of New South Wales in June 2013; which in turn was merged into the newly established New South Wales Civil and Administrative Tribunal, with effect from 1 January 2014.

Background to the establishment of the tribunal

Prior to the establishment of the tribunal, there were two ways victims could obtain compensation for personal injury:

They could sue at common law for injuries sustained as the result of a criminal act. All courts which have civil jurisdiction, such as the Supreme Court of New South Wales, the District Court of New South Wales, or the Local Court of New South Wales can hear and determine a claim for personal injury. Under this method both victims and defendants are required to give oral evidence and be cross-examined in order to assess their individual veracity and the true worth of their claim. Strict rules of evidence apply and the claim must be proven on the civil standard, the balance of probabilities; or, Section 437 of the Crimes Act 1900 also allowed a criminal court to make an order for criminal injuries compensation. Under this method Trial Judges who had heard all the evidence during the criminal trial would then turn their mind to the question of compensation. When an order was made, the Director-General of the Department of the Attorney General and of Justice was empowered to make a payment out of government funds to the victim. The Crimes Act also provided that the Attorney General could take steps to recover any payment made from the criminal concerned.

The first tribunal

In 1987, despite objections from the Liberal State Opposition, New South Wales Labor Premier Barrie Unsworth repealed Section 437. In its place, the Victims Compensation Act 1987 (NSW) was passed then given assent on 16 December 1987 to establish a new compensation tribunal for victims. It provided that a magistrate of the Local Court of New South Wales could constitute the tribunal. The first tribunal ceased to exist when the Victims Support and Rehabilitation Act 1996 commenced. The latter act continued the existence of the old tribunal under the new act.

The primary change was the shift to a tariff approach of awarding compensation for injury, replacing the previous discretionary approach. The new scheme appended a schedule listing a range of body party and particular harms to those body party, specifying amounts for each injury depending on their perceived seriousness. The revamped scheme also introduced an approved counseling scheme providing 20 hours of free counseling to victims.

The first tribunal differed to the way the tribunal now works. Applications for compensation were determined by a magistrate. An appeal from the magistrate could be made to the District Court.

The former tribunal

Structure

The Victims Compensation Tribunal ('VCT') was constituted under section 59 of the Victims Support and Rehabilitation Act 1996 (NSW).. It came into existence on 2 April 1997, although transitional arrangements in the act provided that the VCT was a continuation of the former tribunal.

A magistrate could be appointed as a member of the VCT. One of the members could be appointed by the Governor of New South Wales as the Chairperson of the VCT.

Assessors could also be appointed by the Director-General of the Attorney General's Department to determine applications.

Procedure

A person who claimed to be a victim of crime could make an application for victims compensation to the VCT. Potential recipients of compensation were one, the primary victim; two, the secondary victim and three, family victims. Applications were to be lodged within two years of the alleged act of violence or in the case of a family victim within two years of the death of the primary victim. An application lodged out of time could be accepted if the applicant established there were "good reasons to do so". Leave is usually given in cases of sexual assault, domestic violence or child abuse. Commonly accepted reasons for leave being granted were the age of the victim, the nature of the offence, the impact of the act of violence on the victim and various intervening acts. Simply being unaware of the scheme would not be a sufficient reason for delay.

An application form could be lodged by the victim or a representative, such as a lawyer, caseworker or parent. Once the application was received, if applicable leave would be considered. The claim would then be registered and assigned a reference number. Once registered, the claimant would be invited to file supporting evidence with the VCT. The onus was on the applicant to prove on the balance of probabilities that they were victim to an act of violence, pursuant to section 5 of the Victims Support and Rehabilitation Act 1996 (the 1996 Act). An 'act of violence' is an offence, involving violent conduct, resulting in the death or injury of the victim.

Commonly relied upon evidence would include sworn statutory declarations by the victim and/or witnesses, medical evidence such as counselling reports, hospital notes and Authorised Report Writer (ARW) reports and police evidence. ARW reports were approved to applicants who were claiming to have sustained either a moderate or severe psychological injury. The applicant would undergo an assessment with a clinical psychologist who had not previously treated them. The cost of these reports were born by the Compensation Fund as a disbursement on the claim. Costs for obtaining evidence up to a capped amount could be claimed on each application.

