Victims of Crime Assistance Act 1996: Report (html)

10. Key components of the proposed victims of crime financial assistance scheme

Introduction

10.1 In Chapter 8, the Commission recommended that a proposed new state-funded financial assistance scheme (the proposed scheme) be established, led by an independent, dedicated and specialised decision maker. The Commission also recommended that the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) be repealed and replaced with a new Act (the proposed Act) which establishes the proposed scheme.

10.2 In Chapter 9, the Commission made recommendations about the new decision maker, including recommendations in relation to the decision maker’s appointment, functions and powers, and the composition of the decision maker’s office so as to ensure they can be effectively supported in the exercise of their powers.

10.3 This chapter makes recommendations in relation to key components of the proposed scheme, including:

• mechanisms for victim recognition, including opportunities to be heard and acknowledged by the decision maker

• case management of financial assistance applications through the proposed scheme’s processes

• legal representation during the financial assistance process

• restorative justice pathways under the proposed scheme

• mechanisms for specialisation within the proposed scheme.

Victim recognition

10.4 As noted in Chapter 8, a key rationale for adopting an administrative model with an independent, dedicated and specialised decision maker is the ability to enhance mechanisms for victim acknowledgment and recognition.

10.5 Accordingly, this section of the chapter considers:

• current mechanisms under the VOCAA for recognising victims

• how victim recognition is provided for in other jurisdictions

• stakeholder and community views on victim recognition.

10.6 This section then makes recommendations in relation to how victim recognition should be incorporated into the proposed scheme.

Current mechanisms for victim recognition under the VOCAA

10.7 There is only one legislatively enshrined mechanism for victim recognition under the VOCAA, which stems from the VOCAA’s second stated objective, which is 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.^[1]

10.8 In practice, there are two main mechanisms for victim recognition under the VOCAA:

• through the use of Victims of Crime Assistance Tribunal (VOCAT) hearings

• through the provision of some financial assistance payments.

10.9 These mechanisms are outlined further below.

Hearings

10.10 Hearings under the VOCAA are not legislatively established for the purpose of victim recognition. Instead, hearings under the VOCAA are part of VOCAT’s decision making process, in that VOCAT decides to conduct a hearing when considered necessary for the purposes of decision making.^[2]

10.11 Accordingly, when a hearing is conducted, it is conducted in a similar way to a court hearing, with parties to the proceeding given opportunity to call or give evidence; examine, cross-examine or re-examine witnesses; and make submissions to VOCAT.^[3]

10.12 Additionally, ‘any other person or body that, in the Tribunal’s opinion, has a substantial interest in a matter is entitled to appear and be heard by the Tribunal’.^[4] Those who may have a ‘substantial interest’ in a VOCAA matter may include the alleged perpetrator who is the subject of the VOCAT application.^[5] These provisions demonstrate that VOCAT hearings are structured not for the purposes of victim recognition, but for the purposes of fact finding and legal submissions. This is particularly so in the context of the provision enabling VOCAT to notify alleged perpetrators as discussed further below.

10.13 Since the VOCAA enables victims to request a VOCAT hearing,^[6] some VOCAT hearings can function as a forum for victim recognition. As described in Chapters 7 and 8, the Commission has been told of the powerful nature of some VOCAT hearings as a form of victim recognition and acknowledgment. As VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted:

for some victims, their recovery journey includes having their “day in Court”, to have their experience formally acknowledged and to have their story believed.^[7]

10.14 While not a legislated purpose under the VOCAA, victim recognition is therefore sometimes achieved through the VOCAT hearing process.

Financial assistance

10.15 There is some evidence to indicate that any payment of financial assistance from a state-funded financial assistance scheme may be perceived by victims as recognition or acknowledgment by the state.^[8]

10.16 However, under the VOCAA, only certain victims are eligible for payments that are specifically provided as a form of recognition. This stems from the VOCAA’s second stated objective, which is 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.^[9]

10.17 Although the VOCAA does not define ‘certain victims’ for the purposes of this objective, financial assistance as recognition is limited to certain victims in two ways.

10.18 First, payments of special financial assistance are only available to primary victims who suffer a significant adverse effect as a direct result of an act of violence.^[10] In addition, awards for distress are only available to related victims.^[11] This narrows the definition of certain victims of crime, to primary victims who suffer a significant adverse effect and to some related victims suffering distress.^[12]

10.19 The second way in which financial assistance as recognition is limited to certain victims is through case law interpretation of provisions giving rise to refusal or reduction of awards on the basis of the victim’s character and behaviour.^[13] An example of this can be seen in Attard v Victims of Crime Assistance Tribunal,^[14] where the Victorian Civil and Administrative Tribunal noted that it would be contrary to the objects of the VOCAA to grant assistance (to the deceased victim’s partner and daughter) because of the victim’s contributory conduct leading up to his death and his prior criminal record, stating it would be an ‘offence’ to the objectives of the VOCAA to make an award of assistance.^[15]

10.20 Similarly, in RUM v Victims of Crime Assistance Tribunal^[16] the Victorian Civil and Administrative Tribunal considered the applicant’s lack of remorse and insight in relation to his prior offending in determining not to award financial assistance because, according to the objectives of the VOCAA, the decision maker must consider ‘whether an applicant is an appropriate recipient of a symbolic expression by the state of the community’s sympathy’.^[17] These decisions demonstrate that financial assistance as recognition is currently limited to those victims who are an ‘appropriate’ recipient of assistance, or a ‘deserving’ victim, having regard to their character or behaviour.^[18]

An overview of victim recognition mechanisms

Victim recognition in other state-funded financial assistance schemes

10.21 In a number of other Australian schemes, victim recognition is expressly provided for through lump sum financial payments.

10.22 The Australian Capital Territory and the New South Wales schemes specifically provide for victim recognition through ‘recognition payments’, which are similar to the current special financial assistance payments under the VOCAA.

10.23 In the Australian Capital Territory recognition payments are made ‘for the trauma experienced … as a result of an act of violence’.^[19]

10.24 In New South Wales, primary victims of an act of violence are eligible to apply for a recognition payment ‘to acknowledge the trauma suffered’.^[20]

10.25 In Queensland, Victim Assist Queensland have described their equivalent lump sum payment as ‘a recognition payment given to primary victims’ although it is called ‘special assistance’.^[21]

10.26 No administrative schemes in Australia have victim recognition mechanisms which are separate from financial payments (for example, through hearings or written acknowledgment), other than the provision of ‘statements of reasons’. These are written statements provided to a victim outlining the reasons for the decision, and the factors the decision maker took into account in reaching that decision. For example, the Victims of Crime Assistance Act 2009 (Qld) specifies the circumstances in which a decision maker must provide the applicant with a statement of reasons. These circumstances include, but are not limited to, granting an application or refusing an application.^[22] Victim Assist Queensland (VAQ) states on its website: ‘Once we have made our final decision we will send you a notice of decision and statement of reasons. These will tell you what we have agreed to help with and why.’ The Commission was told that approximately 200–300 statements of reasons are issued by VAQ each month.^[23]

10.27 In New South Wales, similar legislative provisions to Queensland apply, requiring the decision maker to provide a ‘statement of the reasons’ for approving or dismissing an application.^[24]

10.28 The Commission was told by scheme representatives in New South Wales and Queensland that the provision of comprehensive statements of reasons provides victims with a form of acknowledgment because they represent an official state acknowledgment of a victim’s experience of victimisation.^[25] However, the respective jurisdictions’ legislation does not expressly provide that this is a reason such statements are given to victims.

Private sessions—Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse

10.29 The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse provides an example of how victim recognition can be incorporated into an official legal process through carefully managed hearings. These approaches build on other sensitive and flexible approaches adopted for similar inquiries, which aim to support victims of crime to participate in formal hearings, such as the approach used by the Victorian

Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations.^[26]

10.30 Following the appointment of the Royal Commission, the Royal Commissions Act 1902 (Cth) was amended to provide for ‘private sessions’, a forum for victims to share their experience in a private, protected and supported environment.^[27]

10.31 Private sessions enabled the Royal Commission to hear directly from victims without such sessions being considered a ‘hearing’ of the Royal Commission, nor victims being considered a witness to the Royal Commission.^[28] This approach enabled flexibility to cater for different needs of those wishing to attend a session, while still providing a forum for victims to share their story with a Commissioner.^[29]

10.32 Statements made and documents produced at a private session were not admissible in evidence in any civil or criminal proceedings.^[30]

10.33 The Royal Commission emphasised that the private sessions model was designed using trauma-informed principles, engaging in ways that affirmed survivors’ experiences.^[31] Those participating in private sessions were not required to take an oath or affirmation and were not subject to cross-examination, although they were expected to tell the truth. Sessions took place in different settings and included Commission offices, aged care facilities, prisons and hotel rooms.^[32]

10.34 Key to these private sessions was an approach of recognition, acknowledgment and ‘affirmation’. The Commonwealth Royal Commission stated:

We engaged people in ways that affirmed their experiences and responses while minimising interactions or processes that could increase their trauma^[33]

Private sessions did not follow a rigid structure. It was up to each attendee how and to what extent they would detail their experiences. They were provided opportunities to share their experiences, the impact of the abuse and trauma on their lives, and their suggestions for better protecting children in the future.^[34]

10.35 Survivors were invited to tell their story in a way that was comfortable to them, with Commissioners there to ‘listen, to bear witness’.^[35]

10.36 The Royal Commission established processes based on advice from psychiatrists, psychologists and social workers to ensure survivors felt safe, supported and heard.^[36] Private sessions have been described as ‘a unique truth telling process unlike any other in the criminal or civil justice systems’,^[37] with the Royal Commission stating that victims ‘felt that the Australian Government and the people of Australia were finally taking them seriously and that what they had to say about their experiences of child sexual abuse was valued’.^[38]

Apologies to victims

10.37 The theme of apologies to victims arose in consultations and in written submissions as a way in which victims can be recognised. It was raised in two distinct ways by stakeholders:

• apologies to individual victims of crime by a magistrate during a VOCAT hearing

• state apologies to victims of crime, representing an official apology given by a representative of the state for past injustices.^[39]

10.38 While these concepts of ‘apology’ differ, both conceptualise the state as providing some kind of apology to victims, as outlined further below.

Apologies to individual victims of crime

10.39 Victoria is one of only a few Australian jurisdictions to enable a victim to elect to attend a hearing^[40] and therefore one of the few jurisdictions in which an apology by a judicial officer during a state-funded financial assistance hearing may occur.

10.40 While there is no express provision for a Tribunal member to provide an apology to a victim of crime under the VOCAA, it is nonetheless consistent with the flexibility afforded to VOCAT under the VOCAA, which does not require VOCAT to conduct itself in a formal manner, nor comply with rules of evidence.^[41]

10.41 In this regard, VOCAT hearings provide the Tribunal with an opportunity to provide ‘an empathetic forum for victims to tell their story and have their experiences of loss and suffering acknowledged by a judicial officer’^[42] and it is within these flexible hearings that the Commission was told that some magistrates apologise to victims.^[43]

State apologies to victims of crime

10.42 In a consultation with the Victim Survivors’ Advisory Council,^[44] the question of a state apology^[45] in relation to the former defence of provocation to the crime of murder was raised, noting the defence of provocation was abolished by the Crimes (Homicide) Act 2005 (Vic).^[46]

10.43 State apologies—an official apology given by a representative of the state for past injustices—typically occur following commissions of inquiry, in post-conflict environments or following government regimes inflicting human rights abuses.^[47] An Australian example is the Apology to Australia’s Indigenous Peoples by former Prime Minister of Australia, The Hon. Kevin Rudd MP in 2008.^[48] The Prime Minister of Australia, the Hon. Malcolm Turnbull MP, has recently announced his intention to deliver a national apology to survivors of institutional child sexual abuse by the end of 2018.^[49]

10.44 Cheryl Regehr and Thomas Gutheil have described a state apology as having three main components:

• acknowledgment of the offence

• a willingness to admit wrongdoing

• a willingness to state that the act will not be repeated.^[50]

10.45 Regehr and Gutheil contend that state apologies can be one way of acknowledging the suffering experienced by victims.^[51] As stated by the International Center for Transitional Justice, state apologies can be a form of symbolic reparation:

an apology is a formal, solemn and, in most cases, public acknowledgement that human rights violations were committed in the past, that they caused serious and often irreparable harm to victims, and that the state, group, or individual apologizing is accepting some or all of the responsibility for what happened.^[52]

10.46 Janna Thompson notes that an official state apology represents a ‘watershed’ moment requiring preparation, ceremony and subsequent actions following the apology.^[53] The International Center for Transitional Justice state that apologies act as a ‘symbolic turning point’.^[54]

10.47 In this context, parallels might be drawn between state apologies and redress schemes, which Kathleen Daly describes as broader than financial assistance: ‘in addition to monetary payments, benefits, and services, redress outcomes may include public apologies, memorialisation, and commemoration’.^[55]

Responses

Victim recognition through hearings

10.48 Consultation views on victim recognition overwhelmingly focused on the importance of hearings as an opportunity for victim recognition and acknowledgment. A significant number of stakeholders highlighted the need for there to be hearings in some form,^[56] and considered it important that victims be able to opt-in to hearings.^[57]

10.49 While many stakeholders considered it important for some form of hearing to remain an option for victims, very few spoke specifically about how such hearings should be conducted, or the essential elements of such hearings.

