Improving the Justice System Response to Sexual Offences: Report (html)

11. Improving civil litigation for victim survivors of sexual violence

Overview

• Civil litigation is a justice option that is available in addition to or as an alternative to criminal justice.

• For some people who have experienced sexual violence, civil litigation meets important justice needs.

• Substantial compensation can be paid for pain and suffering, and loss of enjoyment of life. It can cover medical expenses and loss of income or capacity to earn a living.

• Civil litigation can provide acknowledgment and a sense of control.

• If a person who has experienced sexual violence successfully sues an institution, like a school or church, or settles the case, the institution will usually pay compensation. Accessing legal representation for institutional abuse claims is not generally a problem.

• Claims against individuals are different. Even if a person who has experienced sexual violence sues successfully or settles the case, getting payment can be difficult. Because of this, it can be hard to get legal representation to sue an individual for sexual violence.

• It can also be difficult to get payment of compensation orders, which are civil orders made by criminal courts to pay a victim compensation.

• To improve access to justice for people who have experienced sexual violence, the Victorian Government should:

– fund civil cases against individual (non-institutional) defendants that raise important legal or systemic issues, or where the person who experienced sexual violence faces many barriers to justice and has a strong case

– enforce, on request, civil orders and settlements in sexual violence cases involving individual (non-institutional) defendants.

Civil litigation is an important justice option

11.1 A person who has experienced sexual violence can sue the person who harmed them or a related institution, such as a school or church (‘the defendant’). The person bringing the case (‘the plaintiff’) must prove that the defendant committed a wrong (‘tort’). This kind of proceeding is a form of ‘civil litigation’.

11.2 The type of tort depends on who is being sued. An individual can be sued for ‘battery’. This is intentional contact with another person’s body that is harmful or offensive. Sexual assault, which includes child sexual abuse, is a form of battery.^[1]

11.3 If the defendant is an institution, the tort is ‘negligence’. This involves an institution breaching its duty to take reasonable precautions to protect the plaintiff from harm caused by people associated with it, such as employees or representatives.^[2] An institution may also have legal responsibility (‘vicarious liability’) for the actions of its employees.^[3] Since reforms were introduced in response to Victoria’s Betrayal of Trust report and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, it has been easier to sue institutions for sexual offending committed by people associated with them.^[4]

11.4 Civil litigation is a justice option that can be used along with, or instead of, criminal justice.^[5] It provides an alternative to criminal justice:

• for people who do not want to report sexual violence to the police

• where the police or the Director of Public Prosecutions decide not to prosecute

• where a criminal trial occurs but the accused is found not guilty.

11.5 We know that these three scenarios are common. Most women who have been sexually assaulted by a man do not report the assault to the police.^[6] Among reported cases, only about a third progress to the next stage of the criminal justice system.^[7] The difficulty of getting criminal justice makes having other justice options like civil litigation more important.

11.6 People who have experienced sexual violence have a range of justice needs (see Chapter 2). For example, not everyone wants the person responsible for the violence to go to prison, but many want them to acknowledge that what they did was wrong. Some may seek compensation for treatment or other expenses, or for the negative impact that the violence has had on their lives. Justice options like civil litigation can work better than criminal justice to meet some of these needs.

11.7 For civil litigation to be a real justice option for people who have experienced sexual violence, it needs to be accessible and effective. Our recommendations in this chapter are designed to make it easier to access civil litigation and get payment when suing an individual (non-institutional) defendant.

Civil litigation has benefits

11.8 When compared to the criminal justice system, civil litigation has certain benefits. In a criminal case, a conviction is possible only if the court finds it is ‘beyond reasonable doubt’ that the accused committed the offence. Proving that a sexual offence occurred ‘beyond reasonable doubt’ is often difficult, as we discuss in Chapter 19.

