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

14. VOCAT—beyond financial assistance for victims of family violence

Introduction

14.1 Financial assistance and compensation go beyond monetary benefits. They can make a statement to the community about the unacceptability of family violence and confirm the responsibility of the state for preventing violence from occurring.^[1] They can also recognise and validate a victim’s experience by offering a symbolic expression by the state of the community’s sympathy and condolence for the significant adverse effects they have experienced or suffered.^[2]

14.2 This chapter considers aspects of the Victims of Crime Assistance Act 1996 (Vic) (the Act) and the Victims of Crime Assistance Tribunal (VOCAT) that go beyond providing financial assistance to victims of crime. The chapter considers the extent to which:

• the system acknowledges victims and recognises harm caused by family violence

• the Act recognises family violence

• the VOCAT process is trauma-informed

• the process is consistent and transparent

• the rights of perpetrators and victims are balanced, having regard to the purpose of the Act—to assist victims of crime to recover.

14.3 As with Chapter 13, consideration of these matters is not expressly required by the terms of reference. However, the Victorian Law Reform Commission (the Commission) considers that these factors influence the way victims of family violence engage with VOCAT.

14.4 Finally, this chapter poses a number of questions for consideration and explores what reforms might be needed for the system to better acknowledge and recognise family violence, embed trauma-informed processes, improve its consistency and transparency, and appropriately balance perpetrator and victim rights.

VOCAT as a therapeutic forum

Victim acknowledgment and recognising harm

14.5 During preliminary consultations, the Commission heard that one of the potential benefits of Victoria’s approach to state-funded financial assistance for victims of crime is the use of judicial officers. Victoria is one of the few Australian jurisdictions that uses judicial decision makers.^[3]

14.6 For some victims, the hearing of an application by a judicial officer provides an acknowledgment from the justice system that there has been a crime and that they have suffered harm as a consequence.^[4] VOCAT also considers that the structure enables ‘victims of crime [to] gain acknowledgment of their experiences by a judicial officer in the criminal justice system, but in the more flexible, informal and intimate manner afforded by an administrative tribunal’.^[5]

14.7 For some victims, the importance of being heard and validated outweighs any monetary award. The experience of VOCAT’s Koori List is that ‘most victims want to hear someone say, on behalf of the State of Victoria, that we are sorry that this happened to you’.^[6]

14.8 Some victims’ experience of VOCAT hearings is positive, describing Tribunal members as caring, patient and understanding.^[7] Where an offender had not been prosecuted, victims tended to feel acknowledged and validated by the VOCAT hearing.^[8] During preliminary consultations, the Commission was told about the powerful nature of such judicial acknowledgment, particularly in sexual offence matters where successful prosecution is rare.

14.9 However, research by the Victims Support Agency has found that this is not the experience of all victims of crime and that victims’ experience of VOCAT varies:

Comments about the VOCAT hearing were mixed. While many participants made positive comments about Tribunal Members and felt acknowledged and validated by the hearing, particularly where no offender was prosecuted, some participants felt distressed by having to recount details of the crime they experienced. One participant was distressed by the Tribunal member’s comments. One felt the court did not adequately cater to the needs of disabled people and another felt there was a lack of support during and after the hearing.^[9]

14.10 Some victims can be distressed by having to recount details of the crime during VOCAT hearings:^[10]

Having the matter heard by a tribunal member, who listens to a victim’s story and acknowledges their experience, can be a therapeutic experience for some applications. However, attending a hearing and giving evidence about the criminal act may further distress others.^[11]

14.11 During the Victorian Royal Commission into Family Violence (the Royal Commission), the witness statement of Rebecca Smith highlighted how experiences of the VOCAT process can vary.^[12]

14.12 Ms Smith had been through the VOCAT process as a victim of ‘stranger violence’—where she found the experience validating—as well as experiencing VOCAT for family violence matters. Although Ms Smith described the rape as horrible, she also described it as ‘one night of my life’. She compared this to the way family violence had affected her life for years. Ms Smith found the award of $1000 for the family violence compared to one of $10,000 for the rape to be an inadequate representation of the significant impacts family violence had had on her life.

A trauma-informed process?

14.13 During preliminary consultations, the Commission was advised that one of the reasons the VOCAT process can be re-traumatising for victims is because it is not a trauma-informed process.