10.50 Domestic Violence Victoria submitted that there should be a ‘symbolic’ hearing by a person with authority^[58] while others told the Commission about victim-centred approaches like the private sessions conducted by the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse.^[59]

10.51 Safe steps Family Violence Response Centre submitted that the Victims of Crime Commissioner should conduct hearings,^[60] while the Victims of Crime Commissioner proposed victim conferences as a forum where victims would have an opportunity to discuss their experience and be acknowledged by a senior government official.^[61]

10.52 The Victim Survivors’ Advisory Council told the Commission that a non-judicial hearing—while not part of the criminal process—might still address the imbalance of the criminal justice system for victims.^[62]

Victim safety during hearings

10.53 Although noting the importance of hearings as a forum for victim recognition, a number of stakeholders also raised concerns about victim safety during hearings under the existing scheme. While these concerns were raised in relation to the hearing process under the existing scheme, it is important to consider stakeholder concerns about victim safety to ensure the proposed Act does not replicate safety issues experienced under the VOCAA.

10.54 As noted above and discussed in Chapter 6, VOCAT can notify any person who may have a ‘substantial interest’ in the matter, and this person has a right to be heard by the Tribunal.^[63] This includes the alleged perpetrator.

10.55 As also discussed in Chapter 6 a number of stakeholders were concerned about the provisions enabling VOCAT to notify an alleged perpetrator^[64] and there was strong stakeholder support for limitations to perpetrator notification or appearance provisions in the VOCAA, including that:

• the perpetrator notification provision be abolished entirely^[65]

• a legislative presumption against perpetrator notification be introduced,^[66] particularly for specific classes of victims, such as victims of family violence^[67] and victims of sexual assault^[68]

• perpetrator notification only occur where it is required to enable the decision maker to determine whether the criminal act occurred,^[69] where it is necessary to reach a fair decision,^[70] is proportionate to the facts,^[71] or where there are substantial doubts about the veracity of an application^[72]

• perpetrator notification only occur in ‘special circumstances’ or only if there are further safeguards in place to protect victims.^[73]

10.56 The Victorian Information Commissioner submitted that where the privacy of victims cannot be assured, victims may be deterred from lodging an application.^[74]

10.57 Springvale Monash Legal Service submitted that the VOCAA should be reformed to abolish the provision for an alleged perpetrator to have a substantial interest in a VOCAT matter.^[75] The Commission was told that there seemed to be little rationale for perpetrator notification, given VOCAT is not making a finding of guilt.^[76] In particular, stakeholders told the Commission that under an administrative scheme, where a judicial officer is not making a finding against an alleged perpetrator, there may be little rationale for retaining the perpetrator notification provision.^[77]

10.58 Dr Kate Seear et al raised concerns about victims of sexual assault, sexual abuse and/or family violence being subjected to extensive and often gruelling cross-examination by counsel representing the alleged perpetrator, particularly as rules of evidence do not apply under the VOCAA, thereby enabling such cross examination.^[78]

Victim recognition through financial assistance

10.59 Stakeholder views on victim recognition provided through financial assistance primarily focused on how:

• the amount of assistance provided as recognition can in fact fail to ‘recognise’ victims when it is perceived as inadequate by a victim

• financial assistance payments provided as recognition can give rise to moral judgments about ‘deserving’ and ‘undeserving’ victims.

10.60 The Commission was told by some academics that victims may view lump sum payments, like special financial assistance under the VOCAA, as a symbolic recognition of the wrong committed and so may not be as concerned by the amount of money provided through such a payment.^[79]

10.61 This contrasted with the views of other stakeholders. Some submitted that the sums available for special financial assistance ‘are so low that they become an insult’ and that as a consequence, the VOCAA’s objective of ‘recognising’ victims is not met.^[80] A significant number of stakeholders said that the amounts of special financial assistance available under the VOCAA are inadequate.^[81] For similar reasons, there was stakeholder concern about recognition payments, like special financial assistance, being divided into categories with different award amounts. The Commission was told that the effect of categories, and their varying awards, is to imply some victims are more deserving than others,^[82] and so this may not adequately recognise the harms suffered by victims.^[83]

10.62 Concerns held by other stakeholders were not related to the amount of assistance provided as recognition, but to the way in which such payments can give rise to moral judgments about who is ‘deserving’ of such payments. Some stakeholders expressed concern about providing financial assistance as a symbolic expression of sympathy and condolence as this ‘introduces a set of political and moral considerations about who evokes and “deserves” sympathy’.^[84]

10.63 Darebin Community Legal Centre submitted that ‘forcing a victim to justify that they are worthy of payment, reinforces stigma and marginalisation and can be re-traumatising’,^[85] while the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that the current operation of financial assistance as recognition only for ‘certain victims’ ‘invite[s] misinformed views about “deserving” and “undeserving” victims’.^[86]

10.64 The Commission was also told that the underlying purposes of such financial assistance are inconsistent, and potentially in competition, with the VOCAA’s other, more practical, objective—‘to assist victims of crime to recover’ by providing financial assistance for expenses incurred or reasonably likely to be incurred.^[87] One stakeholder told the Commission that the focus of the scheme should be on victim recovery, not on recognition of harm, and that special financial assistance should therefore be abolished.^[88]

10.65 These stakeholder views demonstrate that the provision of financial assistance under the VOCAA to recognise certain victims is problematic because the amounts provided as recognition may not correspond with what a victim considers appropriate recognition, and because recognising certain victims necessarily excludes some victims from receiving payments which may create hierarchies of victimhood.

Consultation views on other opportunities for victim recognition

10.66 The Commission was told that hearings should not be the only source of victim recognition or acknowledgment. For example, both the Victorian Victims of Crime Commissioner and the ACT Victims of Crime Commissioner told the Commission that victim acknowledgment can be achieved in other ways.^[89] Similarly, the Victorian Community Safety Trustee told the Commission that there are other ways for the justice system to recognise victims, such as through victim impact statements during the criminal trial process.^[90]

10.67 Other stakeholders submitted that the provision of an official award in and of itself can validate victims:

quite often the recognition in the form of an official award from the Tribunal carries significant benefits in the form of validation and closure. This is particularly our experience in the context of sexual abuse matter or where the victim has felt disempowered by the criminal process.^[91]

10.68 Some of these alternative mechanisms for victim recognition are discussed further below.

Comprehensive statements of reasons

10.69 The use of comprehensive statements of reasons in other administrative schemes was raised a number of times by stakeholders as being a source of acknowledgment and validation for victims. The Commission was told of victims who had pursued claims through the New South Wales administrative system and had felt acknowledged through receiving these statements. For example, one legal professional told the Commission that a victim had received a four-page statement of reasons and had felt acknowledged and validated.^[92] Similarly, the NSW Commissioner of Victims Rights also told the Commission that many victims feel validated and believed when receiving the written statement of reasons.^[93]

10.70 Victim Assist Queensland told the Commission that a statement of reasons can be a source of validation and acknowledgment for a victim as it signifies that the state acknowledges them as being a victim of crime.^[94]

10.71 In contrast, some stakeholders said that because VOCAT does not provide a statement which details how they reached their decision, it ‘fails to make victims feel that the harm caused to them is acknowledged’.^[95]

Apologies to individual victims of crime

10.72 The importance of an apology for individual victims of crime, expressed on behalf of the community or the state, was highlighted by a number of stakeholders.^[96] The Commission was told that for many victims of crime, the most important thing is acknowledgment—an apology or expression of sympathy from the state.^[97]

10.73 Many stakeholders did not consider an apology as being tied to the financial payment under the VOCAA. This is significant because special financial assistance—the provision of a lump sum payment—is currently the primary way in which the existing scheme expresses the state’s ‘sympathy’.^[98]

10.74 The Law Institute of Victoria submitted:

In some cases, the opportunity to have their harm formally recognised and receive an apology on behalf of the State of Victoria is more rewarding [for victims] than the monetary award they receive.^[99]

10.75 Another submission stated:

I merely wanted a tribunal to listen to my story and say to me, in words like these: We believe you. We acknowledge your pain and your trauma at the hands of an abusive and violent person. We are sorry that this has happened to you.^[100]

10.76 The South Metropolitan Integrated Family Violence Executive submitted: ‘Many Tribunal members verbally acknowledge and recognise the suffering of the victim and, often, apologise on behalf of the State for the crime that occurred.’^[101]

State apologies to victims of crime

10.77 In a consultation with the Victim Survivors’ Advisory Council,^[102] the question of a state apology in relation to the former defence of provocation to the crime of murder was raised, noting that the defence of provocation was abolished by the Crimes (Homicide) Act 2005 (Vic). In the Second Reading speech, the then-Attorney-General, the Hon. Rob Hulls MP stated that the defence of provocation:

condones male aggression towards women and is often relied upon by men who kill partners or ex-partners out of jealousy or anger. It has no place in a modern, civilised society.^[103]

10.78 In this context, the Commission was told by the Victim Survivors’ Advisory Council that a state apology should be made for a past law which is now accepted to have been discriminatory against women.^[104]

Discussion and recommendations

The need for different types of victim recognition

10.79 Research emphasises that financial assistance ‘entails more to victims that just a simple financial deed’.^[105] In particular, research by Mulder indicates that for victims, financial assistance may provide acknowledgment and a sense of justice.^[106]

10.80 Although acknowledgment or recognition can be a valued outcome from a victim’s participation in the financial assistance process, as outlined in Chapter 7, victims’ needs vary. While some victims will want to have an interaction with the financial assistance decision maker, others will simply wish to receive practical financial assistance.

10.81 This is demonstrated by the varied views on victim recognition expressed by stakeholders during consultations and in written submissions. While hearings can be an important forum for victim recognition, other mechanisms such as written acknowledgment may also be just as important to victims.

10.82 The Commission considers it important that the proposed Act provide for different components of victim recognition, including:

• comprehensive written statements of reasons for decisions (all victims)

• recognition statements (all victims)

• victim conferences (opt-in).

10.83 Providing a letter or statement of acknowledgment or recognition was also raised in VOCAT’s review of the pilot Koori List as a further way to acknowledge victims.^[107] Participants in that review suggested that a letter of acknowledgment should accompany any award notification, be signed by a tribunal member and acknowledge that the applicant has suffered.^[108]

10.84 The Commission considers that both the statement of reasons and the recognition statement should be provided to all eligible victims under the proposed scheme as a matter of course. The Commission considers that a victim conference should be available where a victim requests one, but should not be mandatory.^[109]

10.85 Significantly, the Commission considers that victim recognition should no longer be the legislated purpose of the provision of financial assistance payments.

10.86 Before outlining how victim recognition mechanisms will work under the proposed scheme, the Commission considers two preliminary matters:

• why it is proposed that financial assistance no longer be provided with a legislatively expressed purpose of ‘recognition’, as is currently the case under the VOCAA

• individual apologies to victims of crime during the financial assistance process, as well as state apologies to victims of crime.