11.9 In a civil case, the case is proved if the court finds it is more likely than not that the defendant sexually assaulted the plaintiff (‘on the balance of probabilities’).^[8] The lower standard of proof means that a person who has experienced sexual violence has ‘a greater chance of vindication’.^[9]

11.10 Civil litigation also provides different outcomes from the criminal justice system. The main outcome of successful litigation is a court order for the defendant to pay the plaintiff money (‘damages’) to compensate them for their injuries. Damages cover medical and other expenses, loss of earnings, pain and suffering, and loss of enjoyment of life.^[10]

11.11 Damages awards in civil cases are higher than the amounts criminal courts sometimes award following a guilty plea or conviction (‘compensation orders’, which we discuss below). They are also higher than financial assistance awards made by the Victims of Crime Assistance Tribunal (VOCAT) (see Chapter 10).^[11]

11.12 If the parties agree to settle a civil case, the settlement agreement might include an apology from the defendant as well as damages. If the defendant is an institution, it may agree to change its policies and practices to prevent future sexual violence. A settlement agreement can be a positive outcome for someone who has experienced sexual violence because it provides compensation without the need to go through a civil trial.

11.13 Aside from damages, civil litigation can provide a person who has experienced sexual violence with:

• formal acknowledgment of the violence and its impacts

• a sense of control because they are a party to the proceedings

• a sense of closure

• a sense that they helped to deter future offending and held the person responsible to account.^[12]

11.14 The benefits of civil litigation may extend beyond the person who experienced sexual violence and have wider, social value. For example, a large ‘general’ damages award (providing compensation for things like pain and suffering) is a public signal that sexual violence has serious and lasting effects.

11.15 Until quite recently, general damages for sexual harassment and assault were much lower than for other personal injuries.^[13] This suggests there remains a need to educate judges (see Chapter 18), and the public (see Chapter 3) about the serious impacts of sexual violence.

Civil litigation has drawbacks

11.16 While civil litigation has benefits, it also has serious drawbacks. The specialist legal service, knowmore, describes civil litigation as ‘adversarial, costly, lengthy and … extremely re-traumatising’ for people who have been sexually abused.^[14] The Centre for Innovative Justice observes that it is ‘an adversarial, protracted, expensive and often damaging process’ for people who have experienced sexual violence.^[15]

11.17 In this inquiry, we received limited feedback about these concerns and how to respond to them. We have therefore focused on two problems where there is scope to make a difference:

• Without substantial financial means, it is difficult to get legal representation to sue an individual defendant for sexual assault.

• It is difficult to enforce settlement agreements and damages awards.

11.18 Suing an individual defendant is expensive and risky.^[16] Plaintiff lawyers will act on a ‘no win, no charge’ basis in cases with an institutional defendant and a strong chance of success.^[17] In other cases, they will act only if a plaintiff can pay their costs, whatever the outcome.^[18] If the plaintiff loses the case, they will have to pay their own lawyers and often the defendant’s legal costs.^[19]

11.19 If a plaintiff brings a case and is successful, or obtains a settlement agreement, enforcing the outcome can be expensive and complex. There are different enforcement options to choose between, and all involve bringing new legal proceedings. Another problem is that an individual defendant may not have the money to pay damages,^[20] or may transfer their assets to others, such as family members, trusts and companies, to avoid having to pay.^[21]

11.20 These issues would not prevent people who have experienced sexual violence from suing the person responsible if assistance was provided by the state. However, ‘No publicly funded body acts on behalf of the victim’ and ‘no equivalent of legal aid is available for civil claimants’.^[22]

Civil litigation should be accessible

Public funding should be available for legal representation in some cases

11.21 People cannot access justice if they cannot afford legal advice or representation in civil cases.^[23] Victoria Legal Aid provides limited funding for applicants in some civil jurisdictions, like family violence and child protection cases.^[24] It does not fund civil litigation for sexual assault.

11.22 If supported by public funding, civil litigation would be another way for people who have experienced sexual violence to get justice, and a way to hold people accountable for the violence. It would bring benefits such as financial compensation, control and acknowledgment within reach of more victim survivors.