14.14 Trauma-informed practice involves modifying aspects of service provision to ensure a basic understanding of how trauma affects the life of an individual seeking a service.^[13] A trauma-based approach accepts victims of crime as being harmed as a result of the crime.^[14] One of its benefits is that it avoids re-traumatisation, as the focus is on ensuring the person’s physical, psychological and emotional safety.^[15]

14.15 Significantly, approaches that are not trauma-informed often mirror the power and control experienced in abusive relationships.^[16]

14.16 The Law Institute of Victoria has considered the importance of trauma-informed legal practice, including for the judiciary and court staff.^[17] Victoria’s Family Violence Rolling Action Plan 2017–2020 recognises the need for the Magistrates’ Court to move towards a more trauma-informed approach to family violence by ‘embedding a specialist, trauma-informed response across our justice system through the expansion of the Specialist Family Violence Court model’.^[18]

14.17 However, during preliminary consultations the Commission was advised that the legal framework underpinning VOCAT necessitates legal processes that are not trauma-informed, such as perpetrator notification. These processes can be re-traumatising, especially for victims of family violence, including child victims.

14.18 Matters of concern raised during preliminary consultations included:

• questions about not reporting the crime or not providing assistance to police and prosecution

• questions about a victim’s behaviour or past conduct, including unrelated criminal activity

• inappropriate and irrelevant lines of questioning, including questions about what special financial assistance funds might be spent on, or why the victim had not left an abusive relationship earlier

• perpetrator notification provisions.

14.19 During preliminary consultations the Commission heard that some stakeholders ‘shield’ their clients from the non-therapeutic aspects of VOCAT, such as section 52 and section 54 queries which can re-traumatise victims.

Broader recognition of family violence

14.20 In Part Two, this paper discussed some problematic sections of the Act that do not expressly acknowledge family violence or allow adequate consideration of the dynamics and characteristics of family violence in making awards. However, more broadly, the Act is silent on the issue of family violence.

14.21 At the time of the introduction of the Act, in 1996, there was little community acknowledgment of family violence or its harms. Improved justice responses did not commence until the early 2000s. There are now four Australian jurisdictions that explicitly recognise family violence under their equivalent legislation.^[19]

14.22 The Act’s failure to recognise family violence—or to conceive of family violence itself as an ‘act of violence’—remains one of the fundamental challenges of ensuring the Act appropriately responds to harms caused by family violence. As noted earlier, the Act conceives of crime as an ‘isolated random act of a deviant stranger’^[20] rather than something that can occur over a long period of time and within an intimate setting. As Victoria Legal Aid submitted to the Royal Commission, the Act is better suited to ‘one-off’ acts of violence where the victim and perpetrator are not known to each other.^[21]

14.23 This omission is why many stakeholders during preliminary consultations referred to the Act as only conceptualising ‘stranger violence’, with some likening the Act to a ‘bar room brawl’ model of victim financial assistance. Other stakeholders felt that the Act’s barriers for family violence victims were so significant that it raised questions about the purpose of the Act and whether it could actually ever apply to family violence victims.

Consistency and transparency in practice and awards

14.24 During preliminary consultations, the Commission heard that the inconsistency of VOCAT decisions, and the variability in the acknowledgment and validation of victims, significantly shape family violence victims’ experiences. This variability also affects the extent to which the VOCAT process may be recommended by support agencies working with victims of family violence as a positive experience. There is a limit to how much a victim can be assured of a ‘validating’ VOCAT experience.

14.25 The Commission also heard that one of the barriers often encountered by those supporting victims of family violence through the VOCAT process was the extent to which the process could be explained or predicted. In particular, the Commission heard there was variability in:

• the length of the process

• what will be requested by VOCAT

• what questions the victim will be asked

• whether the perpetrator will be notified

• the quantum of awards.

14.26 These issues are not new. Variability in the processes and decision making of VOCAT has also been raised in previous reviews.^[22]

14.27 During preliminary consultations the Commission heard that this variability is compounded by a lack of transparency in the VOCAT process itself. It is difficult to know, for example, whether the award offered during the section 33 process is consistent with that offered in similar cases. Some stakeholders also told the Commission that the quantum of awards made ‘on the papers’ seemed to be lower than if a hearing was held, and that determinations made ‘on the papers’, as opposed to those made at hearing, lacked transparency.

14.28 As with the issues of variability in process and decision making, concerns about transparency in process are not new. In a submission to the then-Victorian Department of Justice’s 2010 review of victim compensation, the Federation of Community Legal Centres stated that there was a need for more transparency and equity in the VOCAT process.^[23]

The rights of perpetrators

14.29 During preliminary consultations, the Commission heard that some stakeholders felt that the Act operates to place the rights of the alleged offender before the rights of the victim. This contrasts with the stated purpose of the Act, which is ‘to provide assistance to victims of crime’.^[24]

14.30 This issue was raised particularly in the context of the provisions for notifying perpetrators. Some stakeholders felt that these provisions are counter-productive and contradict the purpose of the Act. They considered the provisions to be inconsistent with a victim-centred approach that should be the foundation of the VOCAT process. Furthermore, some stakeholders also noted that in practice, where perpetrators are notified, it is rare for them to then engage with the VOCAT process by attending hearings or providing submissions.