Reconceiving financial assistance—recovery versus recognition

10.87 Although under the VOCAA, some financial assistance payments are provided as a form of victim recognition, the Commission considers that victim recognition should not be the purpose of financial payments under the proposed scheme. The Commission acknowledges that this departs from other Australian schemes, as detailed above, as well as from the VOCAA which provides for financial assistance to:

certain victims of crime … 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.^[110]

10.88 While the Commission acknowledges that some victims may feel recognised and acknowledged by payments of financial assistance,^[111] in the Commission’s view, recognition for victims under the proposed Act is better provided for in non-pecuniary ways, through comprehensive statements of reasons for decisions, recognition statements and through the introduction of victim conferences.

10.89 The Commission has formed this view for the following three reasons:

• Linking victim recognition to monetary payments can lead to perceptions of inequity because ‘the representation in money terms of the victim’s pain and suffering … is a necessarily arbitrary exercise’.^[112] The Commission was told that amounts of special financial assistance under the VOCAA are so low they only served to ‘insult’ some victims; that creating categories for provision of lump sum payments to recognise victims can imply that some victims are more deserving of sympathy or recognition than others; and that prescribed categories for lump sum payments may not adequately recognise victims. These issues demonstrate that the provision of financial assistance as an expression of recognition can be fraught, and can result in victims experiencing further distress.^[113]

• Tying financial payments to recognition and acknowledgment has in the past resulted in moral judgements about who is, or is not, ‘deserving’ of the state’s or community’s recognition.^[114] The Commission was told that providing financial payments to certain victims as recognition, ‘introduces a set of political and moral considerations about who evokes and “deserves” sympathy’.^[115] In particular, the Commission considers that providing a lump sum payment for symbolic recognition of a victim’s experience may create an unhelpful hierarchy between victims. This is discussed further in Chapter 11 in relation to the purpose and objectives of the VOCAA and the proposed Act.

• There is evidence that any payment made to a victim under a state-funded financial assistance scheme—whether expressly provided for in legislation as a payment to ‘assist’, to ‘recognise’ or ‘acknowledge’ a victim—may be viewed by the victim as a form of acknowledgment or recognition. For example, Miers’ research into the Dutch Crime Compensation Fund found that a high proportion of victims surveyed (83 per cent) considered the financial award helped them feel acknowledged as a victim, even though the Dutch Crime Compensation Fund does not specifically provide for acknowledgment in the making of awards under the relevant financial assistance scheme.^[116]

10.90 As observed by Hayley Catherine Clark:

victim/survivors’ narratives suggest that providing greater emphasis on listening to their personal stories and validating the individual, acknowledging the [financial assistance] payment as nominal and emphasising the wrong … may allow for a better recognition.^[117]

10.91 Accordingly, the Commission considers that the provision of financial assistance, including lump sum payments, should instead be focused on assisting victims in their recovery, and that recognition of victims’ experience should be provided in non-pecuniary ways, focusing on acknowledgment and validation.

10.92 The provision of financial assistance under the proposed scheme is discussed in Chapter 13, which outlines each component of assistance available under the proposed Act, including the operation of lump sum payments.

Apologies

Apologies to individual victims of crime

10.93 As noted above, the importance of magistrates apologising to individual victims of crime during VOCAT hearings was highlighted to the Commission by a number of stakeholders.^[118] The importance of verbal acknowledgment was also raised in VOCAT’s review of the pilot Koori List, in which one legal practitioner said: ‘A lot of victims want to hear someone say, on behalf of the State of Victoria, that we are sorry that this happened. It seems to be very important to Koori applications, this verbal acknowledgement.’^[119]

10.94 While there is no express provision under the VOCAA enabling a Tribunal member to provide an apology to a victim of crime, this type of victim recognition and acknowledgment is consistent with the flexibility afforded to VOCAT under the VOCAA. In this regard, VOCAT hearings can provide ‘an empathetic forum for victims to tell their story and have their experiences of loss and suffering acknowledged by a judicial officer’.^[120]

10.95 The Commission considers the proposed Act should also provide the scheme decision maker with flexibility in conducting victim conferences, discussed below. Accordingly, the Commission considers that it is not necessary for the proposed Act to legislate for victim apologies. This approach is consistent with the current flexibility afforded to VOCAT under the VOCAA and recognises the varying needs of individual victims. Additionally, this approach recognises that legislating for an apology, similar to the current notions of sympathy under the VOCAA, may raise issues where such provisions are interpreted as giving rise to notions about who deserves an apology. This is discussed in more detail in Chapter 11 in relation to the purpose and objectives of the proposed Act.

Parliamentary state apology to victims of crime

10.96 As outlined above, during a consultation with the Victim Survivors’ Advisory Council,^[121] the question of a parliamentary state apology in relation to the former defence of provocation to the crime of murder was raised, noting that the defence of provocation was abolished by the Crimes (Homicide) Act 2005 (Vic). In 2005, in the Second Reading speech, the then Attorney-General, the Hon. Rob Hulls MP stated the defence of provocation had ‘no place in a modern, civilised society’.^[122]

10.97 In the consultation, the Commission was told that a parliamentary state apology should be made for a past law which is now accepted to have been discriminatory against women.

10.98 The Commission considers there is merit in government consideration of a parliamentary state apology for past laws which have failed to protect victims, including that of provocation. While state apologies generally relate to past historical injustices on a broad scale and are made to mark an end-point to a history of wrongdoing,^[123] there is no reason conceptually to preclude a State apology for a specific past law such as provocation. Such an apology would acknowledge injustice to a grievously afflicted class of victims both deceased and living, in the context of human rights. However, parliamentary state apology, including in relation to provocation, would need to be considered in a wider context, including other statutory reforms such as section 40 of the Jury Directions Act 2015 (Vic), which abolished the warning to be given to juries required by Longman v The Queen^[124] in cases where there has been a delay in complaint. As the matter of a parliamentary state apology involves that wider context, the Commission does not make a specific recommendation on it in this report.

Recognition mechanisms under the proposed Act

Statements of reasons and recognition statements

10.99 The use of comprehensive statements of reasons in other administrative schemes were raised a number of times as sources of acknowledgment and validation for victims.^[125] Accordingly, the Commission considers it appropriate that the proposed scheme provide victims with a comprehensive written statement of reasons.

10.100 The Commission also notes that not only are such statements a potential source of acknowledgment for victims, but they would also improve the transparency of decision making under the proposed scheme, which is discussed in more detail in Chapter 15.

10.101 In addition to written statements of reasons, the Commission considers it appropriate that victims be provided with an additional acknowledgment from the state—a recognition statement—which acknowledges their experience and expresses the state’s condolences.

10.102 The Commission considers that this should not be an expression of the state’s or community’s ‘sympathy’. As discussed in Chapter 11, the VOCAA’s existing objective of expressing the state and community’s sympathy has in the past given rise to moral considerations about who evokes and deserves sympathy. Accordingly, the Commission considers it appropriate that the proposed scheme adopt an approach of acknowledgment and recognition, rather than sympathy. This approach is supported by research that indicates many victims simply want an official acknowledgement of their suffering^[126] and that in gaining this acknowledgment, they may then begin to mourn their losses and rebuild their lives.^[127]

10.103 In the Commission’s view, recognition statements should be formulated to provide victims with appropriate acknowledgment and condolence. The Commission considers it important that the recognition statement be personalised and tailored according to each victim’s experiences and include the following elements:

• acknowledgment as a victim of crime

• expression of the state’s condolence

• a personalised and tailored acknowledgment of the effects of crime for that victim.

10.104 The Commission also considers it important that the form and content of recognition statements be developed in consultation with victims of crime to ensure each statement provides appropriate recognition to victims.

Recommendations

11 The proposed Act should provide that all eligible victims are entitled to receive:

(a) a comprehensive written statement of reasons for a decision

(b) a recognition statement, signed by the scheme decision maker or a deputy decision maker on behalf of the state, which acknowledges the effects of the criminal act on the victim and expresses the state’s condolences.

12 The form and content of the proposed recognition statement should be developed in consultation with the Victims of Crime Consultative Committee, to ensure the statement provides appropriate recognition to victims.

Victim conferences

10.105 As already noted, the Commission considers it important for victims to have the opportunity to be acknowledged and heard. In the Commission’s view this opportunity is best created under the proposed scheme through the provision of victim-centred, trauma-informed private hearings. For the purposes of this report, the Commission uses the term ‘victim conference’ to refer to these hearings.

10.106 In the Commission’s view, victim conferences should provide victims with an opportunity for validation, acknowledgment by the state, and should ensure victims are given a voice.

10.107 As discussed above, the use of private sessions was most recently employed by the Commonwealth Royal Commission into Institutional Response to Child Sexual Abuse. The Commission considers that providing a similar trauma-informed forum for a victim to be heard and acknowledged in a state-funded financial assistance scheme would be a unique innovation not only in Victoria, but in Australia.

10.108 The components of the proposed victim conferences are detailed below.

Removing an alleged perpetrator’s right to be notified or appear

10.109 In the Commission’s view victim conferences should be ‘opt-in’ and at a victim’s request. Accordingly, the proposed Act should provide that all victims are entitled to request, and to have, a private victim conference with the scheme decision maker or a deputy decision maker if they are found to be eligible for assistance under the proposed Act.^[128]

10.110 The Commission considers that the purpose of a victim conference should be to provide a private, respectful forum for victims to be heard, and for the impacts of the criminal act on the victim to be properly acknowledged by the decision maker on behalf of the state, and should not be to determine any application, or the amount of any award.

10.111 As victim conferences will be opt-in only, and not for the purposes of determining any application, or the amount of any award, the Commission considers that the perpetrator notification and appearance provisions under the VOCAA should not apply to victim conferences under the proposed Act. As discussed in Chapter 6, alleged perpetrator notification and appearance provisions can significantly impact a victim’s safety and wellbeing and these effects are unlikely to be ameliorated through legislative or procedural protections.

10.112 As also discussed in Chapter 6, the Commission considers that alleged perpetrators do not have a legal interest in the matter of state-funded financial assistance. This is because such a decision has no bearing on other legal matters. The Commission considers that an alleged perpetrator’s interest can be categorised, in the context of state-funded financial assistance, as a reputational interest rather than a legal interest. Accordingly, the Commission proposed in Chapter 6 that perpetrator notification and appearance provisions be removed, and that this reflects a trauma-informed approach that prioritises victims’ safety and wellbeing.

10.113 The Commission acknowledges the concerns raised by some stakeholders that alleged perpetrators should have the opportunity to ‘defend themselves’ at a hearing.^[129] The Commission considers these concerns are no longer applicable under the proposed Act because, in contrast to hearings under the VOCAA, victim conferences would not be for the purpose of fact finding or making financial assistance determinations. Instead, under the proposed scheme, victim conferences would be for the purpose of providing victims with a voice and a forum in which to be acknowledged and heard.

10.114 To support this approach, and similarly to provisions in the Royal Commission Act 1902 (Cth) in relation to private sessions,^[130] the Commission considers that the proposed Act should provide that:

• Victims appearing at a victim conference are not providing evidence.

• Statements made and documents produced at a victim conference are not admissible in evidence in any civil or criminal proceedings, except in the circumstances prescribed in the proposed Act.^[131]

10.115 In the Commission’s view, victim conferences should be conducted in a way conducive to victim acknowledgment, safety and recovery. The Commission considers perpetrator involvement in victim conferences would undermine these objectives.

A trauma-informed approach

10.116 The Commission notes the trauma-informed approach of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse in the coordination of private sessions, including their approach to initiating and preparing for private sessions. This included appropriate correspondence with victims to advise them of the process and timeframes, as well as providing clear information about the process, including the booklet Sharing Your Story: A Guide to Your Private Session.^[132]

10.117 Accordingly, the Commission considers that the proposed Act should specify that victim conferences be conducted in a trauma-informed way which aims to affirm victims’ experiences, while minimising interactions or processes that could increase victims’ trauma, including in deciding the time, place, structure or format of the conference.

10.118 Consistent with the way in which private sessions were conducted by the Royal Commission, the Commission considers that the proposed Act should not be prescriptive about the structure or format of victim conferences, to ensure victims are supported to share their story in a way that responds to their needs.^[133] This should include consideration of an individual’s specific needs, including any cultural needs, special arrangements for victims with a disability, or victims with other special needs or requirements.