The next phase was the listing of the application for determination. The VCT would allocate a month in which to list the claim to go before an assessor and provide a deadline for the filing of any further evidence and submissions. As the VCT did not require either the alleged victim or the nominated defendant to be brought before it, the assessor dealt with the application in chambers and made a determination on the evidence and materials that were before it. Pursuant to s.29(2) of the 1996 Act, if the VCT accepted that an act of violence had taken place on the civil standard, the balance of probabilities, and that damage had occurred, it then determined the amount of compensation that would be awarded to the victim. Amounts were determined according to the Schedule of Injuries. The Schedule was a comprehensive list of claimable injuries with either a set figure of compensation or a range. The minimum compensation payable was $7,500 and the maximum was $50,000.

Although this body was given the term "Tribunal" by the then NSW Labor government, it does not adopt the adversarial method of fact finding. It has been a government "policy" since its inception in 1989 that the VCT is NOT to notify nominated defendants that an application has been made for compensation in which their name has been provided on the application form as the perpetrator. If the nominated defendant has never been brought before a criminal court, or has been charged but the charges dismissed at Committal, the VCT is not provided with any evidence that such persons may have been able to provide to suggest that an award should not be made. If the nominated defendant has been charged but is found not guilty at trial on the criminal standard, beyond a reasonable doubt, the tribunal will have access to the various court transcripts. However, the Tribunal will not have access to any other evidence that a nominated defendant may have been able to produce. Nor will the Tribunal have the opportunity to visually access the veracity of either the nominated defendant or the alleged victim as neither are required to appear before it. Unlike the normal adversarial methods adopted in common law courts found throughout Australia, the United Kingdom, Canada, the US and New Zealand this policy deliberately excludes evidence that could weigh against the person making the application. In a sense the VCT is "blind" to the existence of such evidence and can only make a decision on the material that is before it.

Was the VCT inquisitorial in nature? Pursuant to s.65A of the "Act" an assessor may "make such inquiries and undertake such investigations as the assessor considers necessary". Given the Attorney-General's policy not to notify nominated defendants it is reasonable to assume that Tribunal assessors do not consider that nominated defendants can provide any evidence of value to the Tribunal. Such procedure has no relationship to the inquisitorial procedure adopted in civil law countries such as found in Europe in which all available evidence is provided to the Court. In France, this collected evidence is called the "Dosier".

Appeal

Pursuant to s.36 of the 1996 Act an applicant dissatisfied with a determination by an assessor may appeal to a member of the tribunal. The appeal is held in open court and should be made within three months of the initial determination, although an extension is possible under "exceptional circumstances". The applicant and his or her legal representative can attend the hearing and adduce evidence and make submissions. There is also a legal representative for the Victims Compensation Fund who appears to resist the application. The tribunal is not bound by the rules of evidence and can inform itself in such manner as it thinks fit. The hearings are conducted with as little formality and legal technicality and form as the circumstances of the case permit. Without the consent of the Tribunal, publication of identifying details about witnesses, parties and nominated defendants is not permitted.

As with Assessor hearings the nominated defendant is not a party to the proceedings and consequently, is not notified of the appeal. Again, any evidence that the nominated defendant may have in his or her possession to suggest that the award should not be made is not produced to the Tribunal. As with Assessor hearings the Tribunal hearing is "blind" to the potential existence of such material.

At the conclusion of the hearing, the tribunal members makes a decision on the appeal.

Nominated defendants also have no right under the NSW Government Information Access Act (2010), the ''NSW Privacy and Personal Information Act (1989) or the NSW Victims Charter to apply for a copy of any documents including the judgment in which their name was mentioned.

Further appeals

While an appeal to a member of the tribunal is generally final, pursuant to s.39 of the act there is a right of appeal to the District Court on a point of law. Such an appeal should be lodged within three months of the day the notice of the tribunal was served on the applicant, although further time may be allowed under 'exceptional circumstances'.

Recovery of compensation awards

Convicted persons