11.23 The Centre for Excellence in Child and Family Welfare describes the ability to sue for sexual violence as a ‘civil right’:

There is no way of knowing how many people may have wished to pursue civil litigation but did not have the stamina to pursue their claim to resolution, or were advised by lawyers that their chances of winning a payout were too limited to pursue a ‘no win no pay’ case.

The civil rights of such people remain a concern … litigation is a civil right.^[25]

11.24 The importance of providing access to civil litigation as a justice option was emphasised by several people we spoke to or heard from during our inquiry.

11.25 One person who had experienced sexual violence told us she felt powerless when the police decided not to charge the person who assaulted her. She said she was left without options:

11.26 A mother whose daughter was sexually assaulted told us about her experience seeking legal representation for civil proceedings after police refused to file charges. She explained the difficulties she faced and why she wanted to sue.

11.27 Another person, who was sexually assaulted at work, was able to get legal representation because she could sue the company that employed her. She told us how important this was for her.

11.28 The scale of sexual violence and the failure of our justice system to provide meaningful options for people who have experienced it (see Chapters 1–3) is so serious that it requires a bold response. The Victorian Government should provide funding to improve access to civil litigation for people who have experienced sexual violence and who wish to sue an individual defendant or defendants.

11.29 Funding should be directed to cases:

• that raise important legal or systemic issues, or

• where the person harmed faces multiple barriers to justice and their case has reasonable prospects of success.

11.30 Focusing public support for civil litigation on these cases will ensure the state’s funding commitment is sustainable. It will mean that support is used for cases with the potential to improve the law for everyone, and where it is needed most and can bring the most benefit.

11.31 For some people, sexual violence reflects existing injustice. In Chapter 2, we discuss how Aboriginal people, people with disabilities, and LGBTIQA+ communities are all more likely than other people to experience sexual violence. In Chapters 2 and 3, we note that sexual violence is gendered. Children, older people and people who live in institutional contexts also experience high rates of sexual violence.^[30] We also heard in our inquiry about the greater barriers that people in these groups face when trying to get justice.^[31] Djirra explained that for Aboriginal women, the difficulty of bringing civil litigation is ‘a significant gap’ and is part of ‘ongoing inequities’.^[32]

11.32 In its recent report, the Royal Commission into Victoria’s Mental Health System argued that people who confront discrimination because of their mental health need better social, legal and institutional supports than they have now. It said they should not be forced to stand up to discrimination on their own. The Royal Commission recommended that the Victorian Government should fund some legal services to help people with mental illness sue for discrimination.^[33]

11.33 We think a similar approach is justified for sexual violence. People who have experienced sexual violence, especially those who face multiple barriers to justice, should not have to stand up to it on their own.

11.34 To implement our recommendation, legal representation could be provided through a legal aid scheme or another suitable body, which could be responsible for the day-to-day administration of the scheme. The new Commission for Sexual Safety (see Chapter 22) should provide guidelines or criteria for making civil litigation funding decisions. It could provide advice, where appropriate, on the conduct of particular cases.

11.35 To ensure procedural fairness, where plaintiffs receive publicly funded legal representation to sue for sexual assault, defendants should be eligible for legal aid, subject to the usual means (income) test.

Civil justice orders and settlements should be enforced against individual defendants

11.36 Helping people who have received a civil award or settlement to enforce that outcome is another way of responding to the urgent need for more sexual violence justice options. Without this help, civil litigation will not be a real justice option for many people. With it, there is public recognition that the state takes the violence seriously, and the practical assistance that comes with enforcement. It is a way of ensuring that people responsible for sexual violence are held financially accountable if they have the means to pay.

11.37 The Victorian Government, or an agency authorised by it, should bring enforcement proceedings in sexual violence cases. This should occur where the person who experienced sexual violence requests it,^[34] and an individual defendant or defendants does not pay after:

• the court makes an order in a civil case, or

• the case is settled.

