is available on our website: Submission deadline: 31 October 2017 Please note this deadline is the closing date for submissions to both the first consultation paper on the first terms of reference and this supplementary consultation paper on the supplementary terms of reference. a s r r o o i p
Questions Chapter 5 Eligibility for assistance The victim categories 1 How do the victim categories in the Act impact on people applying to VOCAT for financial assistance? 2 Should the victim categories in the Act be amended? If so, what changes should be made to the Act? The definition of an ‘act of violence’ 3 How does the definition of ‘act of violence’ in the Act impact on people applying to VOCAT for financial assistance? 4 Should the definition of ‘act of violence’ in the Act be amended to include other offences? If so, what offences should be included? 5 Should the definition of ‘act of violence’ in the Act be amended to include behaviour? If so, what forms of non-criminal behaviour should be included? The definition of ‘injury’ 6 How does the definition of ‘injury’ in the Act impact on people applying to VOCAT for financial assistance? 7 Should the definition of ‘injury’ in the Act be amended to include other forms of harm? If so, what forms of harm should be included? 8 Should the requirement for injury in the Act be removed for victims of certain crimes? If so, for which categories of victim should the requirement be removed? The causation requirement 9 How does the requirement for victims to establish that their injury was the ‘direct result’ of the act of violence impact on people applying to VOCAT for assistance? Should this causation requirement be amended? If so, what changes should be made to the causation requirement? non-
10 See Victims of Crime Assistance Act 1996 (Vic) and Victims’ Charter Act 2006 (Vic). The Commission notes the government’s use of ‘victim survivors’ and discussion of terminology in Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) v. 5
cases, referral is mandatory. 17 Magistrates’ Court of Victoria, Salvation Army Court and Prison Services (2012) <services /support-and-assistance-services>. 18 The family violence ‘system’ is comprised of a number of separate, yet interconnected, support components. See, eg, Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 19. 13
Time limit: 4 months from lodgement All supporting evidence filed with VOCAT Perpetrator notified* Directions hearing* s 33 application chambers determination made on filed material Matter listed for Tribunal hearing for determination Matter adjourned under s41 Offer accepted by applicant Offer not accepted by applicant ss 52 & 54 factors considered Final determination by VOCAT on balance of probabilities. Victim may give evidence and be Perpetrator may be present. Applicant successful Applicant unsuccessful Variation of award Appeal to VCAT—review of VOCAT decision s 62 refund of award required Payment made to applicant VOCAT decision upheld or overturned No payment made to applicant *If required
54 Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) ch 6. 55 Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017), 49-50 [6.74] – [6.79]. See also, Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2; Kelly Richards, Children’s Exposure to Domestic Violence in Australia, Trends and Issues in Crime and Criminal Justice No 419 (Australian Institute of Criminology, 2011); Monica Campo, Children’s Exposure to Domestic and Family Violence: Key Issues and Responses, CFCA Paper No 36 (Australian Institute of Family Studies, 2015); K O’Brian et al, ‘Lifting the Cloak of Silence: Resilient Australian Women’s Reflected Memories of Their Childhood Experiences of Witnessing Domestic Violence’ (2013) 28 Journal of Family Violence 95; United Nations Children’s Fund, Behind Closed Doors: The Impact of Domestic Violence on Children (UNICEF, 2006). 56 See, eg, David Finkelhor et al, ‘Prevalence of Childhood Exposure to Violence, Crime and Abuse: Results from the National Survey of Children’s Exposure to Violence’ (2015) 169 (8) JAMA Pediatrics 746; Daniel Flannery, Kelly Wester and Mark Singer, ‘Impact of Exposure to Violence in School on Child and Adolescent Mental Health and Behavior’ (2004) 32(5) Journal of Community Psychology 559. 45
<https://aifs.gov.au / publications /ripple-effects-sexual-assault /secondary-victims-sexual-assault>; Diane Daane, ‘The Ripple Effects: Secondary Sexual Assault Survivors’ in Frances Reddington and Betsy Wright Kreisel (eds) Sexual Assault: The Victims, the Perpetrators and the Criminal Justice System (Carolina Academic Press, 2005). 88 Victims of Crime Assistance Act 2006 (NT) s 11(2)(a) and (b). 49
158 81 Ibid 89 [9.45]. See also Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime 82 Ibid 197. 83 Women’s Legal Service Victoria, Submission No 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family 84 Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (RMIT University, 2014) 6. 85 Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 90 [9.57]. 86 [2015] VSC 245 (5 June 2015) [28]. a 0 0
160 90 Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal 91 Ibid. 92 Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal 25). s s 0 0 0
96 Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 91 [9.67] – [9.69]. 97 See the comparative table of Australian jurisdictions at Appendix B. 98 Cathy Kezelman and Pam Stavropoulos, ‘Dealing with Trauma’ (2016) 90 (10) Law Institute Journal 36. 161
23 Victims of Crime Assistance Act 1996 (Vic) s 1(2)(b). 24 Ibid s 8A. 25 Ibid s 13(2)(c). 26 Ibid s 54. 27 [2011] VCAT 2429 (21 December 2011). 28 Ibid [24] – [26]. 29 David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34 (2) Legal
208 40 In 2015–16, judicial registrars made 21.9 per cent of final awards. See Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 41 Ibid 9. 42 The consolidated fund comprises all revenue raised by and granted to the state. 43 Victims of Crime Assistance Act 1996 (Vic) s 69; Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 63.
