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S.65 Guidelines - Criminal History of Applicant (9 Feb 1998)
GUIDELINES ISSUED PURSUANT TO SECTION 65
Attached are guidelines* issued by the English Authority on the issue of contributory behaviour and “social violence”.
The Victims Compensation Act, 1996 is based on the English legislation and it would be appropriate to follow, as far as is reasonable, those guidelines.
It should be noted that paragraph 2.6 deals with an applicant’s conduct before, during or after the event and I assume refers to a provision in those terms in the English Act. Section 30 of the New South Wales Act refers to “any behaviour….that directly or indirectly contributed to the injury or death sustained by the victim”. The section makes no reference to behaviour during or after the event although section 30(1)(e) is probably sufficiently wide to include such actions.
The guidelines go on to consider the criteria for reduction/refusal of award such as fighting, provocative words or behaviour; gangs and terrorists; unlawful conduct; immoral conduct and illegal immigrants. In respect of immoral conduct I would have thought that the circumstances for refusing or reducing an award would be rare if non existent, however there may be cases which would justify a reduction or refusal of an award.
As to illegal immigrants, the High Court has held that those persons do have standing before the Australian Courts. Whether the fact that they have standing means that an award should be made in their favour is another issue. The Tribunal has dismissed, pursuant to section 20(1)(e) of the 1987 Act, claims by illegal immigrants. In each case those appeals were upheld on appeal to the District Court.
As to the character of an applicant, the District Court has held that an applicant’s criminal history is a legitimate vehicle for refusing to make an award (Mahoney DCJ in the appeal of Hillsley 22 August 1997 where he reviewed a number of authorities).
Chairperson
9 February 1998.
*These guidelines are not available in electronic format. Please contact Victims Services if you would like a copy.
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