Victims’ compensation

4.107 The avenues of redress for compensation for victims of crime are not exclusively based on legislation.^[190] Victims of crime—including victims of family violence—may be financially compensated in three ways: through an award of compensation in the civil courts, typically through a claim that a tort has been committed; through an order that an offender pay restitution or reparation to the victim, as part of the offender’s sentence; and through a claim to a statutory compensation scheme in which awards are assessed and paid by the government.

4.108 Compensating victims of crime has been part of a wider social and legislative trend towards greater recognition of the importance of the interests of the victims of crime in the criminal process. The general philosophy underlying victims’ compensation is expressed in the preamble to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations General Assembly in 1985, as a recognition that victims of crime and

frequently their families, witnesses and others who aid them, are unjustly subjected to loss, damage or injury and that they may, in addition, suffer hardship when assisting in the prosecution of offenders.^[191]

4.109 The Declaration includes basic principles of restitution—that is, that offenders should pay for the costs of their crimes—and state compensation—that is, where such costs are not recoverable from offenders or elsewhere, states should endeavour to provide financial compensation to such victims and their families.^[192] The principle of restitution underlies the power to sentence an offender by ordering restitution or reparation, as well as damages for tort, while the development of statutory compensation schemes has been driven by the principle of compensation. Although the different avenues for compensation share the general philosophy of recognition of the injustice that a victim should bear the losses of a crime, there are some distinctions between the purposes of those forms of compensation. These purposes are considered below.

Victims’ compensation schemes

4.110 All Australian states and territories have legislation establishing victims’ compensation schemes. In some jurisdictions, such as Queensland and South Australia, these schemes are established in broader legislation that also encompasses other measures to support victims, such as the inclusion of fundamental principles of justice underlying the treatment of victims or the establishment of a levy upon offenders for the purposes of compensating victims.^[193] In other jurisdictions, such as Victoria, the legislation is concerned primarily with the establishment of a compensation scheme.^[194]

4.111 The legislation of NSW, Victoria, Queensland, South Australia and the Northern Territory includes provisions setting out statutory purposes and objects. Apart from the aim of establishing a compensation scheme (and other mechanisms under the legislation),^[195] these objects clauses include the following purposes and objects (variously expressed):

• to provide assistance (or support and rehabilitation) to victims of crime;^[196]

• to assist victims of crime to recover from the crime (and, in South Australia, ‘to advance their welfare in other ways’);^[197] and

• to give statutory recognition to victims of crime and the harm that they suffer from criminal offending.^[198]

4.112 The objects clauses also make clear that the awards under the compensation scheme are not intended to reflect the level of compensation to which victims of acts of violence may be entitled at common law or otherwise.^[199] In addition to these common provisions, the Victorian and Queensland acts include the further objective of adding to, or complementing, other victims’ services and, in Victoria, the objective of ‘allow[ing] victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources’.^[200]

4.113 As well as these statutory objectives, victims’ compensation schemes are seen as enhancing the efficacy of criminal justice systems by encouraging victims of crime to come forward and prosecute perpetrators.^[201] Like restitution orders, victims’ compensation schemes provide a more informal and efficient forum than civil litigation.^[202] They are also more effective in that victims have access to a pool of dedicated funds, whereas restitution from an offender depends upon the offender’s capacity to pay.

Restitution orders

4.114 In all Australian jurisdictions, except Western Australia, there is power to order—as a sentencing option—that an offender pay compensation for loss, injury or damage as a consequence of an offence.^[203] In Western Australia, the power to order compensation is restricted to property damage or property offences.^[204]

4.115 The ‘fundamental purpose’ of such powers is to give victims ‘easy access to civil justice’.^[205] As Bell J has explained:

When an offender has been dealt with by the courts, the judge can be in a good position to consider the issue of compensating the victim. The factual circumstances relevant to compensation may have been fully or at least sufficiently established by the evidence led or the admissions made by the offender. It can be clear that the offender’s crime has caused loss or damage to the victim. Once the court receives evidence of the extent and value of such loss or damage, it can then expeditiously determine whether and what compensation to order. This saves the victim the time, expense, inconvenience and possible additional trauma of having to institute a civil proceeding. Not doing so may deprive the victim of ready access to just compensation, leaving them with an understandable sense of grievance.^[206]

4.116 The making of restitution orders shares some philosophical underpinnings with the sentencing aim of restoration.

Compensation for tort claims

4.117 The basic function of an award of damages in tort is:

to compensate the plaintiff for loss suffered as a result of the tort; the plaintiff is entitled to restitutio in integrum, that is, to be put in the position they would have been in had the tort not been committed.^[207]

4.118 If a tort has been committed, victims of family violence, including sexual assault, may be able to seek damages from an offender. Such claims are largely governed by the common law and are pursued in the civil courts.

4.119 Along with this general purpose of restitution, individual torts may serve different purposes. Family violence most commonly gives rise to a claim in assault or battery. A battery is committed when a person directly and intentionally causes contact with the body of the victim without the latter’s consent.^[208] An assault is committed when a person directly and intentionally threatens the victim in such a way that the victim reasonably apprehends imminent contact with his or her body by the person, or something within the person’s control.^[209] Assault and battery are also criminal offences.^[210] The fundamental principle underlying these torts is that every person’s body is inviolable—that is, these torts protect the physical integrity of a person.^[211]

4.120 Negligence, on the other hand, is directed to ensuring that persons do not behave carelessly or negligently, in such a way as to harm others. Negligence may arise in the context of family violence where, for example, a third party such as a parent fails to take reasonable care to ensure that a child is not subject to violence.

4.121 Compensation claims by way of tort are not easy methods of redress for victims of family violence, for a number of reasons.^[212] This has been partly addressed through the power to order restitution and the development of statutory victims’ compensation schemes.