active bankruptcy proceeding, or a discharged bankruptcy administered during the relevant period where bankruptcy claw-back provisions have been exercised, a family law proceeding, or if the funds are the subject of a proceeds of crime forfeiture order, until those matters have been dealt with. Issue 3: Determining whether contributions are ‘out of character’ Without a substantial legal framework like bankruptcy with a Trustee in Bankruptcy and court procedures to interrogate financial records and assess purpose, it will be very difficult to determine whether or not a contribution is ‘out of character’. The Review seeks feedback on the following options: Option 1: a or a superannuation trustee applies a subjective assessment of whether contributions were ‘out of character’ and therefore available for compensation; or Option 2: all voluntary contributions by or on behalf of the member are deemed to be ‘out of character’ and therefore available for compensation. Victims Services supports option 1. This option would ensure that a fair decision can be made on whether the superannuation contributions are out of character. The assessment does not need to be entirely subjective. Appropriate guidelines and decision making criteria should be established to ensure that there is an objective basis to guide the determination of whether contributions should be considered out of character. The Review also seeks feedback on the appropriate timeframe for this assessment. In principle, contributions made in anticipation of an eventual compensation order should be in scope. That period of time might begin several months ahead of the perpetrator actually being charged. In particular, should contributions that Victims Service suggests that the appropriate timeframe should be on the average length of criminal investigations as a proxy for when the investigation for the offence is likely to have begun. This approach aims to capture any warning the alleged offender may have may have that criminal or civil trial
Issue 4: Process for recovering money Given there may be multiple compensation orders or other debts attributed to a perpetrator, it would not be appropriate for all the relevant contributions to be paid directly to an uncompensated or partially compensated victim with a compensation order. Further, trustees may be uncomfortable with any requirement to pay someone other than the member or the contributor. It is proposed that the trustee would be required to release relevant funds either: by paying them into court, which distributes the funds according to its usual processes; or by releasing them through some mechanism to centralise and streamline release and payment. For example, there are existing processes in place to facilitate release of amounts from superannuation, which might be built upon to facilitate releases for victims of crime. Victims Service supports either mechanism for distributing the relevant funds to victims. Both options suggested here are viable. Where the offender has multiple claims against them, the process for payment should ensure that the available funds are fairly distributed between victims so that one victim does not receive payment before another and funds are exhausted early. To further avoid the perpetrator not paying victims, any claw-back mechanism would also need to apply to voluntary contributions to the perpetrator’s account by any person, or any contributions ‘gifted’ by the perpetrator to another person’s account. Supported.