Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper

1. Introduction

Referral to the Commission

1.1 On 22 December 2016, the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission to review and report on the provision of state-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996 (Vic).

The terms of reference

[Referral to the Victorian Law Reform Commission pursuant to section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) on 22 December 2016.]

The Victorian Law Reform Commission is asked to review and report by 31 January 2018 on the provision of State-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996.

In conducting the review, the Commission should consider the following matters raised by Recommendation 106 of the Royal Commission into Family Violence:

1) The eligibility test and whether this should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury

2) Within the total financial assistance currently available, have regard to the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims

3) The requirement to notify a perpetrator, especially where the matter has not been reported to police, or no charges have been laid, or the prosecution is discontinued or the person is acquitted

4) The matters giving rise to refusal of an application except in special circumstances

5) Procedural matters to expedite the making of an award

The Commission’s approach

Reference framework

1.2 This reference to the Victorian Law Reform Commission (the Commission) is part of the response by the Victorian Government to the recommendations of the Victorian Royal Commission into Family Violence (the Royal Commission).

1.3 Fundamentally, this reference seeks answers to the question: what changes should be made to the Victims of Crime Assistance Act 1996 (Vic) to better assist victims of family violence rebuild their lives and recover?

1.4 In this consultation paper, the Victims of Crime Assistance Act 1996 (Vic) is referred to as ‘the Act’ unless the context otherwise requires.

1.5 State-funded financial assistance and compensation to victims^[1] has been described as a core component of a just legal response to family violence.^[2] The United Nations Committee on the Elimination of all Forms of Discrimination against Women has provided a General Recommendation for states to develop effective compensatory provisions to protect women against all violence, including family violence.^[3] Isobelle Barrett Meyering describes the provision of state-funded financial assistance as good practice within a broader legal response to family violence.^[4] The Australian Law Reform Commission and New South Wales Law Reform Commission have also confirmed that such schemes are an important element of victim support.^[5]

1.6 The benefits of state-funded financial assistance for victims of family violence are both practical and symbolic.^[6] For such victims, the benefits can include enabling a victim to leave an abusive relationship by providing immediate financial assistance to relocate. The process itself may also validate a victim’s experiences. This can be particularly important for victims of family violence, given such violence is often associated with low prosecution and conviction rates.^[7]

1.7 However, as recognised by the Royal Commission, victims of family violence face significant barriers in accessing state-funded financial assistance under the Act.^[8]

1.8 These barriers are not unique to Victoria. Previous reviews have also found that other state and territory schemes may not adequately recognise the nature and dynamics of family violence, potentially discriminating unfairly against victims of family violence as compared to other victims of crime.^[9] Academic literature has also observed similar barriers:

one of the greatest impediments to women’s access to victim compensation is the legislative requirements of the schemes themselves…[V]ictim compensation schemes, like the criminal law, are largely premised on a ‘stranger violence model’. The schemes assume that the victim does not know the assailant, that the violence is a random act and that the victim is not dependent on the assailant.^[10]

1.9 While state-funded financial assistance is accepted as a core component of responding to the harms of family violence, it is not established that such assistance is being realised for victims of family violence. Therefore, this reference considers what changes should be made to the Act to assist family violence victims to rebuild their lives and recover.

Scope of the reference

1.10 The terms of reference ask the Commission to review and report on the operation of the Act as it applies to victims of family violence. Specifically, the Commission has been asked to consider the following matters raised by Recommendation 106 of the Royal Commission:

• the eligibility test under the Act

• the categories and quantum (amount) of awards

• requirements to notify a perpetrator about a Victims of Crime Assistance Tribunal (VOCAT) application

• the matters giving rise to refusal of an application

• procedural matters to expedite (speed up) the making of an award.

1.11 Accordingly, the terms of reference require the Commission to consider how the purpose and objectives of the Act are realised for family violence victims. That is, to what extent the Act:

• assists family violence victims to recover from crime by paying financial assistance for expenses incurred or likely to be incurred as a direct result of the crime^[11]

• pays family violence victims financial assistance (including special financial assistance) as a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime^[12]

• allows family violence victims to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.^[13]

1.12 The Act’s purpose and objectives also state that:

• awards of financial assistance (including special financial assistance) are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise^[14]

• the scheme is intended to complement other services provided by government to victims of crime.^[15]

1.13 By examining how the Act’s purpose and objectives are realised for family violence victims, the terms of reference require the Commission to consider whether the Act unfairly limits access to financial assistance for victims of family violence as compared to other victims of crime.^[16] The terms of reference also require the Commission to examine what changes should be made to the Act to help family violence victims rebuild their lives and recover.

1.14 Given the defined scope of the reference, it is not intended to re-examine broader matters relating to the family violence service system.^[17] These issues have been extensively covered by the Royal Commission, which undertook over 800 community consultations, held 25 days of public hearings and assessed almost 1000 written submissions.^[18]

1.15 The breadth and depth of the Royal Commission’s examination of current programs, laws and policies provide a solid foundation for this reference to focus specifically on the provision of state-funded financial assistance to victims of family violence under the Act.