16. Conclusion 16.1 This supplementary consultation paper discusses a range of issues to assist the Victorian Law Reform Commission (the Commission) in understanding the operation and effectiveness of the Victims of Crime Assistance Act 1996 (the Act) and the Victims of Crime Assistance Tribunal (VOCAT) for all victims of crime, and whether there are other models that would more effectively deliver assistance. This consultation paper therefore sets out a number of questions and options for reform. 16.2 This paper does not represent concluded views on the matters raised by the supplementary terms of reference. Those conclusions will be stated in the Commission’s report addressing both the first terms of reference and the supplementary terms of reference to be delivered to the Attorney-General by 27 July 2018. 16.3 The Commission welcomes submissions from all parts of the community. It particularly invites submissions from victims, persons affected, professionals, stakeholders and the community who have had direct experience of VOCAT processes and/or whose work interacts with VOCAT. 16.4 You can provide input into the Commission’s review by responding to the specific questions posed throughout the paper. These questions are also included at the beginning of this paper. You may choose to answer some, but not all questions. Alternatively, you may wish to provide a response that does not address individual questions posed throughout the paper, but nonetheless relates to the issues outlined in the terms of reference. 16.5 To allow the Commission time to consider your views before deciding on final recommendations, submissions are due by 31 October 2017. 16.6 Your responses to these questions will assist the Commission determine whether Victoria’s model of state-funded financial assistance for victims of crime, through the Act and VOCAT, is the most appropriate model.
NT QLD SA Tasmania WA Victims of Crime Assistance Act 2006 (NT) Victims of Crime Assistance Act 2009 (Qld) Victims of Crime Act 2001 (SA) Victims of Crime Assistance Act 1976 (Tas) Criminal Injuries Compensation Act 2003 (WA) Yes—victims of domestic violence, victims of sexual assault, victims of child abuse and victims of a pattern of abuse. Yes—victims of domestic violence, victims of sexual assault, child victims (under 16), elderly victims (over 60), victims with impaired capacity, victims of an act of violence perpetrated by someone in a power, influence or trust over them, victims of a series of related acts of violence, victims of act of violence involving deprivation of liberty and victims who suffer serious injury/ very serious injury/ very serious disease. No. Yes—victims of more than one offence. No. Financial assistance for financial loss and counselling. Can also be awarded a lump sum for certain ‘compensable injuries’ and ‘compensable violent acts’. $40,000, including a maximum of $40,000 for a single ‘compensable injury’ or a single ‘compensable violent act’. Counselling, medical expenses, incidental travel expenses, report expenses as part of application, loss of earnings, damage to clothing worn at the time, and expenses to assist in recovery in exceptional circumstances. Can also be awarded ‘special assistance’, which is a lump sum that varies according to the type of offence. Expressly excludes property damage. $75,000 plus $500 for legal costs. This includes a maximum of $20,000 for loss of earnings and ‘special assistance’ of up to $10,000. ‘Compensation for the injury arising from the offence.’ Includes financial and non- financial loss. $100,000, including a maximum of $100,000 for non-financial loss. Amounts prescribed in the Act are subject to indexation. Expenses incurred as a result of the injury, medical, dental, psychological and counselling services required in the future, loss of wages or salary, pain and suffering. Expressly excludes property loss/ damage. $30,000 for a primary victim of a single offence and $50,000 for a primary victim of multiple offences. for the injury and any loss suffered. $75,000 for offences committed after the commencement of the Act. 229
Victoria ACT NSW Legislation Victims of Crime Assistance Act 1996 (Vic) Victims of Crime (Financial Assistance) Act 2016 (ACT) Victims Rights and Support Act 2013 (NSW) Are related criminal acts treated as a single criminal act? Yes, unless in the circumstances they ought not to be. But a higher maximum award of ‘special financial assistance’ is available for a series of related criminal acts in certain circumstances. Yes, if they are likely to form a single ongoing offence or if assistance would be disproportionate if treated separately. Notice must be given to the applicant. But a series of offences is a ‘circumstance of aggravation’, which can result in a higher ‘recognition payment’. Yes, unless in the circumstances they ought not to be. But a higher ‘recognition payment’ is available for a series of related criminal acts in certain circumstances. Time limit 2 years after the act of violence. But time limit can be extended in certain circumstances, having regard to factors such as whether the offender in position of power, influence or trust. 