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

5. Financial assistance available for victims of crime

Introduction

5.1 This chapter begins with an introduction to compensation and state-funded financial assistance, as recognised in international law and internationally, to provide a broader context for consideration of Victoria’s system.

5.2 This chapter also:

• provides an overview of the financial assistance options available in Victoria for

victims of crime

• introduces the Victims of Crime Assistance Act 1996 (Vic) (the Act)

• explains why for some victims, financial assistance through the Victims of Crime Assistance Tribunal (VOCAT) might be the only option available.

International law and other Australian jurisdictions

5.3 State-funded financial assistance and compensation for victims^[1] has been described as a core component of a just legal response to family violence.^[2]

5.4 Consequently, international instruments have recognised the rights of victims of crime to receive assistance and compensation. In 1985, the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.^[3] This Declaration provides that ‘victims should receive the necessary material, medical, psychological, and social assistance through governmental, voluntary, community-based and indigenous means’.^[4] Furthermore, it states that ‘when compensation is not fully available from the offender or other sources, states should endeavour to provide financial compensation to victims of crime and their families’.^[5] While the Declaration itself is non-binding, it provides a valuable articulation of the international community’s minimum standards in relation to the treatment of victims of crime.

5.5 In the specific context of family violence, the United Nations Committee on the Elimination of all Forms of Discrimination against Women has issued a General Recommendation for party states to develop effective compensatory provisions to protect women against all violence, including family violence.^[6]

5.6 Victims’ compensation is an important feature in some regional human rights systems. In the Council of Europe there is the European Convention on the Compensation of Victims of Violent Crimes,^[7] which obliges party states to compensate victims of intentional and violent offences resulting in bodily injury or death.^[8]

5.7 State-funded financial assistance and compensation schemes are a common feature in common law countries, although they vary in scope and design. For example, New Zealand has a comprehensive, no-fault personal injury compensation scheme that covers all New Zealand residents and visitors to New Zealand. This one scheme covers injuries that occur in all aspects of life—including at work, on the roads or as a victim of crime.^[9]

5.8 In the United Kingdom, the Criminal Injuries Compensation Authority awards compensation to victims of violent crime according to The Criminal Injuries Compensation Scheme 2012. A ‘crime of violence’ must have occurred for a payment to be made.^[10] Types of payment include payment for injury, loss of earnings, special expenses, bereavement and funeral expenses. ^[11]

5.9 In Canada, all provinces/territories except Newfoundland and Nunavut have financial compensation for victims of violent crime. However, as these programs are administered by individual provinces and territories, their rules and standards differ.^[12]

5.10 All Australian states and territories have state-funded financial assistance or compensation schemes for victims of crime.^[13] A comparative summary table can be found at Appendix B.

5.11 As shown in Appendix B, legislative provisions in some states and territories closely mirror provisions in Victoria. Most schemes aim to promote victim recovery and some expressly provide for acknowledgment and recognition by the state and the community of the harm caused by an act of violence. Most require a person to have suffered injury as a result of an act of violence, with some jurisdictions specifically recognising family violence.

5.12 However, Victoria and South Australia are the only two Australian jurisdictions with judicial decision makers. The majority of Australian jurisdictions have an administrative system, with decision makers being government-appointed commissioners or assessors. Furthermore, some schemes explicitly define or provide for family or domestic violence,^[14] while others, like Victoria, do not.

5.13 The next part of this chapter outlines the broader compensation and restitution options available to victims of crime in Victoria and sets out the relevant legislative framework in Victoria under the Act.

Options available in Victoria

5.14 In Victoria, victims of crime can:

• seek compensation or restitution under the Sentencing Act 1991 (Vic)

• pursue a civil action against an offender for an award of damages

• apply for state-funded financial assistance under the Act.^[15]

5.15 Consideration of broader compensation or restitution schemes available to victims is beyond the Victorian Law Reform Commission’s (the Commission) terms of reference. However, the options for victims in Victoria are summarised below to provide context for the operation of VOCAT, and to understand why VOCAT might be the only option for financial assistance or redress for some victims of family violence.

