Prior to the establishment of the tribunal, there were two ways victims could obtain compensation for personal injury: In 1987, despite objections from the Liberal State Opposition, New South Wales Labor Premier Barrie Unsworth repealed Section 437.
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.
Although this body was given the term "Tribunal" by the then NSW Labor government, it does not adopt the adversarial method of fact finding.
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.
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.
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".
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'.
Under the Act convicted persons have the right to appeal against a restitution order from the Tribunal to repay the State the compensation award.
When it confirms a provisional order, the Tribunal may reduce the amount to be paid under the provisional order having regard to: Recovery proceedings against convicted persons must be determined in accordance with the rules of evidence and in accordance with the practice and procedure of Local Courts exercising civil jurisdiction in the same way as the determination by a Local Court of an action commenced by way of an ordinary statement of claim within the meaning of the Local Court (Civil Claims) Act 1970 (section 52).
An order for restitution is taken to be a judgment of the Local Court in proceedings on a statement of claim and may be enforced accordingly (section 54).
In those cases where the offender is either unidentified or criminal proceedings have resulted in acquittal or dismissal, payments of statutory compensation cannot be the subject of restitution action.
[3][4][5][6] Further complaints to this effect were made by Senator Bill Heffernan then Federal Parliamentary Secretary to Cabinet,[7] Roseanne Catt,[8] and the late John Marsden.
Breen was particularly concerned that in the case of alleged perpetrators who had been found not guilty at trial or who had never been charged, that no proper assessment of their credibility or veracity was made by the compensation assessor.
As alleged perpetrators were not parties to the compensation process, they are unable to provide evidence to the Tribunal that the award should not be made.
[9]: para 1246 "X" had not only labelled Mr Marsden a paedophile, but had also alleged he was a drug lord responsible for smuggling whole shiploads of narcotics into Australia.
Judge Coorey overturned a decision of Magistrate Jacqueline Milledge, sitting as the Victims Compensation Tribunal and was satisfied on the balance of probabilities that compensable acts of violence by five men, including John Marsden had taken place against "X" and awarded him a grand total of A$142,835 made up of A$100,000 for pain and suffering, A$35,000 for economic loss and another A$7,835 in costs and disbursements.
Despite being successful in overcoming the Limitations Act,[15] Mr Fraser later withdrew his common law action in favour of an application to the NSW Victims Compensation Tribunal.
On 6 July 2001 Judge Taylor awarded Mr. Fraser $40,000 in victims compensation, plus $5,078 for psychiatarists' fees and $8000 in legal costs for being sexually assaulted in the 1960s.
[16] Another alleged victim and discredited witness, John Pearce, informed a Lateline reporter he had lied about Marsden and wished him all the best in the future.
Egan further stated that "it is simply not the case that the allegations made by a claimant are untested" and quoted the evidence which the Tribunal draws upon to make its findings.
"The legislation requires that any application for victims compensation must be in the form of a signed affidavit, medical evidence must be provided by the claimant and relevant police and court reports are independently obtained.
[17] On 22 November 2006 Breen made the following comments to the NSW Parliament in relation to the passing of the Victims Support and Rehabilitation Amendment Bill: Similarly, on many occasions the late John Marsden complained about people who were witnesses for Channel 7 in that notorious defamation proceeding, witnesses whom John Marsden did not know from a bar of soap, receiving compensation from the Victims Compensation Authority simply on the basis of a story.
That issue should have been addressed in this bill.In 2007 Greg Smith, Member for Epping and Shadow Attorney-General in the NSW Parliament asked a series of questions to the Minister for Police.
[19] In December 1997 a Report on the "Long-Term financial Viability of the Tribunal" was completed by the Joint Select Committee on Victims Compensation, Chaired by Mr. Tony Stewart MP.
b) A total of A$61 million (statutory compensation awarded by assessors and Tribunal on appeal, professional costs and disbursements) was paid.
In 2013 Howard Brown, a member of the NSW Victims Advisory Board, said the old bill "has been a farce – it is A$300 million in debt".
[25] One prominent member of the NSW Bar said: "a super-tribunal would more efficiently administer justice than many of the state's smaller tribunals.
[30] No details appear to be available as to how "up front" payments are to be effectively processed in an area of administration which has a track record of allowing a backlog longer than 4 years to develop and remain.