1.16 This reference will not re-examine broader matters regarding victims of crime, compensation or victim assistance programs. These issues have recently been considered by the Victorian Law Reform Commission’s report The Role of Victims of Crime in the Criminal Trial Process, which, amongst other things, considered improvements to the victim support system more generally.^[19]

1.17 However, this consultation paper will refer to the findings and recommendations of the Royal Commission and the Victorian Law Reform Commission’s victims of crime reference to the extent they provide context for, and raise matters directly relevant to, this reference.

1.18 Consistent with the terms of reference, this reference will not review the total financial assistance currently available under the Act. This issue is outside the scope of this reference.

Terminology

1.19 This part explains why the Commission has used particular terminology in this consultation paper, noting there is not universal agreement about the use of particular terms.^[20]

Victims of family violence

1.20 The terms of reference use the words ‘victims of family violence’ to describe people affected by family violence. This reference retains the use of ‘victims of family violence’ to ensure consistency with both the terms of reference and the legislative framework in Victoria providing for victim support and rights.^[21]

1.21 The terms of reference do not define either ‘victim’ or ‘family violence’. It is beyond the scope of this reference to consider or review definitions of either ‘victim’ or ‘family violence’. Therefore, the Commission uses the term ‘family violence’ as defined in the Family Violence Protection Act 2008 (Vic).^[22] That is, ‘family violence’ means any behaviour that:

• is physically, sexually, emotionally, psychologically or economically abusive

• is threatening, coercive, controlling, dominating and causes a family member to fear for the safety or wellbeing of themselves or another family member

• causes a child to hear, witness or otherwise be exposed to the effects of the above behaviours.^[23]

1.22 For the purposes of this reference, a ‘victim of family violence’ is therefore any person who has been the victim of any of the above behaviours, whether or not there has been a criminal prosecution or conviction in relation to them.^[24] Not all behaviours captured by the definition of ‘family violence’ constitute criminal offences. The Royal Commission

also used the definition of family violence from the Family Violence Protection Act 2008 (Vic).^[25]

Perpetrators of violence

1.23 The terms of reference use the term ‘perpetrator’ to describe someone who uses family violence.

1.24 For the purposes of this reference, ‘perpetrator’ means any person who is alleged to have used family violence, whether or not the behaviours have been reported to police or whether or not there has been a criminal prosecution or conviction. This approach is consistent with the terminology used in the terms of reference and the legislative framework under the Family Violence Protection Act 2008 (Vic).^[26]

1.25 The Commission notes that the term ‘perpetrator’ is not used in the Act but is used, although not defined, in the Family Violence Protection Act 2008 (Vic).

‘Financial assistance’ and ‘compensation’

1.26 Some reports and literature refer to state-funded financial assistance as ‘victim compensation’ or ‘victim compensation schemes’.^[27]

1.27 Victoria’s legislative framework expressly provides that the Act does not establish a ‘compensation scheme’ and that any awards are not intended to reflect the level of compensation that may be available through other avenues. However, other jurisdictions and academic literature sometimes use the term ‘compensation’ to refer to state-funded financial assistance schemes similar to what is provided for under the Act. Where discussing or referring to that literature, the Commission may adopt consistent terminology for comparative purposes only.

1.28 For the purposes of this reference, the term ‘financial assistance’ refers to the provision of state-funded financial assistance under the Act. Where other forms of financial assistance are referred to, the consultation paper expressly notes the difference.^[28]

Preliminary meetings

1.29 As part of its preliminary research, the Commission conducted meetings with representatives of key stakeholders from the courts and judiciary, government departments, family violence advocacy or service provision, legal services and victim support.

1.30 The purpose of these preliminary meetings was to enable the Commission to gain a better understanding of the key issues, including impacts on victims of family violence, and proposals for reform raised in submissions to the Royal Commission, to assist with identifying proposals and options for reform for this consultation paper.

1.31 Preliminary meetings do not form part of the Commission’s formal consultations for this reference. Formal consultations will be conducted in conjunction with the publication of this consultation paper, along with a call for public submissions.

Consultation paper

1.32 The findings of the Royal Commission, including submissions made to it, the Commission’s preliminary consultations, and other research form the basis of this consultation paper.

1.33 The structure of this consultation paper is based on its terms of reference and the issues identified by the Royal Commission and during the preliminary consultations.

1.34 Part One of this consultation paper provides background information about the scope of the reference and our approach. It also provides an overview of family violence in our community and recent policy and reform activities.

1.35 Part One also introduces the family violence and victim assistance system. It provides an overview of state-funded financial assistance for victims of family violence under the Act and refers to similar schemes across other states and territories and internationally.

