Victims of Crime Assistance Act 1996: Report (html)
1. Introduction
Referral to the Commission
First terms of reference
1.1 On 22 December 2016, pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission (the 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 (VOCAA).
1.2 The first terms of reference are set out at page viii of this report.
1.3 In June 2017 the Commission published a consultation paper on the first terms of reference.[1]
Supplementary terms of reference
1.4 On 7 July 2017, pursuant to section 5(2)(a) of the Victorian Law Reform Commission Act 2000 (Vic), the Attorney-General asked the Commission to review and make recommendations on supplementary terms of reference in relation to the operation and effectiveness of the VOCAA and the Victims of Crime Assistance Tribunal (VOCAT) for all victims of crime.
1.5 The Attorney-General requested the Commission to provide a single report on both the first and supplementary terms of reference by no later than 27 July 2018.
1.6 The supplementary terms of reference are set out at page ix of this report.
1.7 In August 2017 the Commission published a supplementary consultation paper on the further terms of reference.[2]
Scope of reference
1.8 The first terms of reference require the Commission to consider how the purpose and objectives of the VOCAA are realised for family violence victims, having regard to the issues raised by Recommendation 106 of the Victorian Royal Commission into Family Violence.
1.9 Accordingly, the first terms of reference are part of the Victorian Government response to the recommendations of the Royal Commission into Family Violence.
1.10 Fundamentally, the first terms of reference require the Commission to answer the following question: What changes should be made to the VOCAA to better assist victims of family violence rebuild their lives and recover?
1.11 The supplementary terms of reference expand the Commission’s inquiry to consider the operation and effectiveness of the VOCAA and VOCAT for all victims, including family violence victims, in achieving the purposes of the VOCAA.
1.12 The supplementary terms of reference also require the Commission to consider whether any processes, procedures or requirements under the VOCAA cause unnecessary delay to the provision of assistance to victims of crime. In considering this, the Commission is asked to consider whether there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model.
1.13 Accordingly, while the purpose and rationale for state-funded financial assistance schemes for crime victims is discussed to provide historical context, the Commission does not consider the question of whether or not Victoria should continue to have a state-funded scheme.[3] This question is outside the scope of the Commission’s terms of reference. The question centrally within the Commission’s terms of reference is: which is the most effective model?
1.14 Also outside the scope of the Commission’s terms of reference is consideration of the role of the Victims Support Agency and the Victims Assistance Program—although both are discussed in Chapter 4 to provide context for the Commission’s review. Notwithstanding this, the Commission considers it important to acknowledge from the outset the significant role the Victims Support Agency and the Victims Assistance Program continue to provide in supporting victims of crime in their recovery journey.
1.15 In considering the matters identified in both the first and supplementary terms of reference, and in conducting the review, the Commission is guided by the objectives specified in the supplementary terms of reference—namely, that a state-funded assistance scheme for victims should seek to achieve outcomes for victims that:
• are fair, equitable and timely
• are consistent and predictable
• minimise trauma and maximise the therapeutic effect for victims.
1.16 In addition, the supplementary terms of reference specify that a state-funded financial assistance scheme must be efficient and sustainable for the state.
1.17 In undertaking this review, the Commission is conscious of the importance of keeping the perspectives of victims themselves at the forefront of the reform process. As one victim put clearly in their submission to the Commission:
I can honestly understand why victims don’t bother to pursue ‘justice’ and why the police, legal fraternity, judiciary and mental health support services actively dissuade entry into the court and tribunals. The entire system is weighed heavily against the complainant. Gatekeepers are met at every step.[4]
The Commission’s process
The Division
1.18 The Chair of the Commission, the Hon. Philip Cummins AM, exercised his powers under section 13(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) to constitute a Division, which he chaired, to oversee the conduct of this reference.
1.19 Ms Liana Buchanan, Mr Bruce Gardner PSM, Dr Ian Hardingham QC, and the Hon. Frank Vincent AO QC joined the Chair on the Division for the duration of the reference. Ms Gemma Varley PSM was also part of the Division during the initial research stages and during preparation of the first consultation paper.
First consultation paper
1.20 In June 2017, the Commission published the first consultation paper responding to the first terms of reference.[5] This followed preliminary consultations with representatives of key stakeholders from the courts and judiciary, government departments, family violence advocacy and service providers, legal services and victim support agencies.
1.21 The first consultation paper considered the findings of the Royal Commission into Family Violence, matters raised during preliminary consultations and preliminary analysis of relevant case law, academic literature, government reviews and inquiries.