Compensation and restitution orders under the Sentencing Act

5.16 Restitution and compensation orders can be made under Part 4 of the Sentencing Act.^[16] Orders are made as part of the sentencing process and can be made for loss or injury caused as a direct result of the offence where an offender has pleaded guilty or been found guilty.^[17]

5.17 Restitution orders relate specifically to restoration of stolen goods connected to theft. A compensation order can be made against the offender for the value of any loss or damage as a result of an offence. Compensation orders can also be made for any injury directly caused, as well as for pain and suffering and some expenses incurred (or likely to be incurred).^[18]

5.18 As family violence offences are still significantly under-reported,^[19] access to restitution and compensation under the Sentencing Act may not be relevant for many family violence victims. In addition, such orders rely on the offender’s ability to pay and the successful enforcement of such orders. Given the often complex and interconnected financial relationship between family violence victims and perpetrators, such orders may further disadvantage a victim of family violence financially. Victims may also be too fearful to pursue these orders, given their relationship with the perpetrator.

Civil action for award of damages

5.19 Victims of crime can sue the offender for damages in a civil action. Civil action can be a significant financial and procedural burden for victims of crime, and the Sentencing Act’s provisions were intended to be a faster and cheaper alternative to pursuing civil proceedings.^[20]

5.20 As with compensation and restitution orders under the Sentencing Act, civil action may be impractical for victims of family violence. Unlike other victims of crime, victims of family violence have, or have had, a relationship with their offender and may have financial ties to the perpetrator of violence. Pursuing a civil action requires hiring a lawyer, potentially at high cost, and is likely to be impractical and undesirable for many victims of family violence.

State-funded financial assistance under the Victims of Crime Assistance Act

5.21 The Victims of Crime Assistance Act gives victims of violent crime an avenue for state-funded financial assistance to aid their recovery in circumstances where they cannot obtain financial assistance from other sources.^[21]

5.22 Awards of financial assistance are for expenses incurred, or likely to be incurred.^[22] In some circumstances, lump sum payments can be awarded as a symbolic expression of the community’s sympathy and recognition of the effects of crime.^[23]

5.23 For the reasons outlined above, state-funded financial assistance under the Act is often the only option available to victims of family violence.^[24] The Act is described in the next section.

The Victims of Crime Assistance Act 1996

Policy intent

5.24 When the Act was introduced, the Second Reading Speech articulated a broad intent to develop a model more responsive to the needs of victims in order to ‘… maximise the potential for a victim’s recovery from the psychological and physical effects of a violent offence’.^[25]

5.25 The then-Attorney-General, the Hon. Jan Wade MP, described the Act as establishing an integrated model of assistance for victims of crime.^[26]

5.26 She stated the Act would address the needs of victims of violent crimes and achieve an appropriate balance between the interests of victims, the state and the rights of offenders. Furthermore, the Act would:

• address the physical and psychological needs of a victim of crime by ensuring that appropriate services were available to help the victim make a speedy recovery

• wherever practicable, ensure that convicted offenders made good the harm caused by their crimes by paying compensation for pain and suffering to the victim

• ensure that procedures within the criminal justice system provided a quick and economical means for the redress of harm suffered as a result of the offender’s criminal conduct

• ensure that services provided by the state to victims of crime were affordable.^[27]

5.27 However, the Act removed the provision of state-funded compensation for ‘pain and suffering’ for victims, which had been available under Victoria’s preceding criminal injuries compensation laws. To address this omission, the Victims of Crime Assistance (Amendment) Act 2000 (Vic) introduced awards of special financial assistance for primary victims ‘who suffer significant adverse effects as a direct result of an act of violence’,^[28] although this amending legislation did not reinstate compensation for pain and suffering. These provisions are discussed in more detail below and in Part Two of this paper.

Overview of the Act

5.28 Part One of the Act sets out the Act’s purpose and objectives and defines key terminology.

5.29 Part Two of the Act sets out eligibility for assistance.

5.30 Part Three of the Act establishes VOCAT, details the form and timing for applications, sets out the procedures and powers of the Tribunal and outlines the procedures for the making of awards.

5.31 Part Four of the Act sets out procedures for review, variation and refund of awards and Part Five contains miscellaneous provisions.