3 years after the act of violence or the day the child victim turns 18. But time limit can be extended in certain circumstances, having regard to factors such as whether the alleged offender was in a position of power, trust or authority. 2 years after the act of violence or the day the child victim turns 18. But time limit is 10 years for victims of domestic violence, child abuse or sexual assault. No time limit for a child victim of a sexual offence. Time limit can also be extended if primary victim subsequently dies as a direct result of the act of violence. Can a failure to report to police lead to a refusal of an application? Yes—failure to report to police in a reasonable time results in mandatory refusal, unless special circumstances exist. Yes—failure to report to police can lead to a refusal of application. But ‘special reporting class victims’ can report to other professionals, including doctors, counsellors and government agencies instead. Special reporting class victims include child victims, victims of sexual offences and victims of an offender who was in a position of trust, influence or power. Yes—must consider whether reported to police within reasonable time. May have regard to the nature of the relationship between the victim and perpetrator. Can also consider whether the act of violence was reported to a health or other relevant agency. 230
Victoria ACT NSW Legislation Victims of Crime Assistance Act 1996 (Vic) Victims of Crime (Financial Assistance) Act 2016 (ACT) Victims Rights and Support Act 2013 (NSW) Can a failure to assist/ co-operate with Police lead to a refusal of an application? Yes—failure to assist police results in mandatory refusal, unless special circumstances exist. Yes—mandatory refusal if applicant has unreasonably failed to give assistance to police. Yes—in determining whether or not to grant the application/ the amount of the award, Commissioner must have regard to failure to assist police. Can an applicant’s contributory conduct lead to refusal of an application? Yes—in determining whether or not to make an award, must consider whether the applicant ‘provoked’ the act of violence, any condition/ disposition of the applicant that contributed to injury/ death or whether the perpetrator will benefit from the award. Mandatory refusal if the application is made in collusion with the alleged offender. Yes—award must be reduced if applicant contributed to the injury, participated in or assisted in the act of violence, encouraged someone else to assist in the act of violence or failed to mitigate extent of the injury. Yes—must consider whether victim contributed/ encouraged/ assisted the act of violence, any behaviour (including past criminal behaviour) if it directly or indirectly contributed to the applicant’s injury/ death or whether victim failed to mitigate injury (ie by not seeking medical treatment). But can consider dynamics of sexual assault/ domestic violence in relation to mitigation of injury. Can an applicant’s character/ behaviour lead to refusal of an application where it did not contribute (either directly or indirectly) to the act of violence or injury/ death? Yes—in determining whether or not to make an award, must consider the applicant’s character, behaviour (including past criminal behaviour) or attitude of the applicant ‘at any time’. No. No. Perpetrator notification Yes—discretionary. Yes—discretionary. Perpetrator only notified if a provisional restitution order is made. 232
NT QLD SA Tasmania WA Victims of Crime Assistance Act 2006 (NT) Victims of Crime Assistance Act 2009 (Qld) Victims of Crime Act 2001 (SA) Victims of Crime Assistance Act 1976 (Tas) Criminal Injuries Compensation Act 2003 (WA) Yes—mandatory refusal if applicant failed without reasonable excuse to assist the police in a material way in the investigation or prosecution of the offender. Yes—award must be refused if the applicant made the application in collusion with the offender or the injury/ death occurred during the commission of an indictable offence by the applicant. Yes—mandatory refusal if applicant has not given reasonable assistance to police and that failure prevented the arrest or prosecution of the offender. However, domestic violence is a factor to which the decision maker must have regard in deciding whether the victim had a reasonable excuse not to assist police. Yes—award must be refused if the applicant conspired with the perpetrator or if the main reason for the act of violence was the primary victim’s involvement in criminal activity (including previous involvement in criminal activity). Yes—mandatory refusal if applicant refused or failed to provide information, give evidence or to co-operate in the investigation or prosecution of the offence without reasonable