Criminal Law Newsletter
May 2012
Victim Compensation OutlineIntroduction It is useful to begin a discussion about victim compensation by outlining what it is not. The various legislative schemes in Australia's states and territories (collectively, victim compensation laws) are not designed as punitive “civil” orders levied against an offender (although it is possible for the court to order an offender to pay compensation directly). Rather, they are payments generally made from a government-backed fund to various classes of people connected with a violent crime. This article outlines the eligibility of a victim for compensation and what may be recoverable. Entitlement to Victim Compensation As a general rule, victim compensation claims can only be made in respect of crimes involving violence. Some jurisdictions consider sexual crimes and domestic violence to fall within this definition, but the rules will vary based on where the crime occurred in Australia. Australia's victim compensation laws distinguish between three classes of people: The Primary Victim – This is a person who was injured or died as a direct result of the crime. They may also be a person who suffered these injuries because they were attempting to stop the commission of an offence, rescue a victim or arrest the offender. The Secondary Victim(s) – These victims are a much wider group of people. They include people who were injured because they witnessed the crime being committed against the primary victim. In addition, some victim compensation laws cover close relatives of the primary victim who were not at the scene of the crime, but became aware of the violent crime. The Family Victim(s) – This final group includes family members of the primary victim. The term “family” is defined broadly, including a spouse, de-facto partner, parent, child or sibling. Owing to the wide number potential claimants in this class, victim compensation laws will often provide a limit on the total compensation payable for an offence and may allocate priorities between different family members. There are also a number of key exclusions from claiming victim compensation. These include victims who could also claim through other entitlement schemes (such as Medicare or workers compensation) or victims involved in traffic accidents. Scope of a Victim's Compensation Claim Your first step should be to speak to a solicitor with some experience in victim compensation claims. It is better to do this as soon as possible, as there are time limits that apply to victim compensation claims. Apart from helping to get the process moving, a solicitor can be very helpful in breaking down the traumatic events into concrete “heads” of compensation. They can also advise you on what evidence is needed to prove a claim (such as receipts, medical reports and other evidence). As with claiming damages under the general law, this area can be quite complex, although victim compensation schemes are generally designed to address incurred (that is, actual) losses or expenses and not future or predicted losses. This may include medical expenses for injuries directly connected with the crime, property or effects damage and documented out-of-pocket expenses. A final point to observe is that secondary and family victims often derive their entitlement to claim through the primary victim. This may create a situation where these classes of claimants cannot claim because the primary victim is ineligible (perhaps through expiration of a time limit or by the primary victim claiming through workers compensation). Obviously the claims of secondary and family victims will be more significant where the primary victim was killed in the offence, but this underscores the need to thoughtfully consider a victim compensation claim.
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