10.119 As discussed in Chapter 9, the Commission considers that depending on demand for victim conferences, the proposed scheme should provide for such conferences to be held in culturally appropriate and safe spaces in rural and regional locations. These locations should be chosen in such a way that maximises victims’ choices and respects their privacy, safety and wellbeing. In this context, the Commission notes research highlighting issues of privacy and safety for victims of family violence having to attend rural and regional courts.^[134] The Commission also notes concerns about the appropriateness of VOCAT hearings taking place in court rooms for Aboriginal victims of crime.^[135]

10.120 The Commission considers that the proposed scheme should decide the time and place for a victim conference in consultation with a victim or their support worker where relevant, and should consider not only their geographic location but also any other needs or preferences of the victim.

10.121 Although the structure and format of victim conferences should be flexible, the Commission considers that victims should be given the opportunity to:

• discuss the impacts of the crime

• read aloud a Victim Impact Statement or other written statement

• have a support person/s present

• be represented by a legal representative

• request a single victim conference with multiple victims in attendance.

Recommendations

13 The proposed Act should provide that all eligible victims are entitled to request, and to have, a private victim conference with the scheme decision maker or a deputy decision maker.

14 The proposed Act should provide that:

(a) the purpose of a victim conference is to provide a respectful forum for victims to be acknowledged and heard, and for the impacts of the criminal act on the victim to be properly acknowledged by the scheme decision maker on behalf of the state, and that the purpose is not to determine any application, or the amount of any award

(b) victim conferences must be held in private, and only persons who are authorised by the scheme decision maker may be present during the victim conference

(c) victim conferences should be conducted in a trauma-informed way that aims to affirm victims’ experiences, while minimising interactions or processes that could increase victims’ trauma, including in deciding the time, place, structure or format of the conference

Recommendations (continued)

(d) victim conferences should be conducted in a culturally appropriate safe space, with sufficient flexibility for victims to share their story, with victims provided the opportunity to:

(i) discuss the impacts of the crime

(ii) read aloud a Victim Impact Statement or other written statement

(iii) have a support person/s present

(iv) be represented by a legal representative

(v) at victims’ request, have a single victim conference with multiple victims in attendance.

15 The proposed Act should provide that:

(a) victims participating in a victim conference are not giving evidence

(b) statements made and documents produced at a victim conference are not admissible in evidence in any civil or criminal proceedings, except as expressly provided for in the Act.

Case management

10.122 The supplementary terms of reference ask the Commission to consider how to make it easier for victims to understand all their entitlements and quickly and easily access assistance offered by the scheme without necessarily requiring legal support.

10.123 As discussed in Chapter 7, the right to legal representation was a key rationale for some stakeholders’ support of the existing scheme, while a number of other stakeholders raised concerns about the existing scheme’s reliance on legal representation. In this context, a number of stakeholders considered case management as an integral component of any new scheme’s design.

10.124 Accordingly, this section:

• outlines current case management mechanisms under the VOCAA

• outlines case management in other jurisdictions

• discusses consultation views on case management.

10.125 This part also makes recommendations in relation to how the proposed scheme should incorporate case management.

Current case management under the VOCAA

10.126 While most VOCAT applications are not subject to case management,^[136] and no provision is made for case management under the VOCAA, VOCAT established a specialist Koori List in 2006 which incorporates case management functions.^[137]

10.127 VOCAT has stated that key to the success of the Koori List is the procedural flexibility and informality available under the VOCAA which has enabled the Tribunal to ‘adopt an intensive case-management approach’.^[138] This approach includes:^[139]

• all applications being managed centrally by one person

• the registrar developing a relationship with the applicant/applicant’s legal representative

• communicating early with applicants/applicant’s legal representatives to gain an understanding of the issues involved in the application, communicate the expectations of the Tribunal and anticipate and resolve issues which have the potential to delay applications

• the registrar meeting regularly with Tribunal members determining applications to discuss issues.

10.128 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the Koori List ‘is a best practice example of a tailored process’, which includes, among other things, continuity in the management of each application, with the same magistrate managing an application from start to finish.^[140]

Case management in other jurisdictions

10.129 Case management is a key feature of administrative schemes in other Australian jurisdictions, most notably in Queensland, the Australian Capital Territory and New South Wales.

10.130 The Commission was told that Victim Assist Queensland has three teams of multidisciplinary assessors who use a case management approach. Assessors have both an information gathering role and a decision making role. Victim Assist Queensland told the Commission that key to this process is treating applicants as clients, liaising with victims and their support network, not only to gather evidence for eligibility, but to discuss and understand their financial assistance needs. The Commission was told that a case management approach, where an assessor talks with a victim and acknowledges them during the process, can often be empowering and therapeutic.^[141]

10.131 In the Australian Capital Territory, a similar case management approach is employed. Victim Support ACT employs specialist assessors who consider applications for financial assistance in a ‘beneficial manner’ and adopt a case management approach. The Commission was told that a case management approach is more responsive to the practical needs of victims, who may often require referrals to other supports, and this assists applications to run more smoothly.^[142]

10.132 In New South Wales, because financial assistance is also part of the broader provision of victims’ services, a victim support team case manages victims. This team is made up of case coordinators who, along with providing other referrals and practical supports, assist victims to prepare applications for financial assistance. Unlike in Queensland and the Australian Capital Territory, case management is separated from the assessment function—assessors in another team determine applications for financial assistance independently of the case managers.^[143]

10.133 A case management approach can promote beneficial outcomes for victims, with Holder and Daly observing in relation to the Queensland scheme that:

It is crucial … that scheme administrators see their role as more than that of assessors and managers of funds. By working collaboratively with other survivor services and survivors themselves, scheme administrators and the money they provide can become part of a survivor’s sensitive process of reconstruction.^[144]

Responses

10.134 A number of stakeholders advocated for an administrative model underpinned by a case management approach.^[145] Some stakeholders favoured a case management approach, considering the existing scheme’s reliance on lawyers to be problematic^[146] because:

• Few private lawyers practise in VOCAT matters and community legal centres lack capacity to assist all victims.^[147]

• There is a lack of available lawyers in rural and regional areas.^[148]

• Some lawyers don’t approach the process in a trauma-informed way.^[149]

10.135 For these reasons, some stakeholders considered integration of case management into an administrative scheme’s design as crucial to improving accessibility for victims, including removing administrative and evidentiary burdens from victims.^[150]

10.136 The Commission was told in consultations with scheme managers in other Australian jurisdictions that administrative schemes with in-built case management can reduce reliance on lawyers,^[151] and improve outcomes for victims.^[152] The Commission was also told that reducing reliance on lawyers did not mean victims did not have the right to legal representation.^[153]

10.137 Other stakeholders told the Commission they had concerns about the same agency making both financial assistance determinations and assisting victims with their applications in the absence of independent legal advice.^[154]

Discussion and recommendations

10.138 As will be detailed further in Chapter 17, the Commission has been told that the existing scheme’s application and evidentiary requirements are difficult for victims to navigate without support.^[155] For example, victims of crime told the Commission that following a serious crime, many victims are simply focused on surviving and may be unable to complete even simple forms.^[156]

10.139 Given the issues raised about the difficulties faced by victims navigating the existing scheme on their own, and about accessing legal representation, the Commission considers that the proposed scheme should incorporate case management. In forming this view, the Commission has considered arrangements in other Australian jurisdictions which indicate that case management can reduce reliance on lawyers^[157] as well as improve outcomes for victims.^[158]

10.140 Accordingly, the Commission considers that case management should be provided for under the proposed Act and that case management functions should be part of the proposed expansion of the Office of the Victims of Crime Commissioner, consistent with the recommendation in Chapter 9 that the Victims of Crime Commissioner be supported by appropriately qualified case managers.

10.141 While other jurisdictions’ approaches differ somewhat in their form and structure, as outlined above, the Commission considers a case management approach vital to the efficient and beneficial operation of the proposed scheme, regardless of whether case managers also make financial assistance determinations—as in the Australian Capital Territory and Queensland—or simply support the decision making of independent assessors in a separate team, as in New South Wales. Either approach should aim to reduce administrative burdens for victims, assess their needs holistically and increase their access to the proposed scheme.

10.142 Accordingly, the Commission recommends that the proposed Act specify that case management is an essential component of the proposed scheme, and that case management includes providing assistance to victims, or their representatives, in meeting scheme requirements.

Recommendation

16 The proposed Act should provide that case management is an essential component of the scheme, and that case management includes providing assistance to victims, or their representatives, in meeting scheme requirements.

Legal representation

10.143 As noted above, the supplementary terms of reference ask the Commission to consider how to make it easier for victims to understand all their entitlements and quickly and easily access assistance offered by the scheme without necessarily requiring legal support.

10.144 As discussed in Chapter 7, the right to legal representation was a key rationale for some stakeholders’ support of the existing scheme to ensure victims have an independent advocate during the process, while other stakeholders saw reliance on legal representation as a barrier for some victims. In this regard, the Commission must consider how to reduce reliance on legal representation overall, without also affecting a victim’s right to independent advice and advocacy.

10.145 Accordingly, this part:

• outlines current arrangements for legal representation under the VOCAA

• outlines legal representation in other jurisdictions

• discusses consultation views on legal representation.

10.146 This part also makes recommendations in relation to how the proposed scheme should incorporate legal representation.

Legal representation under the VOCAA

10.147 At VOCAT’s discretion, VOCAT may award a legal practitioner the costs of acting for an applicant.^[159] Under section 48 of the VOCAA, the costs of, and incidental to, all VOCAT proceedings are ‘in the discretion of the Tribunal and it has full power to determine by whom, to whom and to what extent the costs are to be paid’.^[160]

10.148 A legal practitioner acting for an applicant under the VOCAA is not entitled:^[161]

• to recover from the applicant any costs in respect of proceedings before the Tribunal

• to claim a lien in respect of any such costs on any sum payable as assistance under this Act

• to deduct any such costs from any such sum—except to the extent to which the costs have been allowed as between the legal practitioner and the client by the Tribunal on the application of the legal practitioner or of the client

• except as allowed by the Tribunal, to charge for the making of an application to the Tribunal or for appearing on behalf of an applicant.

10.149 The Chief Magistrate has issued a guideline to aid VOCAT’s discretion in awarding legal costs.^[162] The guideline outlines ranges for preparation and appearance fees, which vary according to factors such as the complexity of the application.

10.150 These ranges are outlined in Table 2 below.

Table 2: VOCAT Legal Costs Guideline: Guideline 1 of 2018 (effective 1 January 2018)

10.151 Legal representation significantly impacts the operating expenditure of state-funded financial assistance schemes. For example, in 2016–17, VOCAT awarded $5,628,709 for legal costs.^[163] In their submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria said that a ‘disproportionate component of the [VOCAT] budget [is] spent on legal expenses as a proportion of award payments’.^[164]

Legal representation in other jurisdictions

10.152 Some administrative schemes in Australia still reimburse for legal costs, despite case management being provided as part of the scheme.