11.38 The Victorian Government should also enforce compensation orders made under the Sentencing Act 1991 (Vic), at the request of a person who has experienced sexual violence.

11.39 When a person is convicted of a criminal offence, anyone who has suffered an injury as a result of the crime can apply for a compensation order.^[35] The sentencing court can order the person responsible to pay financial compensation. This is a civil remedy attached to the end of a criminal trial to benefit people injured by the crime.^[36]

11.40 Compensation orders can avoid the need for victims of crime to sue the person responsible for damages. The orders are designed to provide compensation more quickly and efficiently than civil litigation.^[37] They are therefore another form of justice. However, failure to pay seems to be common,^[38] and victims ‘often struggle to enforce’ compensation orders.^[39]

11.41 In 2018, the Sentencing Advisory Council made a similar recommendation that the Victorian Government should consider empowering an appropriate agency to enforce compensation orders on behalf of victims of crime.^[40] The Sentencing Advisory Council cautioned that offenders who cannot pay should not be imprisoned for their failure to pay.^[41] Imprisonment would be inappropriate because compensation orders are civil outcomes that aim to provide compensation for injury, not to punish the person responsible.^[42]

11.42 We agree with the Sentencing Advisory Council’s comments in relation to compensation orders. These comments apply equally to the enforcement of civil litigation outcomes. The same limits should apply.

11.43 The new Commission for Sexual Safety should provide guidance on bringing enforcement proceedings and work with the Victorian Government, or the enforcement agency or authority authorised by it, to provide oversight (see Chapter 22).

1. Judicial College of Victoria, ‘2.2.3 Intentional Torts—Sexual Assault’, Civil Juries Charge Book (Online Manual, 14 April 2014) <https://www.judicialcollege.vic.edu.au/eManuals/CJCB/45338.htm>; Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 460 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

   ↑

2. See Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 460–1 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>; Department of Justice and Regulation (Vic), Betrayal of Trust Fact Sheet: The New Organisational Duty of Care to Prevent Child Abuse (Fact Sheet, May 2017) <https://www.justice.vic.gov.au/safer-communities/protecting-children-and-families/betrayal-of-trust-fact-sheet-the-new>.

   ↑

3. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 53–54 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

   ↑

4. Victorian Law Reform Commission, Sexual Offences: Civil Law and Other Non-Criminal Responses (Issues Paper H, October 2020) [7], nn 4–8; Royal Commission into Institutional Responses to Child Sexual Abuse (Redress and Civil Litigation Report, September 2015) 5 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>; Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (Parliamentary Paper No 275, 2013) <https://www.parliament.vic.gov.au/58th-parliament/fcdc/inquiries/article/1788>.

   ↑

5. Other options include compensation orders under section 85B of the Sentencing Act 1991 (Vic), which we discuss below, awards made by the Victims of Crime Assistance Tribunal (VOCAT), or awards made under a redress scheme. Redress schemes are set up in an institution or sector to compensate people who have experienced sexual violence. Some are run by a single institution. Others are run by government, with institutions covering some of the costs. If a person receives an award in one context (such as a compensation order), a subsequent award made in a different context (such as in civil litigation) will be reduced by the amount of the earlier award if it relates to the same subject matter (such as medical expenses). Sometimes a condition of accepting an award under a redress scheme is that the person who has experienced sexual violence agrees not to commence subsequent civil litigation.

   ↑

6. The 2016 ‘Personal Safety Survey’ found that ‘87 per cent of [adult] women who experienced their most recent aggravated sexual assault by a male in the last 10 years did not contact the police’: Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 5 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

   ↑

7. Inga Ting, Nathanael Scott and Alex Palmer, ‘Rough Justice: How Police Are Failing Survivors of Sexual Assault’, ABC News (online, 3 February 2020) <https://www.abc.net.au/news/2020-01-28/how-police-are-failing-survivors-of-sexual-assault/11871364>.