14.31 In this context, some stakeholders felt that the procedural fairness intent of such provisions is outweighed by their negative impacts on victims of crime, particularly victims of family violence, and that this works against the purpose and objectives of the Act.

14.32 However, other stakeholders considered that it was important in the interests of procedural fairness that perpetrators be notified if an application is made containing serious allegations against them, particularly where criminal charges have not been laid or a prosecution does not proceed.

Discussion and options for reform

Towards trauma-informed practice?

14.33 For some victims of crime, the potential for a judicial officer to hear their matter in a court-like environment can be a validating experience. Some victims might find therapeutic benefit in having their story heard and their experiences acknowledged.

14.34 However, the Commission heard during preliminary consultations that this experience is not universal. Some stakeholders consulted felt that this variability in experience was because the framework underpinning the Act and the operation of VOCAT is not trauma-informed.

14.35 Ian Freckelton has reflected more broadly on the intrinsic lack of understanding and training of decision-makers within financial assistance and compensation schemes, stating that ‘Decision makers who have never encountered DSM-IV or standard works on trauma and victim impact are put in the position of having to deal with this sensitive area’.^[25]

14.36 Some jurisdictions in Australia have an administrative scheme rather than a court or tribunal-based scheme. This removes the opportunity for acknowledgment of a victim by a judicial officer, but also reduces the potential for adverse outcomes through a more legalistic process.

14.37 In the Northern Territory, the Crime Victims Services Unit manages provision of financial assistance, which is allocated by legally qualified assessors. There is no requirement to attend a hearing. In the Australian Capital Territory, an assessor from Victim Support ACT will assess applications.^[26] As in the Northern Territory, there is no requirement to attend a hearing. In New South Wales, support coordinators from Victims Services develop a care package, which might include financial assistance and recognition payments.^[27]

14.38 One proposal is to consider how trauma-informed practice could be embedded within VOCAT and how this might improve experiences for victims of family violence. Such practice might include specialised training or specialist staff—or a combination of both. It might also involve broader structural or procedural changes, such as a specialist family violence list or specialist magistrates, as discussed in Chapter 11. These strategies could be underpinned by a trauma-informed approach.

14.39 Consideration could also be given to how VOCAT can be integrated with the broader service system, particularly given the models in other jurisdictions that combine compensation and victim support.

Recognising family violence

14.40 Family violence could also be recognised in the purpose and/or objectives of the Act itself. Such inclusion may improve family violence victims’ experiences of the VOCAT process, as Tribunal members would be required to have regard to the circumstances of family violence. The provision could be general, acknowledging the dynamics of family violence and re-envisaging the Act as applicable in circumstances involving family violence. However, any such recognition of family violence would need to be carefully considered alongside any potential expansion of eligibility criteria, as discussed in Chapter 6.

14.41 Such an amendment to the purpose and objectives of the Act would be a significant departure from the Act’s original intent. It was introduced at a time when family violence was not recognised in the law as violence unless it also involved a criminal offence such as serious physical assault, sexual assault or murder.

14.42 VOCAT has acknowledged that on previous occasions, when laws have been reformed to address new offences, the Act has not necessarily been updated.^[28] For example, in responses to new sexual offending laws, VOCAT observed that ‘despite the harms caused by such crimes, many of the new offences would not satisfy the eligibility requirements of the Act’.^[29]

14.43 During preliminary consultations, the Commission heard that the Act has not been substantially amended since the 1990s, resulting in it ‘lagging’ behind both societal and other legal changes, such as the increased recognition and detection of family violence and the expanded definition of family violence under the Family Violence Protection Act 2008 (Vic) and new sex offences.

14.44 The Magistrates’ Court of Victoria also recognises that the Family Violence Protection Act 2008 (Vic) challenges the way violent crime is conceptualised for the purposes of the Act. However, in its submission to the Royal Commission, the Court cautioned against widening the Act to apply to cases where family violence has occurred, but there is not necessarily an ‘act of violence’. The Court was concerned that such an expansion of the definition would result in an increase in the number and complexity of applications being made to VOCAT, resulting in unintended consequences, like more matters requiring hearings and perpetrator notification.^[30]

14.45 The Magistrates’ Court of Victoria instead favoured an approach that enabled decision makers to take into account family violence issues where relevant.