10.153 For example, in the Australian Capital Territory, the scheme reimburses lawyers up to $1123 for an application and $2246 for an appeal or review process.^[165] In Queensland, victims may be granted assistance of up to $500 for legal costs.^[166]

10.154 The Commission also notes the experience in New South Wales where the state-funded financial assistance scheme no longer provides reimbursement for legal costs. This has been raised by stakeholders as a barrier, particularly for vulnerable victims, as well as causing issues for lawyers who are still assisting victims with applications to the scheme, but are no longer receiving reimbursement.^[167]

Responses

10.155 There was significant support for any model of state-funded financial assistance to continue to fund legal representation for victims.^[168] Additionally, stakeholders submitted that lawyers should be adequately funded to prepare VOCAT cases.^[169]

10.156 Stakeholders said that access to adequately resourced, culturally safe and specialist legal advice and representation was vital, even if the existing scheme was to be simplified or access improved,^[170] and that all victims should be able to access high-quality legal advice.^[171]

10.157 Springvale Monash Legal Service submitted that legal representation is ‘valuable’ for victims who may be particularly vulnerable.^[172] Schembri & Co Lawyers also submitted that it is unreasonable to expect victims experiencing trauma to prepare and manage an application for financial assistance without legal assistance.^[173]

10.158 Knowmore said that the complex interplay between state-funded financial assistance and other entitlements or schemes, including awards under other redress schemes, necessitates legal representation to ensure survivors are appropriately advised about factors that may affect entitlements under respective schemes.^[174]

10.159 The Aboriginal Family Violence Prevention & Legal Service Victoria submitted that complexity aside, many self-represented victims often become emotionally drained and overwhelmed without an advocate, particularly Aboriginal victims of crime.^[175]

10.160 Some stakeholders considered that legal practitioners were better equipped than case managers to identify evidentiary or eligibility issues^[176] and that victims need a lawyer to ensure that their full entitlements are obtained.^[177] For example, Dr Kate Seear et al submitted that due to the nature and range of the issues, victims’ rights might be jeopardised without adequate legal advice and representation.^[178]

10.161 Ryan Carlisle Thomas Lawyers submitted that lawyers assist victims with the application form, explain the process and help victims to navigate the frequent requests for documentary evidence.^[179] The Commission was also told that while the VOCAT process can appear easy at first, if an application hits a ‘roadblock’ it can be difficult to overcome this without a lawyer.^[180] The Commission was also told that there are certain types of matters where legal assistance is particularly important, such as applications involving historical offences.^[181]

10.162 Some stakeholders considered lawyers crucial to victims getting ‘better results’,^[182] as well as also being able to assist clients with other legal problems, including intervention orders, child protection, family law, criminal law, fines and Sentencing Act 1991 (Vic) compensation.^[183]

Discussion and recommendations

10.163 While the Commission considers that the proposed scheme’s introduction of case management should reduce overall reliance on lawyers, the Commission also agrees with stakeholder concerns that removing the right to legal representation might not best meet all victims’ needs.

10.164 In forming this view, the Commission notes the experience in New South Wales where the scheme no longer provides reimbursement for legal costs, but understands lawyers are still assisting victims to access the scheme. This has consequences for vulnerable victims, and in particular, for community legal centres which are still assisting victims.

10.165 The Commission agrees that some victims may be particularly vulnerable and require a lawyer to advocate on their behalf. Other victims may already have engaged a lawyer to assist them with other legal processes and it would provide more continuity for them if their lawyer also handled the financial assistance process.

10.166 Accordingly, the Commission considers that the proposed Act should:

• expressly state that in applying for assistance, victims have a right to be represented by a legal practitioner

• provide the scheme decision maker with the discretion to award a legal practitioner the costs of, and incidental to, the making of a victim’s application

• maintain the current prohibition on legal practitioners directly charging victims for the making of an application^[184]

• enable the scheme decision maker to develop publicly available guidelines outlining standard reimbursement costs, similar to the current guidelines published by VOCAT and outlined in Table 2 above, to ensure legal fees represent the reasonable costs of preparing an application, having regard to the assistance provided by case managers under the proposed scheme and the complexity of the application.

10.167 At the same time, the Commission considers that victims without legal representation should not be unfairly disadvantaged. In this regard, the Commission notes other recommendations in this report that aim to address issues of accessibility, including accessibility for victims who do not have a lawyer.^[185] The Commission considers these proposals for reform should help to improve access for victims who do not wish, or are unable, to retain a lawyer while at the same time, ensuring victims’ right to legal representation is maintained.

Recommendation

17 The proposed Act should provide that:

(a) in applying for assistance victims have a right to be represented by a legal practitioner

(b) a legal practitioner is not entitled to recover from the applicant any costs in respect of a victim’s application for assistance

(c) the scheme decision maker may award a legal practitioner the reasonable legal costs of, and incidental to, a victim’s application for assistance

(d) to assist the scheme decision maker in determining awards for legal costs, guidelines should be developed and be publicly available.

Restorative justice

10.168 The supplementary terms of reference ask the Commission to consider how a state-funded financial assistance scheme could maximise therapeutic effects for victims.

10.169 Accordingly, in its supplementary consultation paper, the Commission sought community and stakeholder views on whether restorative justice practices should be a voluntary component of a state-funded financial assistance scheme, or whether a state-funded financial assistance scheme should provide a more direct pathway to restorative justice practices managed elsewhere in the justice system.

10.170 This section:

• outlines the current restorative justice context in Victoria

• considers stakeholder views in relation to restorative justice as a possible component of a state-funded financial assistance scheme

• makes recommendations in relation to restorative justice under the proposed scheme.

Restorative justice—the Victorian context

10.171 Some academics have noted that a ‘precise definition of restorative justice is elusive’^[186] and therefore, that restorative justice may be best understood as an ‘umbrella under which a variety of practices and processes sit’.^[187] Restorative justice practices or processes may include:^[188]

• facilitated meetings between offenders and victims

• family conferences

• community circle sentencing.

10.172 Restorative justice initiatives focus on fairness, restoration, healing, accountability, responsibility and reparation.^[189]

10.173 Some restorative justice practices are complementary to the criminal justice processes (occurring before, alongside or following traditional justice processes), while others are alternative pathways to justice.^[190]

10.174 In most restorative justice practices or processes, there is typically an encounter between the victim and the offender. However, not all restorative justice practices require this.^[191]

10.175 In Victoria, there are a range of restorative justice initiatives available to victims including:

• Youth justice group conferencing for young offenders: Youth Justice Group Conferencing facilitates a meeting between the child and other persons including, if they wish, the victim or their representative, and members of the child’s family.^[192]

• The Neighbourhood Justice Centre: The Neighbourhood Justice Centre is Australia’s only community justice court and uses a range of therapeutic and problem solving practices.^[193]

• RMIT Centre for Innovative Justice—pilot restorative justice conferencing program for serious driving offences: The program ‘supports the person harmed/the victim to talk with the person responsible for the harm/the offender’ in cases where someone has been seriously injured or died.^[194]

• Department of Justice and Regulation—Family Violence Restorative Justice Service: As part of the reform agenda arising from the Victorian Royal Commission into Family Violence, the Family Violence Restorative Justice Service will deliver trauma informed restorative justice services to victim survivors of family violence.^[195]

Responses

10.176 Although, as outlined above, restorative justice may be best conceived as an umbrella term that refers to a broad range of practices which attempt to repair the harm caused by crime,^[196] a number of stakeholders cautioned against a state-funded financial assistance scheme being ‘too inspired’ by restorative justice, given restorative justice may often involve the perpetrator.^[197] For that reason, some stakeholders said that restorative justice practices should not be tied to the state-funded financial assistance scheme.^[198]

10.177 On the other hand, some stakeholders considered that VOCAT or the proposed scheme should provide an opportunity for victims to participate in restorative justice practices provided the situation was appropriate.^[199]

10.178 Safe steps Family Violence Response Centre submitted that applicants should have the option to participate in a restorative justice process provided it was entirely voluntary.^[200] Similarly, other stakeholders considered that the state-funded financial assistance scheme should provide referrals, or pathways, to restorative justice practices.^[201] For example, Jesuit Social Services submitted:

restorative justice shouldn’t be automatically part of the VOCAT process given most victims want financial assistance dealt with quickly. In principle, victims should have access to financial assistance regardless of whether they wish to participate in a restorative justice conference or not.^[202]

10.179 Some stakeholders warned that restorative justice may not be appropriate for all victim cohorts. Knowmore submitted that there are significant barriers to adopting a restorative justice approach in institutional child sexual abuse matters.^[203] Challenges and dangers include the complex power dynamics and seriousness of child sexual abuse matters, as well as both victims’ and perpetrators’ potential unwillingness to participate in restorative justice processes.^[204]

10.180 Other stakeholders considered an administrative model of state-funded financial assistance, as opposed to a court or tribunal model, as inherently restorative and so already a restorative justice practice in itself. The ACT Victims of Crime Commissioner told the Commission that administratively based schemes are more akin to restorative justice processes because unlike a court, administrative schemes enter into a relationship with an applicant.^[205] Similarly, Domestic Violence Victoria saw administrative schemes using a symbolic hearing as employing principles of transitional and restorative justice.^[206] The Victim Survivors’ Advisory Council submitted that a new model would better meet the needs of victims if it had a restorative justice framework without a judicial underpinning.^[207]

10.181 RMIT Centre for Innovative Justice submitted that VOCAT could be a ‘doorway through which access to restorative justice conferencing is facilitated’.^[208] At the same time, RMIT Centre for Innovative Justice submitted that it is equally important to make the entire process restorative:

In order to create a victim-centred, restorative experience for victims … VOCAT needs to undergo a transformation whereby everyone – from counter staff to Magistrates – commits to using restorative principles in every interaction …^[209]

10.182 The VOCAT, Magistrates’ Court of Victoria and the Children’s Court of Victoria submission proposed that consideration be given to VOCAT Tribunal members’ involvement in a panel that could hear victims’ justice system experiences as part of a reformed VOCAT.^[210]

Discussion and recommendations

10.183 Most stakeholders, while supportive of restorative justice more generally, emphasised the need for participation in these programs to be voluntary, supporting an approach where VOCAT or the proposed scheme facilitated referrals to restorative justice programs, rather than such programs being embedded within the scheme.

10.184 Noting that research emphasises the need for restorative justice to be, among other things, voluntary, safe, neutral and independent,^[211] the Commission considers that the proposed new Act should enable the proposed scheme to facilitate referrals to appropriate restorative justice initiatives or programs, but that these initiatives should not form part of the scheme itself.

10.185 The Commission considers that the proposed Act and scheme would necessarily be focused on a beneficial outcome for the victim and would therefore not be appropriately independent for the purposes of conducting a ‘neutral’ restorative justice program. As there would undoubtedly be some victims who would benefit from the proposed scheme facilitating referrals and providing pathways to restorative justice, the Commission considers that the proposed Act should provide for this.

10.186 This would ensure that the above requirements—including that the restorative justice processes be safe, independent and neutral—are met through an appropriate third-party organisation with specific expertise in conducting such practices, while ensuring victims are still advised of these opportunities by the proposed scheme where appropriate.

Recommendation

18 The proposed Act should provide that the scheme decision maker may, where requested by a victim, refer the victim to appropriate restorative justice initiatives.

Specialisation

10.187 As noted in Chapter 8, a key rationale for adopting an administrative model with an independent and dedicated decision maker was the opportunity for increased specialisation.

10.188 Accordingly, this section considers:

• current mechanisms for specialisation under the existing scheme

• stakeholder and community views on specialisation

• mechanisms for specialisation under the proposed scheme.

Current mechanisms for specialisation under the VOCAA

10.189 In 2006, VOCAT established a specialist Koori List which is now a permanent part of VOCAT operations. The list was created to ensure that the purpose and objectives of the VOCAA could be achieved for Koori applicants.^[212]

10.190 The Koori List does not apply any different legal considerations. All determinations are made within the framework of the VOCAA. However, the list enables VOCAT to be more responsive to the circumstances of Koori victims of crime.^[213]

10.191 VOCAT has stated that key to the success of the Koori List is the procedural flexibility and informality available under the VOCAA which enables the Tribunal to be responsive to applicants’ circumstances.^[214] This may involve sitting at the bar table to hear participants, instead of at the bench, adopting a more informal approach and receiving culturally specific information from community representatives.^[215]

10.192 The Commission’s supplementary consultation paper sought community and stakeholder views on whether a reformed VOCAT could have separate VOCAT streams or lists, following a similar approach to the VOCAT Koori List.

Responses

10.193 Specialisation was raised by a number of stakeholders as an important component of any model of state-funded financial assistance. In particular, stakeholders spoke about specialisation in three broad ways:

• State-funded financial assistance decision makers should be dedicated positions, thus ensuring specialisation.

• State-funded financial assistance decision makers should be appropriately trained to enhance specialisation.

• The state-funded financial assistance scheme should enable specialisation within the scheme—for example, through specialist lists or streams.

