By Joel Trigg
Western Australia’s Criminal Injuries Compensation Act 2003 (“the Act”) was enacted to provide meaningful redress to victims of crime. After more than two decades of operation, three significant deficiencies have emerged that the Act’s current framework fails to address: the stagnation of the statutory compensation cap; inadequate provision for legal costs; and the disproportionate operation of the disqualification provisions in section 39.
The Law Society of Western Australia has called for legislative review. This article examines each deficiency in turn and proposes targeted reforms.
The frozen compensation cap
The Act caps total compensation at $75,000, encompassing pain and suffering, economic loss, medical expenses, personal items and report costs. That figure has not moved since the Act commenced in January 2004. In real terms, victims today receive considerably less than the legislature originally intended.
The contrast with analogous schemes is stark. Workers’ compensation maximum weekly benefits have risen approximately 110 per cent since 2003, from $130,000 to $273,000. Motor vehicle accident compensation maximums for pain and suffering have risen comparably, from $240,000 to $501,000. Had the criminal injuries cap kept pace with inflation, it would today stand at approximately $155,000.
The fiscal objection to raising the cap is not compelling. Fewer than five per cent of awards in 2024/2025 reached the existing maximum. Those claimants are, by definition, the most gravely injured. An immediate increase to approximately $150,000, coupled with a legislated CPI indexation mechanism to prevent recurrence of the present stagnation, would remedy the injustice without imposing substantial additional cost on the scheme.
Legal costs and access to justice
The Office of Criminal Injuries Compensation does not assist claimants to prepare their applications. Victims whose claims involve contested legal questions or complex medical evidence must therefore navigate the process unassisted unless they can afford private legal advice. This creates an inequity that disadvantages the most vulnerable claimants precisely when they need most support.
The position in the appeals jurisdiction is more acute. The Act permits recovery of just $180 for preparation of written submissions and $180 for appearing on appeal. CIC appeals regularly involve detailed statutory analysis, complex medical causation questions, and close examination of the underlying criminal proceedings. In practice, appeals are either conducted pro bono or at heavily reduced rates, placing the cost on practitioners.
The Act should be amended to permit recovery of reasonable legal costs in successful primary applications, separate from the compensation cap. Appeal costs should be revised by reference to Legal Aid rates as a benchmark. Both reforms would materially improve access to justice without exposing the scheme to abuse.
The disproportionate reach of section 39
Section 39 disqualifies claimants engaged in criminal conduct forming part of or associated with the circumstances of the relevant offence. The provision’s purpose (to exclude those who were complicit in the criminal activity that caused their injury) is readily defensible. Its application, however, has extended well beyond that core case.
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 is the paradigm case. The victim had been subjected to sexual penetration without consent and unlawful and indecent assault. Her claim for compensation was denied because she had used amphetamines prior to and after the offences. The Court of Appeal upheld the disqualification. The drug use bore no causal connection to the offences committed against her, did not contribute to their commission, and did not reduce their gravity. It was a separate illegality that, on the statutory language as interpreted, extinguished her entitlement entirely.
This outcome reflects a misalignment between the provision’s stated purpose and its practical operation. Section 39 should be amended to require a causal connection between the claimant’s criminal conduct and the offence for which compensation is sought. Where conduct is unrelated, decision-makers should have a discretion to reduce (rather than extinguish) the award, having regard to the nature of the conduct and its relationship, if any, to the relevant offending. Minor, unrelated offending should not operate as an automatic bar to compensation.
Conclusion
The Criminal Injuries Compensation Act 2003 no longer adequately serves its foundational purpose. The statutory cap has eroded in real value; cost provisions render the scheme inaccessible to many; and section 39 has been applied to deny compensation to a victim of rape on the ground of unrelated drug use. The reforms proposed here are modest, evidence-based and consistent with analogous legislative frameworks: an indexed cap increase, revised costs provisions, and a proportionality requirement in section 39.
The case for reform is compelling. For those who currently fall through the scheme’s gaps, it is also urgent.