1.22 The first consultation paper sought the views of victims, persons affected, professionals, stakeholders and the community on key aspects of the VOCAA and the operation of VOCAT as they relate to victims of family violence. The paper posed 66 questions for consideration and invited written submissions by 28 July 2017. This submission deadline was later extended until 31 October 2017 following receipt of the supplementary terms of reference and publication of the supplementary consultation paper.
Supplementary consultation paper
1.23 In August 2017, the Commission published a supplementary consultation paper responding to the supplementary terms of reference.[6] The supplementary consultation paper was also informed by preliminary consultations with representatives of key stakeholders from the courts and judiciary, government departments, family violence advocacy and service providers, legal services and victim support agencies.
1.24 The supplementary consultation paper built on some of the matters raised in the first consultation paper. The paper introduced a number of additional considerations relevant to the broader operation of the VOCAA and VOCAT for all victims of crime as required by the supplementary terms of reference. The supplementary consultation paper also included analysis of relevant case law, academic literature, government reviews and inquiries as related to the broader terms of reference.
1.25 The supplementary consultation paper sought the views of victims, persons affected, professionals, stakeholders and the community on key aspects of the VOCAA and the operation of VOCAT. The supplementary consultation paper posed 51 questions for consideration and invited written submissions on both consultation papers by
31 October 2017.
Submissions
1.26 A total of 60 written submissions were received in response to both consultation papers (see Appendix A). Those which may be made public are published on the Commission’s website.
Consultations
1.27 In conducting this reference, the Commission consulted with individuals and organisations with experience of the VOCAT process or whose work intersects with the provision of support to victims of crime.
1.28 Two stages of consultations were held. The first consisted of preliminary meetings to assist the Commission in gathering information for the first and supplementary consultation papers.
1.29 The second stage consisted of formal consultations with individuals and organisations and commenced following publication of the supplementary consultation paper. Formal consultations were held with victims, including family violence ‘victim survivors’, the courts and judiciary, private and specialist legal practitioners, community legal centres, victim, witness and court support organisations, victims’ advocacy organisations, peak advisory or advocacy organisations for victims of crime, family violence and other diverse communities, and state-funded financial assistance agencies in other Australian jurisdictions and academics. Over 30 formal consultation meetings were held, with the Commission consulting with some stakeholders on more than one occasion (see Appendix B).
The Commission’s approach
Recognising the diversity of victims
1.30 In the Commission’s first and supplementary consultation papers, the Commission acknowledged the diversity of victims and how this may affect a victim’s recovery from a criminal act.[7] Experiences of victimisation can be influenced by a broad range of factors including age, gender, sex, religion, sexual orientation, ethnicity, culture, disability, socio-economic status, geographic location, health, crime types, relationship with the perpetrator and a victim’s past experiences of the justice system.[8]
1.31 In reviewing the operation and effectiveness of the VOCAA and VOCAT, the Commission has approached recommendations for reform in a way that recognises victims may have personal characteristics, vulnerabilities and structural influences that impact their experience of victimisation.[9] The Commission aims to ensure such diversity is represented in the recommendations contained throughout. This includes recognising that a range of intersectional factors may also impact a victim’s recovery from crime.[10] For example, the Commission acknowledges that for victims of family violence, the impacts of violence can often be compounded by various forms of marginalisation.[11]
Recognising family violence victims
1.32 As noted above, the first terms of reference asked the Commission to consider how the purpose and objectives of the VOCAA are realised for family violence victims, having regard to the issues raised by Recommendation 106 of the Victorian Royal Commission into Family Violence (the Royal Commission into Family Violence). The supplementary terms of reference require the Commission to expand its inquiry to consider the operation and effectiveness of the VOCAA and VOCAT for all victims of crime.
1.33 Each of the matters specified in the first terms of reference are considered throughout this report contextually, as they arise. The Commission’s approach to addressing the first and supplementary terms of reference is outlined below.
1.34 To assist readers who have a particular interest, Appendix C provides a summary of how relevant recommendations in this report have considered the unique circumstances of victims of family violence.
Addressing the first and supplementary terms of reference
1.35 When considered together, the first and supplementary terms of reference require the Commission to adopt a broad approach and consider the operation and effectiveness of the VOCAA and VOCAT for all victims, including family violence victims.
1.36 Fundamentally, the overarching questions posed by both terms of reference are:
• What changes should be made to the VOCAA to better assist victims of crime, including victims of family violence, to rebuild their lives and recover?
• Are there other models of state-funded financial assistance that would more effectively deliver assistance?
1.37 Each of these questions is wide-ranging and substantial. They require the Commission to consider not only legislative barriers that may be encountered by victims under the VOCAA, but any structural or procedural barriers related to the existing model of assistance.