10.194 Stakeholders also provided more specific comment on the current operation of the VOCAT Koori List.

10.195 Each of these matters relating to specialisation is discussed further below.

Dedicated decision maker

10.196 In the context of the existing VOCAT model, a number of stakeholders said that only dedicated and specialised magistrates should preside over VOCAT matters^[216] and that such magistrates should elect to be Tribunal members.^[217]

10.197 The Children’s Court of Victoria told the Commission that a dedicated approach leads to more consistent decision making and can enhance opportunities for victim acknowledgment through more developed and specialised ‘court craft’.^[218]

Training

10.198 To support specialisation, a number of stakeholders highlighted the need for decision makers to be appropriately trained. For example, victim representatives of the Victims of Crime Consultative Committee told the Commission that all victim support, including financial assistance, needed to be provided by trained, specialist professionals who recognise and understand trauma.^[219]

10.199 The need for trained decision makers was also raised by a number of other stakeholders,^[220] including the Victorian Council of Social Service which submitted in relation to the existing model:

The quality of interactions with the justice system is crucial in helping people heal and recover, and preventing further traumatisation. The way a VOCAT hearing is conducted can have significant positive or negative effects on a person. VOCAT members should receive regular training on family violence, trauma-informed care and working with victims of crime. ^[221]

10.200 Similarly, other stakeholders told the Commission that VOCAT members need to be more trauma-informed and as such, need victim training.^[222] The Law Institute of Victoria advocated for all magistrates in the VOCAT jurisdiction to undertake victim training.^[223]

10.201 Safe steps Family Violence Response Centre emphasised the findings of the Royal Commission into Family Violence, submitting that only specially trained professionals should work with victims of family violence.^[224]

10.202 In addition, the Victorian Aboriginal Legal Service submitted that the therapeutic nature of VOCAT needs to be enhanced, particularly with respect to cultural awareness and engaging with Aboriginal victims’ culture and history, including how to deal with intergenerational trauma.^[225] This view was also held by the Aboriginal Family Violence Prevention & Legal Service Victoria, who advocated for all decision makers and staff to undertake mandatory cultural awareness training, particularly in relation to barriers faced by Aboriginal victims of family violence.^[226]

10.203 While most stakeholders supported training to ensure that decision makers are trauma-informed and understand the complexities of issues such as family violence and sexual assault, ^[227] some noted that specialised training would also improve the consistency of decision making.^[228] In this context, the Commission was told that training of assessors under the NSW scheme includes training in relation not only to victims of crime generally, but also to sexual assault, family violence, trauma-informed practice and therapeutic jurisprudence.^[229]

Specialist lists

10.204 Some stakeholders supported the introduction of specialist lists, similar to the VOCAT Koori List, for particular cohorts of victims, such as family violence or sexual assault.^[230] A number of stakeholders told the Commission that consistency in decision making under the existing scheme would be improved through increased specialisation of tribunal members. ^[231]

10.205 As detailed in Chapter 8, a key element of the proposal by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria for a reformed VOCAT was for a more specialised approach, using the VOCAT Koori List as a best practice example.^[232] VOCAT, the Magistrates’ Court of Victoria and Children’s Court of Victoria submitted that such specialisation would provide VOCAT with the capacity to simultaneously improve VOCAT’s therapeutic outcomes and its consistency in decision making, as well as yield cost savings and efficiency gains.^[233]

10.206 The specialisation envisaged by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria in their joint submission includes a smaller pool of dedicated VOCAT magistrates supported by specialised judicial registrars and administrative staff, with further specialisation within this pool, for example, specialisation in family violence to enhance integration with specialist family violence courts.^[234]

10.207 The joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted VOCAT’s Koori List as a best practice example of a tailored process, stating this specialised approach is highly applicable and transferable to VOCAT’s operation more broadly and would likely also be of benefit to other victim groups.^[235]

10.208 Stakeholder views in relation to the VOCAT Koori List were mixed. The Victorian Aboriginal Legal Service (VALS) provided a case study example of how the Koori List enables VOCAT members to conduct VOCAT hearings in a culturally sensitive way, for example, by using accessible language, acknowledging the traditional owners of the land and observing Aboriginal and Torres Straight Island customs, such as conducting a smoking ceremony. VALS described how such practices can provide a safe space for Aboriginal people and therefore improve engagement by Aboriginal people with the scheme.^[236]

10.209 VALS also submitted that:

In our experience, whilst members are aware that they should engage with an Aboriginal victim’s culture and history, they may not be aware of how to do this appropriately. Such engagement often takes the form of questions that are at best confusing, and at worst insulting. It can also create an atmosphere of distrust, where the Aboriginal victim does not believe that the Member has their interests at heart.^[237]

10.210 The Aboriginal Family Violence Prevention & Legal Service Victoria submitted that developments like the Koori VOCAT List are positive steps toward breaking down barriers and making VOCAT more accessible for Aboriginal victims of family violence. The Commission was also told that more investment was needed to strengthen initiatives directed towards improving cultural safety and accessibility of the scheme for Aboriginal people.^[238] For example, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that while they strongly support the aims of the Koori VOCAT List and the efforts made by the Tribunal to date, ‘in recent years a number of our clients’ experiences of the system have not differed markedly from the general administration of the Act’.^[239] The Aboriginal Family Violence Prevention & Legal Service Victoria also submitted that Tribunal members often remain seated at the bench and that aside from providing an acknowledgment of country, matters are often ‘run in a fashion that resembles normal court proceedings, being quite formal and legalistic and held in what is normally used as a criminal court’.^[240]

10.211 Other stakeholders also emphasised the need for proper resourcing, with some legal professionals suggesting the Koori List now has extended delays.^[241] Nonetheless, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that a well-resourced Koori List, or equivalent Aboriginal-specific stream, should be used under any model.^[242]

10.212 The Victorian Council of Social Service also submitted that the Koori List should be retained, particularly as the list has enabled magistrates to develop specialised expertise and more deeply understand Aboriginal victims’ experiences.^[243]

Discussion and recommendations

10.213 As discussed in Chapters 8 and 9, key to the proposed scheme is the establishment of a new independent, dedicated and specialised decision maker. In recommending that the Victims of Crime Commissioner’s powers and functions be expanded to include administering the proposed scheme, the Commission noted in Chapter 9 that the Victims of Crime Commissioner’s position is already established as an independent statutory appointment dedicated to, and specialising in, victims’ advocacy and support.

10.214 Accordingly, the Commission considers that the dedicated nature of the proposed new decision maker should improve specialisation under the proposed scheme. In the Commission’s view, there are also two further opportunities to enhance specialisation under the proposed scheme:

• training for the decision maker and support staff

• establishment of specialised case management/assessment teams.

Training

10.215 Many stakeholders noted the importance of appropriate training for state-funded financial assistance decision makers. Stakeholders in particular highlighted the need for training in relation to:

• recognising and understanding trauma^[244]

• family violence^[245]

• trauma-informed care^[246]

• working with victims of crime^[247]

• cultural awareness and engaging with Aboriginal victims’ culture and history, including how to deal with intergenerational trauma.^[248]

10.216 The Commission was told that training of assessors under the NSW administrative scheme includes training in relation to victims of crime generally, sexual assault, family violence, trauma-informed practice and therapeutic jurisprudence.^[249]

10.217 The recent report of the Senate Community Affairs Legislation Committee in relation to the proposed Commonwealth Redress Scheme also emphasised the importance of training for redress scheme staff to avoid re-traumatisation of victims.^[250] Areas of training noted in the report included cultural awareness training, disability awareness training and trauma-informed sensitivity training, including training in relation to stress responses and issues of power and control.^[251]

10.218 The Commission notes that a number of organisations provide training programs for professionals working directly with victims of crime. The Australian Childhood Foundation provides training, workshops and seminars in relation to trauma.^[252] A number of centres against sexual assault in Victoria also provide training, including training in relation to responding to sexual assault, working with families impacted by sexual assault, the counselling needs of adult survivors of child sexual assault and re-traumatisation.^[253] The Domestic Violence Resource Centre delivers specialist family violence training to a range of community and government organisations.^[254] The Victorian Aboriginal Community Controlled Health Organisation Inc is a registered training organisation that provides education and training in relation to Aboriginal culture, knowledge and spirituality.^[255]

10.219 In the Commission’s view, one of the key benefits of transitioning to an administrative model of financial assistance would be the ability for the proposed scheme decision maker to create a culture of specialisation, requiring all scheme staff to undertake mandatory minimum training. Such training, whether provided in-house or through accredited training providers such as those outlined above, would ensure the proposed scheme’s staff had the requisite skills to adopt a beneficial approach. All scheme staff should be required to perform their role in a trauma-informed way that aims to affirm victims’ experiences, while minimising interactions or processes that could increase victims’ trauma.

10.220 Accordingly, the Commission considers that such training should, as a minimum, include training in relation to:

• relevant Victorian legislation such as the Victims’ Charter Act 2006 (Vic), Sentencing Act 1991 (Vic), Victims of Crime Commissioner Act 2015 (Vic) and the proposed new state-funded financial assistance Act

• victim support and advocacy services provided by government as well as by government-funded or peak community organisations in Victoria

• victims of crime generally, as well as sexual assault, family violence and trauma-informed practice, as undertaken by assessors in the NSW scheme^[256]

• working with diverse communities including Aboriginal communities, diverse cultural, linguistic and faith communities, people with a disability, people experiencing mental health issues, older people and those who identify as LGBTIQ.^[257]

10.221 In the Commission’s view, the proposed scheme should also consider minimum training and education requirements for staff interacting with applicants to the scheme consistent with the legislated functions of scheme staff, and levels of responsibility.

10.222 The Commission considers that all scheme staff should be required to undertake appropriate training, as determined by the scheme’s decision maker. Such training should underpin a beneficial approach informed by trauma-informed practices so as to affirm victims’ experiences and minimise interactions or processes that could increase victims’ trauma.

Specialisation

The VOCAT Koori List

10.223 The Commission notes that the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria highlights VOCAT’s Koori List as a best practice example of a tailored process for a particular victim group.^[258]

10.224 In 2010, a review of the VOCAT Koori List Pilot noted that the list:

was originally set-up as a two-year pilot project but, due to its success, will continue as an ongoing part of the Tribunal’s operations. The List provides an administrative framework for managing applications by Koori victims of crime; applications are still determined according to the legislative requirements set out in the VOCA Act. What the List does do, however, is direct the Tribunal to promote flexible practices in relation to applications by Koori applicants.^[259]

10.225 As noted above, stakeholder views in relation to VOCAT’s Koori List are mixed. While some stakeholders noted that the Koori List enables VOCAT members to conduct VOCAT hearings in a culturally sensitive way, providing a safe space for Aboriginal people to engage with VOCAT,^[260] other stakeholders raised concerns about the current operation of the Koori List.

10.226 Despite some stakeholder concerns about the current operation of the VOCAT Koori List, in the Commission’s view, a number of the specialist and case management techniques employed in the VOCAT Koori List are complementary to the proposed scheme’s case management approach, including:^[261]

• the registrar developing a relationship with the applicant/applicant’s legal representative

• communicating early with applicants and/or applicant’s legal representatives to gain an understanding of the issues involved in the application, communicate the expectations of the Tribunal and anticipate and resolve issues which have the potential to delay applications

• the registrar meeting regularly with Tribunal members determining applications to discuss issues.

10.227 While some stakeholders raised concerns about the current operation of VOCAT, a number of stakeholders also supported retention of VOCAT’s Koori List—or an equivalent specialist approach—due to it representing a positive step toward breaking down barriers and making VOCAT more accessible.^[262] A number of stakeholders also highlighted the need for more investment in such specialisation, to strengthen cultural safety and accessibility of the scheme for Aboriginal people. For example, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that a well-resourced Koori List, or equivalent Aboriginal-specific stream, should be employed under any proposed new scheme.^[263] The Victorian Council of Social Service also submitted that the Koori List should be retained, particularly as the list has enabled magistrates to develop specialised expertise and more deeply understand Aboriginal victims’ experiences.^[264]

10.228 The Commission recognises the progress made in improving cultural safety for Aboriginal victims of crime, while at the same time noting concerns raised by some stakeholders about the current operation of the VOCAT Koori List. The Commission considers that, consistent with Department of Justice and Regulation’s Yarrwul Loitjba Yapaneyepuk—Walk the Talk Together: Koori Inclusion Action Plan, which commits to partnering with the Koori community to inform and shape decision making,^[265] the proposed scheme should:

• consult with Aboriginal communities about the strengths and weaknesses of the approach under the VOCAT Koori List, including processes and practices that worked well and should be adopted by the proposed scheme

• following consultation with key stakeholders, establish a specialist approach to managing applications to the proposed scheme by Aboriginal victims of crime, adopting culturally appropriate practices.

10.229 Specialist approaches, and the Commission’s recommendations in relation to specialisation under the proposed scheme are discussed further below.