   ↑

8. Evidence Act 2008 (Vic) s 140. The court is, however, expected to give weight to the presumption of innocence in civil litigation where it is alleged that a crime was committed, and ‘exactness of proof’ is expected: Briginshaw v Briginshaw (High Court of Australia, Latham CJ, Rich, Starke, Dixon and McTiernan JJ, 30 June 1938) 34, (1938) 60 CLR 336, per Dixon J.

   ↑

9. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 92 <https://cij.org.au/research-projects/sexual-offences/>.

   ↑

10. ‘Damages are intended to compensate the successful claimant for loss or injury by placing the claimant, as nearly as possible, in the position that he or she would have been in had the breach of duty not occurred.’: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Report, September 2015) 219 <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

    ↑

11. Damages awards for sexual assault and child sexual abuse vary, but awards of over $150,000 are not unusual and sometimes are much higher: ibid 230. The maximum award for victims at VOCAT is $70,000, and the average amount of financial assistance paid to victims (regardless of the crime) is around $7,900: Victims of Crime Assistance Tribunal, Annual Report 2019–2020 (Report, 2020) 2 <https://www.vocat.vic.gov.au/sites/default/files/publication/2020-12/13166%20VOCAT%20Annual%20Report%202019-2020_WEB%20V2.pdf>.

    ↑

12. Bruce Feldthusen, Olina Hankivsky and Lorraine Greaves, ‘Therapeutic Consequences of Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse’ (2000) 12 Canadian Journal of Women & Law 66, 69; knowmore, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (17 March 2014) 2 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Issues%20Paper%205%20-%20Submission%20-%2017%20Knowmore.pdf>; Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 92 <https://cij.org.au/research-projects/sexual-offences/>.

    ↑

13. Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, 223 FCR 334 [109] (Kenny J). The 2018 national ‘Respect @ Work’ inquiry was told that damages awarded by courts in sexual harassment matters are still comparatively low. It called for research to assess if ‘current damages reflect contemporary understandings of the nature, drivers, harms and impacts of sexual harassment’: Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 29 <https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.

    ↑

14. knowmore legal service, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (17 March 2014) 3 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Issues%20Paper%205%20-%20Submission%20-%2017%20Knowmore.pdf>.

    ↑

15. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 92 <https://cij.org.au/research-projects/sexual-offences/>.

    ↑

16. Centre for Excellence in Child and Family Welfare Inc, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (2015) 5 <https://www.cfecfw.asn.au/wp-content/uploads/2015/05/Royal%20Commission%20-%20Issues%20Paper%205%20-%20Civil%20Litigation.pdf>; knowmore legal service, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (17 March 2014) 3, 22–3 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Issues%20Paper%205%20-%20Submission%20-%2017%20Knowmore.pdf>; Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 92 <https://cij.org.au/research-projects/sexual-offences/>; Submissions 9 (Djirra), 14 (Gatehouse Centre, Royal Children’s Hospital).

    ↑

17. See, eg, Centre for Excellence in Child and Family Welfare Inc, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (2015) 4 <https://www.cfecfw.asn.au/wp-content/uploads/2015/05/Royal%20Commission%20-%20Issues%20Paper%205%20-%20Civil%20Litigation.pdf>.

    ↑

18. While it is quite common for individuals to be named as co-defendants in sexual harm litigation commenced against institutions, it is rare for civil claims to proceed against individuals alone. Unlike negligence claims against institutions, there can be no insurance for intentional torts like sexual assault, or for criminal acts.

    ↑

19. South Eastern Centre against Sexual Assault & Family Violence, Sexual Assault, the Law, Your Rights (Guide, December 2016) 80 <https://www.secasa.com.au/pages/sexual-assault-the-law-your-rights/>.

    ↑

20. knowmore legal service, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (17 March 2014) 3 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Issues%20Paper%205%20-%20Submission%20-%2017%20Knowmore.pdf>; Submission 9 (Djirra).

