Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper
12. Review, variation and refund of awards
Introduction
12.1 This chapter discusses the process for review of awards of financial assistance under the Victims of Crime Assistance Act 1996 (Vic) (the Act).
12.2 This chapter also discusses when the Victims of Crime Assistance Tribunal (VOCAT) may vary an award or determine that an award needs to be refunded, and poses questions for consideration.
Review of Tribunal decisions
12.3 Any person whose ‘interests are affected’ can apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a final VOCAT decision.[1] Reviews may relate to:
• VOCAT refusing to make an award of assistance
• the amount of assistance awarded
• VOCAT refusing to vary an award
• the amount of assistance awarded when reviewing an award
• a decision that a person is required to make a refund to VOCAT
• the amount VOCAT determines must be refunded.[2]
12.4 In practice, those affected by VOCAT decisions are usually applicants and so reviews usually relate to VOCAT refusing to make an award or the amount of an award.
12.5 There are relatively few reviews, with only 11 applications for review made to VCAT in the 2015–2016 financial year. In six of these matters, the application for review was struck out, withdrawn or abandoned. In three of these cases, the original award was set aside and a new award made on review.[3]
Variation of an award
12.6 Under the Act, only the person to whom or for whose benefit an award of assistance has been made can apply for a variation of their award.[4] However, the Tribunal has very broad discretion and can vary awards ‘in any manner that the Tribunal thinks fit’.[5] VOCAT may vary the terms of an award or increase or decrease the amount of an award.[6]
12.7 In considering an application for variation, VOCAT must have regard to:
• any fresh evidence
• any change of circumstances
• any other payments received by the applicant
• any other relevant factors.[7]
12.8 The Tribunal must not vary an award if the application for variation is made more than six years after the original award was made, unless the applicant was then under 18.[8]
12.9 Case law indicates that the variation powers under section 60 are wide.[9] Variations can be made in situations ‘where new evidence is forthcoming that enables an award to be made either where no award was made at all or at a higher rate than could have been made on the material previously available’.[10]
12.10 Although there is broad provision for variation, variations must still be consistent with the Act. For example, an award for ‘other expenses actually and reasonably incurred’ under section 83 must still assist a victim’s recovery from the act of violence.[11] In the case of Davis v Victims of Crime Assistance Tribunal,[12] VCAT noted the ‘numerous’ awards of assistance made to the victim by way of variation for counselling, medical costs and education expenses.[13]
12.11 In 2015–16, VOCAT varied 986 awards for expenses already incurred and 588 for expenses not yet incurred.[14]
12.12 In preliminary consultations the Victorian Law Reform Commission (the Commission) heard that family violence victims frequently require award variations, particularly to pay for additional counselling.
Refund of awards
12.13 The Act enables VOCAT to require applicants to refund some or all of the financial assistance awarded to them if they later receive damages, compensation, assistance or other payments of any kind for injuries suffered as a result of a violent crime.[15]
12.14 Limited data is available on how often refunds may be required. VOCAT’s annual report does not state how often refunds are required.
Effect of review, variation and refund of awards on family violence victims
12.15 Given the limited data available on refund of awards, the Commission has not heard that these provisions adversely affect victims of family violence. Similarly, reviews of VOCAT awards are relatively rare (11 reviews in the 2015–2016 financial year).
12.16 However, provisions relating to variation of awards are of particular significance to family violence victims’ experiences of VOCAT. As the following case study from the VOCAT Annual Report 2015–16 shows, variation of an award can assist victims of family violence with their recovery:
Tamara was involved in a domestic violence assault in 2010 by her former partner. The alleged offender would become violent when he used drugs and alcohol. The alleged offender would take all of Tamara’s money, leaving her with no food or items to look after herself or her children. She reported the incidents to the police but did not want any further action taken as she was frightened of how the alleged offender would react. The Tribunal finalised her application by awarding 24 sessions of counselling and $1300 in special financial assistance. She was also awarded $5500 for a vehicle to assist with her recovery and $1000 associated with the cost of a computer to assist her in achieving her study goals. Tamara was granted a variation of the award approximately 6 months later to enable her and her children to go on a family holiday in the amount of $1779. Based on the material filed from Tamara’s psychologist, the Tribunal was satisfied that the family’s recovery would benefit from time away to reconnect and strengthen their bond as a family unit. Tamara recently sought a further variation so that she can attend a course educating her on the effects of Alcohol and Other Drugs …[16]
12.17 Tamara’s case study illustrates the flexibility of VOCAT in providing additional awards as situations change or new needs emerge. Variation of awards acknowledges that a victim’s journey is not always predictable, and needs may change over time.
12.18 However, the process of applying for a variation is not always smooth for victims of family violence. The Commission heard in preliminary consultations that each variation requires the hiring of a solicitor and evidence from professionals such as counsellors. Most variations in family violence matters relate to additional sessions required for counselling, where the variation is required for therapeutic purposes. It might be more practical and beneficial if practitioners could provide more counselling sessions at their discretion, rather than victims having to re-engage lawyers to seek financial assistance for more counselling.
12.19 Research by the Victims Support Agency in 2011 found that some victims found the process of seeking variation of an award to obtain further counselling frustrating because it involves many visits to lawyers. One victim stated: ‘You want it to be over and that dragged it on substantially longer … which is why I think a lot of people wouldn’t go through with it.’[17] During preliminary consultations, the Commission heard that the process was overly legalistic and burdensome, that solicitors should not need to be involved and that an administrative process would be simpler.
Discussion and options for reform
12.20 Awards can be varied under equivalent legislation in most other Australian states and territories. Often, a victim’s circumstances must have changed and variations must be sought within a specific time period, although these time limits vary in each jurisdiction and range from between three to seven years.[18]
12.21 Further research is required into the circumstances in which awards are varied in the context of family violence, and the value of variations in addressing the specific needs of family violence victims. In addition, barriers experienced by victims during the variation process require further exploration.
12.22 The Commission seeks information on family violence victims’ experiences of the VOCAT refund or review process. In addition, the Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on the following questions.
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Victims of Crime Assistance Act 1996 (Vic) s 59(1).
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Ibid s 59(1)(a)–(e).
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Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 61.
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Victims of Crime Assistance Act 1996 (Vic) s 60(1).
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Ibid. Although the Tribunal is still bound by the provisions of the Act relating to the payment of and amounts of assistance: s 60 (4).
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Ibid s 60(1).
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Ibid s 60(3).
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Ibid s 60(2).
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See, eg, GDE v Victims of Crime Assistance Tribunal [2009] VCAT 914 (27 May 2009).
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Ibid [10].
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Davis v Victims of Crime Assistance Tribunal [2008] VCAT 2535 (10 December 2008) [24].
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Ibid.
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Ibid [16].
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Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 60.
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Victims of Crime Assistance Act 1996 (Vic) s 62.
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Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 18.
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Victims Support Agency (Vic), Counselling for Victims of Crime (2011) 33.
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See, eg, Victims Rights and Support Act 2013 (NSW) s 40(6), Victims of Crime (Financial Assistance) Act 2016 (ACT) s 49, Victims of Crime Assistance Act 2009 (Qld) s 101(3), Victims of Crime Assistance Act 2006 (NT) s 46(1).
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