Further specialisation under the proposed scheme

10.230 As noted above, and irrespective of model, a number of stakeholders supported the establishment of specialist lists for victims with particular needs, such as family violence or sexual assault victims.^[266]

10.231 There is also evidence indicating specialisation can improve outcomes for victims of crime. For example, as noted by the Australian Law Reform Commission, specialisation in relation to family violence can help ensure that victims have contact with staff who understand the nature, features and dynamics of family violence.^[267]

10.232 In addition, the Commission notes the Australian Law Reform Commission’s observation that specialisation can improve consistency and efficiency in the interpretation and application of laws as a result of shared understandings and the experience of a smaller number of decision makers:

Specialists can identify and solve problems more quickly and effectively and can develop and promote best practice that can then be mainstreamed to drive change in the system more generally. ^[268]

10.233 The Commission is of the view that there is merit to enabling specialisation within the proposed scheme, in both case management and decision making. This is because, under the proposed Act, decision makers will be required to take into account the unique characteristics of particular victims and/or crime types.^[269]

10.234 In the Commission’s view, specialisation within the proposed scheme will:

• enable the proposed scheme’s staff and decision makers to apply the proposed Act more efficiently and consistently

• ensure victims who have contact with the proposed scheme come into contact with staff with a better understanding of the nature, features and dynamics of particular crimes

• improve the proposed scheme’s ability to better identify and respond to increased vulnerability and intersectional factors, for example the overlapping forms of marginalisation that might occur where a person with a disability experiences family violence.^[270]

Recommendation

19 The proposed Act should provide for the establishment of specialised case management and decision making.

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

   ↑

2. Ibid s 34. As discussed further below, victims can also elect to have a matter heard at a hearing but this is not legislatively prescribed as a forum for victim recognition and as such, the decision making framework underpinning these hearings still applies.

   ↑

3. Victims of Crime Assistance Act 1996 (Vic) s 38, although section 38 (1)(a) also states that the Tribunal is not required to conduct itself in a formal manner.

   ↑

4. Ibid s 35(1).

   ↑

5. VOCAT has issued a practice direction in relation to notification of alleged offenders and other third parties: Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties (11 December 2008).

   ↑

6. Victims of Crime Assistance Act 1996 (Vic) s 33(1). Victims are able to opt-out of hearings at the application stage by ticking a box on the application form. This occurs in approximately 85 per cent of VOCAT matters. In this sense, having a decision made ‘on the papers’ is considered the default practice, so where a victim wishes to attend a hearing, this is in practical terms considered to be a victim ‘requesting’ a hearing.

   ↑

7. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

   ↑

8. See, eg, Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 120. See also J D W E Mulder, Compensation: The Victim’s Perspective (Wolf Legal Publishers, 2013) 68, where 83% of victims surveyed after receiving assistance from the Dutch Crime Compensation Fund said that receiving an award acknowledged their victimisation.

   ↑

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

   ↑

10. Ibid s 8A.

    ↑

11. Ibid s 13(2)(c).

    ↑

12. For further discussion, see Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 186.

    ↑

13. These broad provisions relate to a victim’s character or behaviour ‘at any time’: Victims of Crime Assistance Act 1996 (Vic) s 54.

    ↑

14. [2011] VCAT 2429 (21 December 2011).

    ↑

15. Ibid [24]–[26]. This is further discussed in Chapter 15 in relation to case law interpretation of section 54 of the VOCAA, which relates to VOCAT’s consideration of an applicant’s character, behaviour and conduct.

    ↑

16. [2016] VCAT 367 (10 March 2016).

    ↑

17. Ibid [18] citing Justice Ginnane in Meinderts v Victims of Crime Assistance Tribunal [2011] VCAT 1831 (24 October 2011) [32]. 

    ↑

18. For further discussion in relation to ‘deserving victims’, see David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Studies 242, 258. This is also discussed in Chapters 10 and 14 in relation to the purpose and objectives of the VOCAA and sections 52 and 54 of the VOCAA.

    ↑

19. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 28(1).

    ↑

20. Victims Services, Department of Justice (NSW) Financial Support (2017) <www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_financial_support/vs_recognitionpayment.aspx>.

    ↑

21. Queensland Government, How We Assess Your Application (2017) <www.qld.gov.au/law/crime-and-police/victims-and-witnesses-of-crime/financial-assistance/processing-of-your-application>.

    ↑

22. See, eg, section 90 of the Victims of Crime Assistance Act 2009 (Qld) which provides that if the decision maker decides to grant assistance, they must provide the applicant with the reasons for the decision, with reference to ‘statement of reasons’.

    ↑

23. Consultation 1 (Victim Assist Queensland).

    ↑

24. Victims Rights and Support Act 2013 (NSW) s 43(4).

    ↑

25. Consultations 1 (Victim Assist Queensland), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

    ↑

26. The Inquiry established a holistic process of support for victims to ensure they were given all available support and information necessary to participate in the Inquiry and following their involvement in the Inquiry: 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 (2013) Volume 1 of 2, 32.

    ↑

27. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Private Sessions (2017) vol 5, 9. See also Royal Commissions Act 1902 (Cth) s 60B.

    ↑

28. Ibid 33. See also Royal Commissions Act 1902 (Cth) s 60C.

    ↑

29. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Private Sessions (2017) vol 5, 33.

    ↑

30. Royal Commissions Act 1902 (Cth) s 60E.

    ↑

31. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Private Sessions (2017) vol 5, 9.

    ↑

32. Carolyn Ford, ‘Commission of Care’ (2018) 92(1/2) Law Institute Journal 20, 20.

    ↑

33. Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse: Our Inquiry (2017) vol 1, 28.

    ↑

34. Ibid.

    ↑

35. Carolyn Ford, ‘Commission of Care’ (2018) 92(1/2) Law Institute Journal 20, 20.

    ↑

36. Ibid.

    ↑

37. Ibid.

    ↑

38. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Private Sessions (2017) vol 5, 33.

    ↑

39. For general discussion of state apologies, see Janna Thompson, ‘Apology, Justice and Respect: A Critical Defence of Political Apology’ (Paper presented at Australian Association for Professional and Applied Ethics 12th Annual Conference, Adelaide, 28–30 September 2005).

    ↑

40. In Victoria, hearings may also be held if VOCAT requires: Victims of Crime Assistance Act 1996 (Vic) s 34(1). See also Part 6 of the VOCAT Application for Assistance Form which asks the applicant to nominate whether they would prefer to attend a hearing at the Tribunal or to have their application determined in their absence.

    ↑

41. Victims of Crime Assistance Act 1996 (Vic) s 38(1)(a)–(b).

    ↑

42. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 8.

    ↑

43. See, eg, submission 28 (South Metropolitan Integrated Family Violence Executive). Apologies to victims during the VOCAT process were also raised in Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 31.

    ↑

44. Consultation 27 (Victim Survivors’ Advisory Council).

    ↑

45. Academic literature does not use uniform terminology to refer to state apologies. For example, they may be called ‘public’ apologies, ‘political’ apologies and ‘official public apologies’. Most recently, the Prime Minister of Australia referred to the proposed apology to victims of child sexual abuse as a proposed ‘national apology’: Prime Minister of Australia, Statement on the Royal Commission into Institutional Responses to Child Sexual Abuse (2018) <www.pm.gov.au/media/statement-royal-commission-institutional-responses-child-sexual-abuse>. For general discussion, see International Center for Transitional Justice, More than Words: Apologies as a Form of Reparation (2015) 1; Cheryl Regehr and Thomas Gutheil, ‘Apology, Justice, and Trauma Recovery’ (2002) 30 The Journal of the American Academy of Psychiatry and the Law 425; Janna Thompson, ‘Apology, Justice and Respect: A Critical Defence of Political Apology’ (Paper presented at Australian Association for Professional and Applied Ethics 12th Annual Conference, Adelaide, 28–30 September 2005) 10.

    ↑

46. Consultation 27 (Victim Survivors’ Advisory Council).

    ↑

47. International Center for Transitional Justice, More than Words: Apologies as a Form of Reparation (2015) 1; Janna Thompson, ‘Apology, Justice and Respect: A Critical Defence of Political Apology’ (Paper presented at Australian Association for Professional and Applied Ethics 12th Annual Conference, Adelaide, 28–30 September 2005) 1.

    ↑

48. Australian Government, Apology to Australia’s Indigenous Peoples (2008) <www.australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigenous-peoples>.

    ↑

49. Prime Minister of Australia, Statement on the Royal Commission into Institutional Responses to Child Sexual Abuse (2018) <www.pm.gov.au/media/statement-royal-commission-institutional-responses-child-sexual-abuse>.

    ↑

50. Cheryl Regehr and Thomas Gutheil, ‘Apology, Justice, and Trauma Recovery’ (2002) 30 The Journal of the American Academy of Psychiatry and the Law 425, 425.

    ↑

51. Ibid 426.

    ↑

52. International Center for Transitional Justice, More than Words: Apologies as a Form of Reparation (2015) 1.

    ↑

53. Janna Thompson, ‘Apology, Justice and Respect: A Critical Defence of Political Apology’ (Paper presented at Australian Association for Professional and Applied Ethics 12th Annual Conference, Adelaide, 28–30 September 2005) 10.

    ↑

54. International Center for Transitional Justice, More than Words: Apologies as a Form of Reparation (2015) 4.

    ↑

55. Kathleen Daly, ‘Money for Justice? Money’s Meaning and Purpose as Redress for Historical Institutional Abuse’ in Mark Finnane, Amanda Kaladelfos and Yorick Smaal (eds), The Sexual Abuse of Children: Recognition and Redress (Monash University Publishing, 2016) 160, 164.

    ↑

56. Consultations 2 (Legal Professionals—Private Practice), 6 (Victims’ Advocacy Organisations), 7 (Family Violence and Advocacy Organisations), 10 (Regional Consultation—Morwell Victim Support Agencies), 20 (Academics), 27 (Victim Survivors’ Advisory Council).

    ↑

57. Submissions 25 (Public Health Association of Australia), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre).

    ↑

58. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

59. Consultation 27 (Victim Survivors’ Advisory Council).

    ↑

60. Submission 37 (safe steps Family Violence Response Centre).

    ↑

61. Submission 49 (Victims of Crime Commissioner, Victoria); Consultation 5 (Victims of Crime Commissioner, Victoria).

    ↑

62. Consultation 27 (Victim Survivors’ Advisory Council). In this context, the Victim Survivors’ Advisory Council is referring to the ‘imbalance’ of the criminal justice system which generally focuses on the prosecution, acting as the state’s representative, and the accused, rather than on victims of crime. See, eg, Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 14–15, 19.

    ↑

63. Victims of Crime Assistance Act 1996 (Vic) s 35.

    ↑

64. Submission 20 (Office of the Victorian Information Commissioner); Consultations 6 (Victims’ Advocacy Organisations), 12 (Regional Consultation—Mildura Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

    ↑

65. Submissions 7 (Dr Kate Seear et al), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

    ↑

66. Submissions 14 (Inner Melbourne Community Legal), 20 (Office of the Victorian Information Commissioner), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 38 (Ryan Carlisle Thomas Lawyers), 46 (Victoria Legal Aid); Consultations 3 (Legal Professionals—Community Legal Centres), 13 (Regional Consultation—Mildura Legal Professionals).

    ↑

67. Submission 26 (Hume Riverina Community Legal Service); Consultation 3 (Legal Professionals—Community Legal Centres).

    ↑

68. Submission 26 (Hume Riverina Community Legal Service); Consultation 3 (Legal Professionals—Community Legal Centres).

    ↑

69. Submissions 14 (Inner Melbourne Community Legal), 18 (cohealth).

    ↑

70. Submission 46 (Victoria Legal Aid).

    ↑

71. Submission 20 (Office of the Victorian Information Commissioner).

    ↑

72. Submission 41 (Springvale Monash Legal Service).

    ↑

73. Submission 14 (Inner Melbourne Community Legal).

    ↑

74. Submission 20 (Office of the Victorian Information Commissioner).

    ↑

75. Submission 41 (Springvale Monash Legal Service).

    ↑

76. Consultations 4 (Victim, Witness and Court Support), 10 (Regional Consultation—Morwell Victim Support Agencies).

    ↑

77. Consultation 20 (Academics).

    ↑

78. Submission 7 (Dr Kate Seear et al).

    ↑

79. Consultation 20 (Academics).

    ↑

80. Submission 13 (Adviceline Injury Lawyers). See also submission 38 (Ryan Carlisle Thomas Lawyers) who submitted that the quantum does not reflect community values, and Submission 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria) which submitted that ‘the amounts currently awarded are nominal and may fall short of fulfilling the intent of special financial assistance as an expression of the community’s sympathy’.

