Call for submissions The Victorian Law Reform Commission (the Commission) invites your comments on this consultation paper. What is a submission? Submissions are your ideas or opinions about the law under review and how to improve it. This consultation paper contains a number of questions, listed on page xxiv, that seek to guide submissions. You do not have to address all of the questions to make a submission. 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. Submissions can be anything from a personal story about how the law has affected you to a research paper complete with footnotes and bibliography. We want to hear from anyone who has experience with the law under review. Please note that the Commission does not provide legal advice. What is my submission used for? Submissions help us understand different views and experiences about the law we are researching. We use the information we receive in submissions, and from consultations, along with other research, to write our reports and develop recommendations. How do I make a submission? You can make a submission in writing, or verbally to one of the Commission staff if you need assistance. There is no required format for submissions, though we prefer them to be in writing, and we encourage you to answer the questions contained in each chapter and set out on page xxiv. Submissions can be made by: Completing the online form at Email: Mail: GPO Box 4637, Melbourne Vic 3001 Fax: (03) 8608 7888 Phone: (03) 8608 7800, 1300 666 557 (TTY) or 1300 666 555 (cost of a local call)
The VOCAT Process for Family Violence Victims in context* Family violence—within the meaning of the Family Violence Protection Act 2008 Family violence incident Act of act—in Victoria directly resulting in injury or death Crime—within the meaning of the Crimes Act 1958 Applicant is a primary/secondary or related victim or application is for funeral expenses only Family violence intervention order/ family violence safety notice Victims of Crime Assistance Tribunal Criminal proceedings (VOCAT) Offender convicted Offender not convicted Application for financial assistance 2-year time limit from act of violence Recovery under the Sentencing Act 1991 Civil claim for damages at common law Compensatory/damages type claims arising from assaults, stalking etc. However, these proceedings are Application for interim assistance (counselling/safety related expenses) Lodgement of VOCAT application form Request for time extension Application out of time uncommon Request made for application to be determined at hearing or s 33 option requested—application to be determined on the papers Payment to victim or service provider Letter from VOCAT acknowledging receipt of application and enclosing ‘Directions for Preparation’ form to help applicants provide the supporting evidence required —
Payment to victim or service provider 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 adjourned under s41 Offer accepted by applicant Offer not accepted by applicant ss 52 & 54 factors considered by VOCAT on balance of probabilities. Victim may give evidence and be cross-examined. 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 made to applicant n
14 Ibid s 13(2). 15 Ibid s 13(4). 16 Ibid s 15. 17 Ibid s 12(1). 18 Ibid ss 8 (4) and 13(3) 19 [2006] VCAT 1061 (9 June 2006). 20 Ibid [41] – [43]. 21 Ibid [51] – [63]. 22 [2011] VCAT 1237 (8 July 2011). 60 23 Ibid [49].
121 Victims’ Rights and Support Act 2013 (NSW) s 44 (c) , Victims of Crime (Financial Assistance) Act 2016 (ACT) s 31(3) and (4) and Victims of s 122 Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) (not yet in force) s 54. 123 Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) (not yet in force) s 55(4). 124 See Appendix B. See also New South Wales Department of Attorney General and Justice, Review of the Victims Compensation Fund 125 New South Wales Department of Attorney General and Justice, Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 98. 126 Ministry of Justice and Criminal Injuries Compensation Authority (UK), Criminal Injuries Compensation: A Guide (2014) <https://www.gov. uk /guidance /criminal-injuries-compensation-a-guide#co-operation-with-the-police-and-the-criminal-justice-system>. 127 Women’s Legal Service Victoria, Submission No 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 52. 128 Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 245. a )
Questions (2016) <>. 28 Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 81. 29 Ibid. 30 Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 37. 31 Ibid 9. 117
36 Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper 37 The Victims of Crime Assistance Bill 1996 (Vic) Second Reading Speech, Victoria, Parliamentary Debates, Legislative Assembly, 31 October 38 Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper 39 Victims of Crime Assistance Act 1996 (Vic) s 1(4). 40 Department of Premier and Cabinet (Vic), Victim-centred Justice, (2016) < /victim-centred-justice.html>. - / )
Appendix B: Victim Compensation Schemes: Comparative Table Victim compensation and financial assistance schemes in Australia – a comparative table1 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) Eligibility Primary victims, secondary victims and related victims. Primary victims, related victims and homicide witnesses. Primary victims, secondary victims and family victims. Proof/evidence of offence No charge or conviction required question of fact decided on the balance of probabilities. No charge or conviction required - must be satisfied on the balance of probabilities about any matter relevant to application including whether an offence occurred. No charge or conviction required - documentary evidence must support that act of violence occurred on the balance of probabilities. Types of crimes covered ‘Act of violence’. Violent offences resulting in injury or death. Includes assault, sexual