14.46 An approach of ‘broad recognition’, possibly incorporated as a specific objective of the Act, may be consistent with the approach posited by the Magistrates’ Court. Incorporating a general acknowledgment of family violence might better guide decision makers to consider family violence when applying provisions of the Act that have broad discretionary powers, such as sections 52, 53 and 54.

Consistency and transparency in approach

14.47 During preliminary consultation, the Commission heard concerns from some stakeholders about the level of discretion built into the Act. Many stakeholders spoke about inconsistencies in the practice, approach and the quantum of awards being made by VOCAT members, and considered that these inconsistencies were tied to the level of discretion granted by the Act. Some stakeholders felt that the broad discretion in the Act could also be used inappropriately, for example, pursuing ‘irrelevant’ lines of questioning about a victim’s past or current actions or behaviour.

14.48 Some stakeholders suggested more guidance in the Act might help to improve consistency in the Tribunal’s practice, even if this resulted in more prescriptive considerations, categories or award amounts. These stakeholders considered such changes would make it easier to guide victims through the VOCAT process and to manage expectations, even if there was less flexibility.

14.49 Consideration could therefore be given to the ways in which increased consistency and transparency could be embedded within the Act, particularly with respect to family violence victims who face additional barriers in eligibility and whose applications are frequently complex.

Perpetrator and victim rights

14.50 Given the issues raised by stakeholders concerning notification of perpetrators, further consideration of these provisions is required to ensure the Act appropriately balances the rights of victims of family violence and the rights of perpetrators. The Commission heard differences of opinion during the preliminary consultations about whether removing the requirement to inform perpetrators would be contrary to the requirements of procedural fairness or whether such amendments would make the Act more consistent with its purpose and objectives.

14.51 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on how perpetrator and victim rights should be appropriately balanced, having regard to the purpose of the Act—to assist victims of crime. This includes considering whether the central purpose of the law is to help victims recover. Specific questions for consideration are set out below.

1. 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, 192 and 208.

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

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3. See Appendix B.

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4. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 43.

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5. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 14.

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6. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 31.

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7. Victims Support Agency (Vic), Counselling for Victims of Crime (2011) 37.

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8. Ibid.

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9. Ibid 59.

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10. Ibid 38.

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11. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper 18.

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12. Victoria, Royal Commission into Family Violence, Witness Statement of Rebecca Smith (2016). The Royal Commission changed the name and other details of the witness to protect her identity.

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13. Jenna Bateman, Corinne Henderson and Dr Cathy Kezelman, Trauma-Informed Care and Practice: Towards a Cultural Shift in Policy Reform across Mental Health and Human Services in Australia, Position Paper and Recommendations (Mental Health Coordinating Council, 2013) 5.

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14. Ibid 8.

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15. Ibid 5.

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16. Ibid 9.

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17. Cathy Kezelman and Pam Stavropoulos, ‘Dealing with Trauma’ (2016) 90(10) Law Institute Journal 36.

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18. Department of Premier and Cabinet (Vic), Family Violence Rolling Action Plan 2017–2020 (2017) 7.

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19. Victims’ Rights and Support Act 2013 (NSW) ss 44(3) and 40; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 9 and pt 1.2, div 1.2.2 of sch 1; Victims of Crime Assistance Act 2006 (NT) s 31(3)(a) and Victims of Crime Assistance Regulations 2007 (NT) regs. 5 and 22, sch 3. See also Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) ss 29, 30 and 96, which, once in force, will amend the Victims of Crime Assistance Act 2009 (Qld).

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20. 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, 192–3.

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21. Victoria Legal Aid, Submission No 919 to Royal Commission into Family Violence Royal Commission into Family Violence (2015), 53.

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22. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 42.

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23. Federation of Community Legal Centres, Submission to Victorian Department of Justice, Reviewing Victims of Crime Compensation: Sentencing Orders and State-Funded Awards (February 2010) 7.

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24. Victims of Crime Assistance Act 1996 (Vic) s 1(1).

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25. Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds), Victimology (Australian Institute of Criminology, 1996) 251. The ‘DSM-IV’ refers to the Diagnostic and Statistical Manual of Mental Disorders which is the authoritative guide to the diagnosis of mental disorders.

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26. Victim Support ACT, Processing of Your Application (2016) <www.victimsupport.act.gov.au/financial-assistance-scheme/new-financial-assistance-scheme-1-july-2016/>.

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27. Victims Services, Department of Attorney General and Justice (NSW), The New Victims Support Scheme: A Detailed Guide (2013) 3.

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28. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 15.

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29. Ibid.

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30. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 58.

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