Purpose and objectives

5.32 The purpose of the Act is to ‘provide assistance to victims of crime’.^[29]

5.33 The objectives of the Act are:

• to assist victims of crime to recover by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, as a direct result of the crime; and^[30]

• to pay certain victims of crime 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; and^[31]

• to allow victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.^[32]

5.34 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.^[33]

• The scheme provided by the Act is intended to complement other services provided by government to victims of crime.^[34]

Eligibility

5.35 Primary, secondary or related victims of an act of violence are eligible to apply for financial assistance under the Act.^[35] Victims must be the victim of an ‘act of violence’ which has directly resulted in ‘injury’ or death.^[36]

5.36 An ‘injury’ is actual physical harm, mental illness or disorder (or exacerbation of these) and pregnancy. An injury does not extend to loss or damage to property.^[37]

5.37 Eligibility, particularly as it relates to victims of family violence, is discussed in Chapter 6.

Establishment of VOCAT

5.38 The Act establishes VOCAT, described in Chapter 2, as the body to hear and determine applications for financial assistance made by victims of crime.^[38]

5.39 The Act prescribes the functions, powers and procedures of VOCAT and requires that in all matters before it, VOCAT must act:

• fairly

• according to the substantial merits of the case

• with as much expedition (promptness) as the requirements of the Act and a proper determination of the matter permit.^[39]

5.40 VOCAT describes its role as one of hearing and determining applications for financial assistance made by victims of ‘violent crime’ and as providing a ‘sympathetic and compassionate forum for applicants to relate their experience as victims of crime’.^[40]

5.41 VOCAT has acknowledged it has an important role to play in providing practical and flexible assistance to victims of family violence, including in providing a therapeutic forum for victims to tell their story and have their experiences acknowledged.^[41]

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. 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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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. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 95th plen mtg, UN Doc A/RES/40/34 (29 November 1985).

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4. Ibid [14].

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5. Ibid [12].

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

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7. Council of Europe, European Convention on the Compensation of Victims of Violent Crimes, opened for signature 24 November 1983, ETS 116 (entered into force 2 January 1988).

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8. Ibid art 2.

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9. Accident Compensation Corporation, Am I Covered? (2016) < www.acc.co.nz/making-a-claim/am-i-covered/index.htm>.

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10. Ministry of Justice (UK), The Criminal Injuries Compensation Scheme 2012 (2012) 36.

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11. Ibid 13.

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12. Canadian Resource Centre for Victims of Crime, Financial Assistance (2017) < https://crcvc.ca/for-victims/financial-assistance/>.

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13. Victims of Crime Assistance Act 1996 (Vic), Victims Rights and Support Act 2013 (NSW), Victims of Crime (Financial Assistance) Act 2016 (ACT), Victims of Crime Assistance Act 2009 (Qld), Victims of Crime Assistance Act 2006 (NT) Victims of Crime Act 2001 (SA), Victims of Crime Assistance Act 1976 (TAS), Criminal Injuries Compensation Act 2003 (WA).

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14. Victims’ Rights and Support Act 2013 (NSW) ss 40(5) and 44(3); 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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15. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 131.

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16. Sentencing Act 1991 (Vic) Part 4; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

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17. Sentencing Act 1991 (Vic) Part 4; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

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18. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 132.

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19. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume I (2016) 47.

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20. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 133–4.

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

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22. Ibid s 1(2)(a).

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

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24. Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality After Family Violence (Women’s Legal Service Victoria, 2015) 56.

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25. Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1023 (Jan Wade, Attorney-General).

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26. Ibid 1024.

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27. Ibid.

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28. See Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1911–6 (Rob Hulls, Attorney-General).

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

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30. Ibid s 1(2)(a).

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

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

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33. Ibid s 1(3).

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34. Ibid s 1(4).

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35. Ibid s 25(1).

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36. Ibid s 3(1).

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37. Ibid.

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38. Ibid ss 19.

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39. Ibid s 32.

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40. Victims of Crime Assistance Tribunal, Our Role (2016) < www.vocat.vic.gov.au/about-tribunal/our-role>

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41. Victims of Crime Assistance Tribunal, Annual Report 2015 –16 (2016) 17.

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