offences, stalking, child stealing and kidnapping. ‘Act of violence’. Offences resulting in injury or death. Includes offences against the person, sexual offences, robbery and female genital mutilation. Also includes specific ‘family violence offences’, such as property offences and breach of family violence order. ‘Act of violence’. Violent offences resulting in injury or death. Specifically extends to domestic violence. Is there a requirement for ‘injury’? Yes—‘injury’ means actual physical bodily harm, mental illness or disorder and pregnancy. Can be ‘significant adverse effect’ for primary victims claiming special financial assistance. Yes—‘injury’ means physical injury, mental illness and mental disorder. But recognises broader category of injuries for family violence and sexual offences, including unplanned pregnancy, violation, reduced sense of worth, increased fear insecurity. Yes—‘injury’ means actual bodily harm, grievous bodily harm and psychological or psychiatric harm. 164 1 This table provides a summary of victims’ compensation and financial assistance schemes operating in each Australian State and Territoryas at May 2017. This table is not intended as a comprehensive reference. The scope of the table is limited to issues relevant to the Terms of Reference. 2 In March 2017, Queensland passed the Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld), which will amend the Victims of
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) Is family violence specifically recognised under the Act? No, but consideration of whether alleged offender was in a position of power, influence or trust in some circumstances. Yes. ‘Act of violence’ includes ‘family violence offences’ and the Act expressly recognises family violence-related injuries including unplanned pregnancy, violation, reduced sense of and increased fear/ insecurity. Yes, must have regard to family violence when considering whether the victim failed to take reasonable steps to mitigate the extent of an injury. Different time limits also apply for lodging an application for family violence. Is family violence defined? No. Yes – sets out a range of family violence offences, including arson, property damage, burglary, offences involving firearms, driving offences and breach of family violence protection order. Yes – defined as an act that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 166
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) Categories of awards for primary victims Counselling, medical expenses, loss of earnings, loss/damage to clothing worn at the time, safety- related expenses and, in exceptional circumstances, expenses to assist in recovery. Can also be awarded ‘special financial assistance’, which is a lump sum that varies according to the type of offence. Expressly excludes property loss/ damage. Financial assistance for immediate needs and economic loss. Can also be awarded a ‘recognition payment’, which is a lump sum that varies according to the type of offence. Counselling, financial assistance for immediate needs in order to secure victim’s safety/ health/ well-being, and financial assistance for economic loss. Can also be awarded a ‘recognition payment’, which is a lump sum that varies according to the type of offence. Expressly excludes property loss/ damage. Quantum of awards for primary victims – maximum amount $60,000 plus $10,000 ‘special financial assistance’. Includes a maximum of $20,000 for loss of earnings. Total maximum of $50,000. Includes a maximum of $10,000 for immediate needs, $30,000 for loss of earnings and a ‘recognition payment’ of up to $26,250. But for a primary victim of a ‘domestic violence offence’ only, the total maximum award is $10,000. These amounts are subject to indexation. A maximum of $5,000 for immediate needs, $5,500 for counselling services, $30,000 for economic loss, and a ‘recognition payment’ of up to $10,000. Are related criminal acts treated as a single criminal act? Yes, unless in the circumstances they ought not to be. But 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. 168
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) 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. Decision maker/relevant agency Judicial – Magistrates sitting as members of the Victims of Crime Assistance Tribunal. Hearings if applicant elects or Tribunal requires. Administrative – Victims of Crime Commissioner (head of Victim Support ACT). No hearings. Administrative – Commissioner for Victims Rights (head of Victims Services, NSW Justice Department). No hearings. Perpetrator notification Yes—discretionary. Yes—discretionary. Perpetrator only notified if a provisional restitution order is made. 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. 170
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 character/behaviour /contributory conduct lead to refusal of an application? Yes—in determining whether or not to make an award, must consider the applicant’s character/ behaviour (including past criminal behaviour) as well as whether the applicant ‘provoked’ or contributed to injury. Mandatory refusal if the application is made in collusion with the alleged offender. Yes—award must be reduced if applicant contributed to the injury or failed to mitigate extent of the injury. Yes—must consider any behaviour (including past criminal behaviour) or whether victim contributed/ encouraged/ assisted offence or whether victim failed to mitigate injury (i.e. by not seeking medical treatment). But can consider dynamics of sexual assault/ domestic violence in relation to mitigation of injury. Can an award be refused on the basis a perpetrator may benefit? Yes—must consider whether alleged perpetrator will benefit either directly or indirectly. No. No. But in making a decision as to whom the assistance should be paid, must have regard to whether alleged offender may benefit from the payment. 172