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  • October 8, 2020

Being in a State after assaults

Being in a State after assaults

Being in a State after assaults 900 577 aelegal

RE GOODWIN [2020] WADC 128

This case was an appeal against decision of a criminal injuries assessor. The primary issue that the court had to decide upon was the application of Western Australian state laws to Commonwealth places generally and, more specifically, whether the Criminal Injuries Compensation Act 2003 applies to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970.

The appellant had applied for compensation pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act) for injuries suffered by him following two separate assaults in Immigration Detention Centres.

The first such assault occurred at Yongah Hill Immigration Detention Centre and the second assault occurred at the Christmas Island Immigration Detention Centre.

The assessor granted compensation in the sum of $7,597 in relation to the Christmas Island assault, but refused to make an award of compensation to the appellant in relation to the Yongah Hill assault on the basis that she did not have jurisdiction to do so.

The Court enunciated several important principles relating to appeals in the Criminal Injuries Compensation matters. These include:

  1. The court has a wide discretion is deciding the appeal and may determine the appeal without being bound, in any way, by the assessor’s decision; and
  2. That the appeal is to be decided without regard to the reasons for the decision of the assessor; and
  3. That the court may decide the application solely on the evidence and information that was in possession of the assessor or may receive further evidence and information and that the admission of such further evidence may be done without the necessity for a formal application being made; and
  4. The court may of its own increase or decrease any award to an amount that the court feels is fair and reasonable and proportionate; and
  5. Awards of this nature are a compensation for the injury suffered and not a punishment of the offenders.

Yongah Hill is in the state of Western Australia and not far from Perth whereas Christmas Island is approximately 1500km off the coast of Western Australia. Both Yongah Hill Immigration Detention Centre and Christmas Island Immigration Detention Centre are designated as Commonwealth places but there are different laws that apply.

Pursuant to the Christmas Island Act the laws of Western Australia apply to the territory of Christmas Island to the extent that they are not inconsistent with Commonwealth legislation or the Constitution. Furthermore, the courts and judicial officers of Western Australia have jurisdiction over Christmas Island pursuant to the Territories Law Reform Act 1992 (Cth). Therefore, even though Christmas Island is Commonwealth territory Western Australian law applies to it. Importantly, reg 6(d) of the Christmas Island (Courts) Regulations 2018 defines courts of Christmas Island to include the Chief Assessor of Criminal Injuries Compensation, or an Assessor of Criminal Injuries Compensation, appointed under Schedule 1 to the Act.

Therefore, the court concluded that the Act applies to injuries sustained during the course of an offence committed at the Christmas Island Detention Centre and, further, for a number of reasons, increased the compensation received by the victim.

Despite being located within the State of Western Australia different considerations applied to Yongah Hill Immigration Detention Centre. The Constitution (Cth) gives the Commonwealth Parliament exclusive legislative power to make laws with respect to Commonwealth places. However, the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the Commonwealth Places (Administration of Laws) Act 1970 (WA) have the effect of making state laws into federal laws in relation to Commonwealth places.  Therefore, the Act applies to Yongah Hill Immigration Detention Centre. Importantly however, the court found that an assessor does not have federal jurisdiction to grant compensation for criminal injuries compensation sustained at Yongah Hill Immigration Detention Centre because an assessor could only be vested with federal jurisdiction if:

“1. the assessor is so empowered pursuant to s 7(1) of the COPAL Act (Cth) by virtue of being a ‘court of the State’; or

  1. a gazetted arrangement applied because an assessor was neither a ‘court of the State’ and was not exercising judicial power.”

The court concluded that even though the assessor exercises judicial power (not administrative power) it is not ‘a court of a State’ and that there was no gazetted arrangement. Therefore, neither of those routes vested jurisdiction in the assessor to make an award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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