Last updated 11 April 2017 This chapter is currently under review.
Reporting the act of violence
A victim is not eligible for financial assistance if they did not report the act of violence and did not have a reasonable excuse for not doing so. The assessor must be satisfied that an act of violence occurred and that the person was injured as a direct result of the act of violence before assistance can be granted (s 81 Victims of Crime Assistance Act 2009 (Qld) (VOCA Act)). If the victim is not considered to be a special primary victim, the crime must be reported to the police.
Where the victim is a special primary victim, the act of violence can be reported to a police officer or, alternatively, to the victim’s counsellor, psychologist or doctor (s 81(1)(a)(ii) VOCA Act). A special primary victim is a primary victim of an act of violence where the:
- act involved a sexual offence
- act was committed by a person in a position of power, influence or trust
- victim was a child at the time of the offence
- victim has an impaired capacity, whether or not it existed at the time of the offence
- victim was threatened or intimidated in relation to the act of violence (s 81(2) VOCA Act).
To be eligible for financial assistance, the victim must have sustained an injury as a direct result of the act of violence. An exception to this exists for related victims who are not applying for assistance relating to an injury. Injury is defined as one or more of the following (s 27 VOCA Act):
- bodily injury
- mental illness or mental disorder
- intellectual impairment
For a sexual offence, additional adverse impacts include:
- a sense of violation
- reduced self-worth or perception
- lost or reduced physical immunity
- lost or reduced physical capacity (including the capacity to have children) whether temporary or permanent
- increased fear or increased feelings of insecurity
- the adverse effect of others reacting adversely to the person
- the adverse impact on lawful sexual relations.
Accessing other options first
The VOCA Act is a complementary financial assistance scheme which means victims are generally required to access other available sources of assistance before receiving a grant under the VOCA Act.
In sch 3 of the VOCA Act, a relevant payment is defined to include compensation, damages and restitution. The most common types of payments fall into these three categories and can be broadly identified as compensation for injury or property damage ordered by a sentencing court, damages awarded through common law action and amounts paid as workers’ compensation.
Common sources of relevant payments include:
- private health insurance
- workers’ compensation (for work-related acts of violence)
- compulsory third party (CTP) motor insurance
- income protection insurance
- civil court claim.
Assessors are required to take these relevant payments and rebates into account and reduce any assistance granted by an amount equal to the relevant payment when determining grant of assistance and can request a victim to provide supporting documentation from relevant agencies (s 86 VOCA Act).
The assessor will advise the victim of their intention to reduce the grant of assistance due to the relevant payment and invite submissions within 28 days, which are considered prior to making a decision to reduce the grant of assistance (s 88 VOCA Act).
Victim Assist Queensland asks applicants for assistance to disclose any relevant payment they have received. Note that s 141 of the VOCA Act creates an offence for providing false or misleading particulars to an official in relation to an application.
Because the nature of the scheme is to provide assistance as soon as reasonably practicable, assessors may place a condition on the grant that the applicant advise the department of any relevant payment, including that they repay the amount.
Nothing in the VOCA Act limits or takes away from a victim’s common law rights to pursue an offender or other person responsible for an act of violence (s 22 VOCA Act). For example, a person assaulted at a hotel may have grounds to sue the hotel licensee in negligence, claiming that a failure by bar staff to refuse service to an intoxicated patron contributed to that patron assaulting the victim.
In circumstances where a victim has a concurrent common law action, assessment of their application for financial assistance would continue unless the common law action had been decided or settled, at which point any damages received would be taken into account.
The VOCA Act contains transitional provisions that apply to acts of violence that occurred before 1 December 2009.
The provisions provide a basis for victims who had a right to apply for compensation under the now repealed Criminal Offence Victims Act 1995 (Qld) (Criminal Offence Victims Act) and ch 65A of the Criminal Code Act 1899 (Qld) to seek financial assistance under the VOCA Act. As the Act is not retrospective, in order to be eligible for financial assistance the victim must satisfy the eligibility requirements of the repealed legislation.
This means that in most cases where the act of violence occurred before 1 December 2009, a victim may be eligible for financial assistance under the VOCA Act where:
- the offender is convicted or pleads guilty in a District or Supreme court
- under the Mental Health Bill 2015 (Qld), the offender was found of unsound mind at the time of committing the offence or is not fit for trial
- notification by police that an offender is not identifiable or locatable after appropriate enquiry and search.
Series of related offences under transitional provisions
If the victim has previously been granted compensation under the Criminal Offence Victims Act scheme for an offence in the series that was committed prior to the commencement of the VOCA Act, the financial assistance that would otherwise be payable in relation to the single act of violence must be reduced by an amount up to the amount of the compensation that the victim has or will receive (s 172 VOCA Act).