1.38 To ensure each of the matters raised in the terms of reference are considered holistically, the Commission has adopted a broad approach to its consideration of reform proposals. Rather than consider each of the matters specified in the terms of reference in isolation, or sequentially following the structure of the terms of reference, the Commission has used a thematic approach which aims to:
• as a fundamental and threshold issue, identify the most effective model of assistance (Chapters 7–10)
• address legal and technical barriers (Chapters 11–16)
• address issues of sustainability and implementation (Chapters 17–19).
1.39 As a result of this thematic approach, each of the matters specified in the first and supplementary terms of reference are considered throughout the report as they arise. To provide a ‘roadmap’ for readers, a summary is provided in Appendix D detailing where, and how, each of the matters raised in both the first and supplementary terms of reference has been considered throughout this report.
Report structure
1.40 This report is divided into six parts, commencing with this introductory chapter which forms Part One of the report—’Introduction and context’. An overview of other initiatives, reviews and reforms relevant to the Commission’s review is provided in Chapter 2.
1.41 Part Two—’State-funded financial assistance for victims of crime’ comprises Chapters 3–6. It sets out the history and purpose of state-funded financial assistance schemes (Chapter 3), describes Victoria’s existing approach under the VOCAA and VOCAT (Chapter 4) notes key issues with the existing scheme as identified to the Commission by stakeholders (Chapter 5) and considers the place of an alleged perpetrator in any state-funded financial assistance scheme (Chapter 6). This part provides the basis for the Commission’s consideration in Part Three of the need for a new approach.
1.42 Part Three—’The need for a new model of state-funded financial assistance for victims of crime’ addresses supplementary terms of reference matter 8 which asks the Commission to consider whether there are other models of state-funded financial assistance that would more effectively deliver assistance. It comprises Chapters 7–10 of the report.
1.43 Chapter 7 provides an assessment of victims’ needs and the existing scheme. Chapter 8,
as required by the supplementary terms of reference, considers what model would more effectively deliver assistance for victims of crime and sets out the Commission’s recommendations for a new Act (proposed Act) and new scheme (proposed scheme). Chapters 9 and 10 set out the Commission’s recommendations for the establishment of a new decision maker and key components of the proposed scheme.
1.44 Part Four—’The proposed Act for victims of crime financial assistance’ comprises Chapters 11–16. Chapter 11 sets out the purpose, objectives and principles of the proposed Act. Chapters 12–16 consider technical and procedural issues including eligibility criteria (Chapter 12), assistance available (Chapter 13), the process for making and application (Chapter 14) and decision making under the proposed Act and scheme (Chapter 15). Chapter 16 considers the interaction of the proposed scheme with other financial assistance schemes and when a refund of an award may be required.
1.45 Part Five—’Sustainability and implementation’ comprises Chapters 17–19. Chapter 17 makes recommendations to improve victims’ awareness and access of the proposed scheme. Chapter 18 discusses the costs and sustainability of the proposed scheme and Chapter 19 outlines monitoring of the proposed scheme to ensure best practice.
1.46 Part Six concludes the report and the body of recommendations that have been made by the Commission.
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Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017).
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Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017).
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For discussion on the purpose and rationale of such schemes see, eg, Michael Kirby, ‘Compensation for Victims of Criminal Injuries in Australia’ (Paper presented at the British Institute of International and Comparative Law Conference, Windsor Great Park, United Kingdom, 27 March 1981) 6–7.
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Submission 60 (BFK).
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Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017).
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Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017).
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See, eg, Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 177–8; Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 18–19.
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See, eg, Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process—Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences? Information Paper 2 (2015) 3–5. See generally, Victorian Government, Designing for Diversity and Intersectionality <www.vic.gov.au/familyviolence/designing-for-diversity-and-intersectionality.html>.
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Elaine Wedlock and Jacki Tapley, What Works in Supporting Victims of Crime: A Rapid Evidence Assessment (Victims’ Commissioner and University of Portsmouth, 2016) 8.
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‘Intersectionality’ in this context refers to different parts of a person’s identity resulting in overlapping—or ‘intersectional’—forms of discrimination or disadvantage. See, for example, Victorian Government, Designing for Diversity and Intersectionality <www.vic.gov.au/familyviolence/designing-for-diversity-and-intersectionality.html>.
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Australia’s National Research Organisation for Women’s Safety, Invisible Women, Invisible Violence: Understanding and Improving Data on the Experiences of Domestic and Family Violence and Sexual Assault for Diverse Groups of Women, State of Knowledge Paper No DD01 (ANROWS Landscapes, 2016) 12.