    ↑

21. Submission 14 (Gatehouse Centre, Royal Children’s Hospital). The plaintiff can seek an order preventing transfer (an injunction), but they must demonstrate that the transfer is about to happen, and this can be complicated. In relation to the cost and complexity of enforcing judgment debts generally: see Sentencing Advisory Council (Vic) et al, Restitution and Compensation Orders (Issues and Options Paper, 2018) xvii–xviii.

    ↑

22. Centre for Innovative Justice, RMIT University, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (Report, May 2014) 92 <https://cij.org.au/research-projects/sexual-offences/>.

    ↑

23. Victorian Law Reform Commission, Civil Justice Review (Report No 14, March 2008) 607.

    ↑

24. Submission 27 (Victoria Legal Aid).

    ↑

25. Centre for Excellence in Child and Family Welfare Inc, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 5—Civil Litigation (2015) 4 <https://www.cfecfw.asn.au/wp-content/uploads/2015/05/Royal%20Commission%20-%20Issues%20Paper%205%20-%20Civil%20Litigation.pdf>.

    ↑

26. Submission 15 (Danielle).

    ↑

27. Consultation 99 (Alison, the mother of a rape survivor).

    ↑

28. Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

    ↑

29. Submission 62 (Shine Lawyers (on behalf of Ms Kim Elzaibak)). See also Lori Haskell and Melanie Randall, The Impact of Trauma on Adult Sexual Assault Victims (Report, 2019) 5 <http://www.deslibris.ca/ID/10103348>: ‘Indigenous women … experience disproportionately high rates of sexual victimization and … have also experienced the most tragic gaps in police and criminal justice system responses. Other groups of racialized women, disabled women, young women, women who have used alcohol or drugs, are impoverished or homeless, or have other circumstances of marginality, are particularly vulnerable to sexual assault as well as decreased access to justice.’ The quote here is referring to Indigenous women in Canada, but as we discuss in Chapter 2, it also applies to Aboriginal women in Australia.

    ↑

30. Submissions 1 (Dr Catherine Barrett), 58 (Law and Advocacy Centre for Women Ltd). See, eg, Australian Institute of Health and Welfare (Cth), Sexual Assault in Australia (In Focus Report, 28 August 2020) 1 <https://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary>.

    ↑

31. See chs 2, 8.

    ↑

32. Submission 9 (Djirra).

    ↑

33. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) Recommendation 41(4)(c) and see generally ch 25.10, 562–7 <https://finalreport.rcvmhs.vic.gov.au/>.

    ↑

34. Enforcement should not occur automatically or by default, given the reprisal risks this could create if the person harmed is in a relationship, or has close connections to, the person responsible for the violence: Sentencing Advisory Council (Vic), Restitution and Compensation Orders (Report, 25 October 2018) xvii <https://www.sentencingcouncil.vic.gov.au/publications/restitution-and-compensation-orders-report>; Sentencing Advisory Council (Vic) et al, Restitution and Compensation Orders (Issues and Options Paper, 2018) xxii.

    ↑

35. Sentencing Act 1991 (Vic) s 85B(1).

    ↑

36. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Consultation Paper, July 2015) 130 [10.3].

    ↑

37. Sentencing Advisory Council (Vic), Restitution and Compensation Orders (Report, 25 October 2018) xiii <https://www.sentencingcouncil.vic.gov.au/publications/restitution-and-compensation-orders-report>; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [9.21] 232.

    ↑

38. Sentencing Advisory Council (Vic) et al, Restitution and Compensation Orders (Issues and Options Paper, 2018) xviii, 27–9.

    ↑

39. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [63].

    ↑

40. Sentencing Advisory Council (Vic), Restitution and Compensation Orders (Report, 25 October 2018) xvii, Recommendation 7 <https://www.sentencingcouncil.vic.gov.au/publications/restitution-and-compensation-orders-report>.

    ↑

41. Ibid xvii.

    ↑

42. The Sentencing Advisory Council suggested that, if state enforcement is introduced, the enforcement agency should only have powers to use civil mechanisms of enforcement, such as the powers of a judgment creditor to enforce a debt: Ibid.

    ↑