excuse. Yes—award must be refused if the claimant was engaged in conduct constituting an indicatable offence and that conduct materially contributed to the claimant’s risk of injury, unless failure to compensate would be unjust in the circumstances. In determining the award, the court must also have regard to any conduct on the part of the claimant that directly or indirectly contributed to the offence or injury. Yes—mandatory refusal if the applicant failed to reasonably assist in the identification, apprehension or prosecution of alleged offender. Yes—in determining whether to refuse/ reduce an award, must have regard to any behaviour, condition, attitude or disposition of the victim that appears to have directly or indirectly contributed to the injury/ death. the identification, apprehension or prosecution of alleged offender. Yes—award for mental shock must be refused if the victim was committing a separate offence at the time or if there is a relationship or connection between the victim and the offender and the award is likely to benefit the offender. Can also refuse/ reduce award if the behaviour, condition, attitude or disposition of the victim directly or indirectly contributed to the injury/ death. No. No. No. No. No. Yes—discretionary. Perpetrator only notified if the State subsequently to recover from him or her. m
Victoria ACT NSW Legislation Victims of Crime Assistance Act 1996 (Vic) Victims of Crime (Financial Assistance) Act 2016 (ACT) Victims Rights and Support Act 2013 (NSW) Judicial or administrative?2 sitting as members of the Victims of Crime Assistance Tribunal. Administrative— Victims of Crime Commissioner (head of Victim Support ACT). Administrative— Commissioner for Victims Rights (head of Victims Services, NSW Justice Department). Hearings Hearings if applicant elects or Tribunal requires. No hearings. No hearings. Is there a victim levy? No. Yes. Yes. 234
NT QLD SA Tasmania WA Victims of Crime Assistance Act 2006 (NT) Victims of Crime Assistance Act 2009 (Qld) Victims of Crime Act 2001 (SA) Victims of Crime Assistance Act 1976 (Tas) Criminal Injuries Compensation Act 2003 (WA) Administrative— assessors appointed by the Minister. Administrative— government assessor chosen by the scheme manager. First administrative, then judicial— claimant must first apply to Crown Solicitor. If no agreement is reached within 3 months, claimant may apply to District Court. Administrative— independent Criminal Injuries Compensation Commissioners. appointed by the Governor for a 5 year term. No hearings. No hearings. Hearings only when applicant applies to the District Court. Hearings if applicant elects or Commissioner requires. Hearings if the assessor requires. Yes. No. Yes. Yes. No.
Sex of allegeo offender Male Female Date of Birth or approximate age Was the alleged offender a family member or domestic partner of the viclim?• Yes No If Yes.how are you related to the offender? I am their. .-------------------, (tt.g.wife, son,lather, ste sisrer. former domestic parmttr} This lnfonnallon ls for data collecllon purposes only) If more than two years have lapsed since the act of violence please outline your reasons for not filing an application within this time (f please 8lt8Ch addtion81 mmeriaJ if required. 4. REPORTING DETAILS Has the act of violence been reporteo to the Police? If yes.please provide the details: Yes 0 No Name RegisteredNo Rank Police Station Date of Report If no. you must provide a statutory declaration sett ng out the circumstances of the act of violence and provide the reason for the failure to report the matter to police. Statutory Declarat on attached? (? Yes 0 No Have criminal proceeoings commenced? Yes No Unknown Ate there intervention oroers relating to this matter? Yes No Case number (if known) If the incident occurreo in the workplace,was it reporteo to your employer? Yes 0 No 0 Has the act of violence been reporteo elsewhere? Yes 0 No 0 tf yes, please provide the details: 5.WHAT EFFECTS HAVE RESULTED FROM THE ACT OF VIOLENCE? Physical• Psychological• Grief.Stress or Trauma Prmnde details Yes 0 Yes 0 Yes 0 No 0 No 0 No 0 Did you attend a hospital If yes.what hospital? Yes No 0
t? Please supply and attacll details of any relevant insurance cover ife or hea h) or superannuation bener entitlements held and any payments daimed, received or to be received • By the applicant 0 provide detailS By the deceased 0 provide details 8.TYPE OF ASSISTANCE SOUGHT (a) Primary Victim 0 Special Financial Assistance (limp sumpayment for signiftcanl adverse effects suffered) 0 Counselling 0 MedicalE.xpenses 0 saretyR· elated Expenses 0 Loss of Earning 0 Loss/Damage to clothing 0 Other (b) Secondary Victim 0 Counselling 0 MedicalExpenses 0 Loss of Earnings • 0 Other• (c) Related Victim 0 Distress 0 FuneralExpenses 0 Counselling 0 MedicalExpenses 0 Other • (d) Application for payment of funeral expenses only 0 •Evidence of exceptional circumstances may be required. Page 4 of 16 May2:0·16