1.36 Part Two of this consultation paper examines the key issues relevant to this reference. These issues include eligibility, the category and quantum (amount) of awards, the form and timing of applications, VOCAT notification provisions, factors relevant in the determination of awards, timeliness of awards and review, variation and refunding of awards as they impact on victims of family violence.

1.37 Part Two of this consultation paper also discusses possible options for reform and asks specific questions to guide the public and stakeholders in preparing submissions during the consultation phase.

1.38 Part Three of this consultation paper provides broader contextual analysis of the Act and associated issues including community awareness and accessibility of the scheme as it relates to family violence victims. Part Three also examines aspects of the Act and VOCAT that extend beyond the provision of financial assistance. This includes consideration of VOCAT’s potential role as a therapeutic forum for acknowledging victims of crime.

1.39 Finally, Part Three summarises some of the key issues raised for the purposes of examining whether the purpose and objectives of the Act are realised for victims of family violence.

1.40 This consultation paper does not represent any final conclusions or views on the matters raised.

Formal consultation process

1.41 The next stage of the reference will involve consulting with key stakeholders, interested organisations and individuals to further examine the issues raised in this consultation paper, seeking views on the questions posed, and to develop and test options for reform of the Act.

1.42 The Commission intends to consult with the judiciary, victim support and advocacy organisations (government and non-government), family violence support and advocacy organisations, government departments, legal services and key academics.

1.43 In particular, the Commission seeks the views of individuals with direct experience of VOCAT processes, victim and family violence support workers who assist family violence victims to access VOCAT, and members of the legal profession whose work interacts with VOCAT. The Commission also welcomes submissions from members of the broader community.

1.44 The feedback and information the Commission receives from submissions and formal consultation, combined with additional research, will inform its recommendations to the Attorney-General.

1.45 A report setting out the Commission’s recommendations will be provided to the Attorney-General by the reporting date of 31 January 2018. Within 14 sitting days of receipt of the report, the Attorney-General must table the report in the Victorian Parliament. The Victorian Government will decide whether to implement the Commission’s recommendations. Legislative change will be decided by the Victorian Parliament.

1. ‘Compensation’ and ‘state-funded financial assistance’ are terms used in different jurisdictions to refer to payments made by the state to victims of crime. Refer to [1.19] for discussion of terminology used in this report, including ‘state-funded financial assistance’ and ‘compensation’. See also, for example, Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 2.

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2. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 189; Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 1.

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3. United Nations Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, 11th sess (1992).

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4. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 1.

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5. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 188.

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6. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 189 and Victims of Crime Assistance Act 1996 (Vic) s 1.

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7. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 3.

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8. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78.

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9. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 1389.

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10. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

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11. Victims of Crime Assistance Act 1996 (Vic) s 1(2)(a).

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12. Ibid s 1(2)(b).

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13. Ibid s 1(2)(c).

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14. Ibid s 1(3)

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15. Ibid s 1(4).

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16. Previous reviews have found that a number of provisions in victims’ compensation legislation may not adequately recognise the nature and dynamics of family violence and may potentially discriminate unfairly against victims of family violence as compared to other victims of crime. See, eg, Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 1389; Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws: Final Report, Project No 104 (2014) 173.

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17. The family violence service system includes specialist family violence services, police, courts and legal services, victim support, child and family services, health services and housing and homelessness services. Refer to discussion in Chapter 4, which summarises some of the core components of the family violence service system.

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18. Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 1.

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19. See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) xvii and Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 166–74. The Victorian Government has also recently indicated it will seek advice from the Sentencing Advisory Council about ways to improve court orders for compensation for victims of crime, see Office of the Premier (Vic), ‘Supporting Victims of Crime in the Justice System’ (Media Release,
    
    7 May 2017) 1.

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20. For discussion of terminology, see Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) v and Centre for Innovative Justice, Opportunities for Early Intervention: Bringing Perpetrators of Family Violence into View (RMIT University, 2015) 12–13.

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21. While acknowledging concerns about the term ‘victim’, maintaining this terminology ensures consistency with the terms of reference and victim-related legislation in Victoria, including the 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.

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22. Family Violence Protection Act 2008 (Vic) s 5.

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23. Ibid s 5(1).

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24. Other terms such as ‘domestic violence’ and ‘intimate partner violence’ used in other reports and literature will be accepted as encompassing the range of behaviours outlined in the Family Violence Protection Act 2008 (Vic). See, for example, The Lookout, Fact Sheet 7—Family Violence Statistics (2016) 1.

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25. Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 2.

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26. ‘Perpetrator’ is intended to include people who use family violence; offenders (people who have been criminally prosecuted for crimes related to family violence); alleged offenders (people who are alleged to have committed crimes relating to family violence); as well as respondents in family violence intervention order matters, whether or not criminal matters have proceeded.

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27. See, eg, Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 2.

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28. For example, family violence flexible support packages are also state-funded financial assistance; these are discussed in Chapter 11 as a comparison to the financial assistance available under the Act.

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