    ↑

81. Submissions 1 (Judicial Advisory Group on Family Violence), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 18 (cohealth), 19 (Schembri & Co Lawyers), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultations 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 16 (Regional Consultation—Ballarat Legal Professionals).

    ↑

82. Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

    ↑

83. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

84. Submission 7 (Dr Kate Seear et al).

    ↑

85. Submission 24 (Darebin Community Legal Centre).

    ↑

86. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

    ↑

87. Submission 7 (Dr Kate Seear et al) in relation to section 1(2)(a) of the Victims of Crime Assistance Act 1996 (Vic).

    ↑

88. Submission 27 (Name withheld).

    ↑

89. Consultations 5 (Victims of Crime Commissioner, Victoria), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

    ↑

90. Consultation 23 (Community Safety Trustee, Victoria).

    ↑

91. Submission 23 (Johnstone & Reimer Lawyers).

    ↑

92. Consultations 3 (Legal Professionals—Community Legal Centres), 10 (Regional Consultation—Morwell Victim Support Agencies).

    ↑

93. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

    ↑

94. Consultation 1 (Victim Assist Queensland).

    ↑

95. Submission 24 (Darebin Community Legal Centre).

    ↑

96. Submissions 28 (South Metropolitan Integrated Family Violence Executive), 31 (Victorian Council of Social Service), 41 (Springvale Monash Legal Service), 47 (RMIT Centre for Innovative Justice), 51 (Law Institute of Victoria); Consultations 16 (Regional Consultation—Ballarat Legal Professionals), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

    ↑

97. Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

    ↑

98. Victims of Crime Assistance Act 1996 (Vic) s 1(b). Note that some victims may also be acknowledged at a VOCAT hearing.

    ↑

99. Submission 51 (Law Institute of Victoria).

    ↑

100. Submission 36 (Name withheld).

     ↑

101. Submission 28 (South Metropolitan Integrated Family Violence Executive).

     ↑

102. Consultation 27 (Victim Survivors’ Advisory Council).

     ↑

103. Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349–53 (Rob Hulls, Attorney-General).

     ↑

104. Consultation 27 (Victim Survivors’ Advisory Council).

     ↑

105. J D W E Mulder, Compensation: The Victim’s Perspective (Wolf Legal Publishers, 2013) 3.

     ↑

106. A survey of recipients receiving assistance from the Dutch Crime Compensation Fund revealed that 83 per cent of victims said that receiving an award acknowledged their victimisation and a further 80 per cent said the award provided them with a sense of justice: J D W E Mulder, Compensation: The Victim’s Perspective (Wolf Legal Publishers, 2013) 68.

     ↑

107. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 32.

     ↑

108. Ibid.

     ↑

109. As discussed further below, because such hearings would be voluntary, they would not be for the purposes of fact finding or making financial assistance determinations.

     ↑

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

     ↑

111. See, eg, Robyn L Holder and Kathleen Daly, ‘Recognition, Reconnection, and Renewal: The Meaning of Money to Sexual Assault Survivors’ (2017) 24(1) International Review of Victimology 25, 39.

     ↑

112. David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 148.

     ↑

113. See also comments by participants in Holder and Daly’s study: ‘They gave me a miserable $10,000 … You divide $10,000 by 50 years, you don’t get much’ and ‘The amount granted was not comparable to what I had lived through’: Robyn L Holder and Kathleen Daly, ‘Recognition, Reconnection, and Renewal: The Meaning of Money to Sexual Assault Survivors’ (2017) 24(1) International Review of Victimology 25, 36.

     ↑

114. This is further discussed in Chapter 15 in relation to case law interpretation of section 54 of the VOCAA, which relates to VOCAT’s consideration of an applicant’s character, behaviour and conduct.

     ↑

115. Submission 7 (Dr Kate Seear et al).

     ↑

116. J D W E Mulder, Compensation: The Victim’s Perspective (Wolf Legal Publishers, 2013) 113.

     ↑

117. Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 122.

     ↑

118. Submissions 28 (South Metropolitan Integrated Family Violence Executive), 31 (Victorian Council of Social Service), 41 (Springvale Monash Legal Service), 47 (Centre for Innovative Justice), 51 (Law Institute of Victoria); Consultations 16 (Regional Consultation—Ballarat Legal Professionals), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

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

     ↑

120. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 8.

     ↑

121. Consultation 27 (Victim Survivors’ Advisory Council).

     ↑

122. Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (Rob Hulls, Attorney-General).

     ↑

123. See Mark Gibney and Erik Roxstrom ‘The Status of State Apologies’ (2001) 23(4) Human Rights Quarterly 911, 914–15; Jeff Corntassel and Cindy Holder ‘Who’s Sorry Now? Government Apologies, Truth Commissions, and Indigenous Self-Determination in Australia, Canada, Guatemala and Peru’ (2008) 9(4) Human Rights Review 465; Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford University Press, 1991).

     ↑

124. (1989) 168 CLR 79. The ‘Longman warning’ required judges to warn the jury about any perceptible risks of miscarriage of justice that a delay in complaint might cause, and was criticised for its potential to ‘perpetuat[e] myths and misconceptions about sexual assault and discriminatory attitudes towards women and children’: Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131 (2017) [28.38]. There have been a range of legislative reforms to the ‘Longman warning’, including amendments to the Crimes Act 1958 (Vic) ss 61(1)–(1F), the Evidence Act 2008 (Vic) s 165B and most recently the Jury Directions Act 2015 (Vic). Section 40 of the Jury Directions Act 2015 (Vic) abolished ‘any rule of common law under which a trial judge is required or permitted to direct the jury on a disadvantage to the accused in challenging, adducing or giving evidence or conducting his or her case because of delay’ which, as explicitly stated at Note 1 of the Jury Directions Act 2015 (Vic), ‘abolishes the rule attributed to Longman v The Queen [1989] HCA 60’. The Jury Directions Act 2015 (Vic), in sections 38–39, now restricts the circumstances in which a judge might direct the jury in relation to ‘significant forensic disadvantage’ and the provisions have been considered in the recent cases of Robbins v The Queen [2017] VSCA 288 and Mulligan v The Queen [2017] VSCA 94 (2 May 2017).

     ↑

125. Consultations 3 (Legal Professionals—Community Legal Centres), 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

126. Janna Thompson, ‘Apology, Justice and Respect: A Critical Defence of Political Apology’ (Paper presented at Australian Association for Professional and Applied Ethics 12th Annual Conference, Adelaide, 28–30 September 2005) 11; Cheryl Regehr and Thomas Gutheil, ‘Apology, Justice, and Trauma Recovery’ (2002) 30 The Journal of the American Academy of Psychiatry and the Law 425, 426.

     ↑

127. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology, 1999) 71.

     ↑

128. Chapter 9 made recommendations in relation to the proposed scheme decision maker being able to delegate victim conferences only to deputy decision makers, not other staff under the proposed scheme.

     ↑

129. Submission 5 (Anglicare Victoria Victims Assistance Program). See also submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 16 (Regional Consultation with Support Agencies—Ballarat).

     ↑

130. Royal Commissions Act 1902 (Cth) ss 60C, 60E.

     ↑

131. The circumstances in which application materials, including any materials relating to a victim conference, may be used, inspected or published are discussed in detail in Chapter 14 of this report.

     ↑

132. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Private Sessions (2017) vol 5, 35.

     ↑

133. Ibid 33.

     ↑

134. Amanda George and Bridget Harris, Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria (Deakin University School of Law’s Centre for Rural and Regional Law and Justice, 2014) 76.

     ↑

135. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 28.

     ↑

136. This is acknowledged by the Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria in their joint submission (submission 59), which proposes case management as part of a reformed VOCAT model.

     ↑

137. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 15–16.

     ↑

138. Ibid 3.

     ↑

139. Ibid 15–16.

     ↑

140. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

141. Consultation 1 (Victim Assist Queensland).

     ↑

142. Consultation 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

143. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

144. Robyn L Holder and Kathleen Daly, ‘Recognition, Reconnection, and Renewal: The Meaning of Money to Sexual Assault Survivors’ (2017) 24(1) International Review of Victimology 25, 42.

     ↑

145. Submissions 25 (Public Health Association of Australia), 29 (Domestic Violence Victoria and Women’s Legal Service Victoria), 37 (safe steps Family Violence Response Centre).

     ↑

146. Submission 31 (Victorian Council of Social Service); Consultations 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 27 (Victim Survivors’ Advisory Council).

     ↑

147. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 43 (knowmore), 51 (Law Institute of Victoria).

     ↑

148. Submission 31 (Victorian Council of Social Service).

     ↑

149. Consultation 4 (Victim, Witness and Court Support).

     ↑

150. Submissions 18 (cohealth), 27 (Name withheld), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre).

     ↑

151. Consultation 1 (Victim Assist Queensland).

     ↑

152. Consultations 1 (Victim Assist Queensland), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

153. Ibid.

     ↑

154. Submissions 42 (Joint Submission Springvale Monash Legal Service et al), 43 (knowmore).

     ↑

155. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultations 6 (Victims’ Advocacy Organisations), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 15 (Regional Consultation—Ballarat Victim Support Agencies), 23 (Community Safety Trustee, Victoria).

     ↑

156. Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

     ↑

157. Consultation 1 (Victim Assist Queensland).

     ↑

158. Consultations 1 (Victim Assist Queensland), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

159. Victims of Crime Assistance Act 1996 (Vic) s 48.

     ↑

160. Ibid s 48(1).

     ↑

161. Ibid s 48(4).

     ↑

162. Victims of Crime Assistance Tribunal, Cost Guideline (Legal Costs), Guideline 1 of 2018 (29 December 2017) <www.vocat.vic.gov.au/vocat-guideline-1-2018-cost-guideline-legal-costs>.

     ↑

163. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 56.

     ↑

164. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

165. Victims of Crime (Financial Assistance) Regulation 2016 (ACT) reg 12.

     ↑

166. Victims of Crime Assistance Act 2009 (Qld) s 38(2).

     ↑

167. The NSW scheme is currently subject to a legislative review. Submissions to this review raised concerns regarding the removal of funded legal representation under the scheme. See, eg, Community Legal Centres NSW, Submission to New South Wales Department of Justice, Review of the Victims Rights and Support Act, 29 July 2016, 23. As at 28 May 2018, the review had not been finalised.

     ↑

168. Submissions 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

169. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

     ↑

170. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

171. Submission 51 (Law Institute of Victoria).

     ↑

172. Submission 41 (Springvale Monash Legal Service).

     ↑

173. Submission 19 (Schembri & Co Lawyers).

     ↑

174. Submission 43 (knowmore).

     ↑

175. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

176. Submission 14 (Inner Melbourne Community Legal).

     ↑

177. Submissions 19 (Schembri & Co Lawyers), 22 (YourLawyer).

     ↑

178. Submission 7 (Dr Kate Seear et al).

     ↑

179. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

180. Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

181. Ibid.

     ↑

182. Submissions 14 (Inner Melbourne Community Legal). See also submissions 19 (Schembri & Co Lawyers), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

183. Submissions 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers).

     ↑

184. Victims of Crime Assistance Act 1996 (Vic) s 48(4).

     ↑

185. Recommendations aimed at improving accessibility for victims include the proposed scheme’s case management and specialisation components (discussed in this chapter), along with recommendations to improve technical and procedural aspects of the proposed scheme, including simplifying eligibility and available assistance (Chs 12 and 13), application requirements (Ch 14) and reducing complexity in decision making (Chs 15 and 16). In addition, Chapter 17 outlines a range of recommendations aimed at improving broader accessibility of the proposed scheme, including recommendations to assist victims who do not have legal representation.

     ↑

186. Tracey Booth, ‘Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences, (Palgrave MacMillan, 2015) 161, 165.

     ↑

187. Ibid.

     ↑

188. Trudy Govier, Victims and Victimhood (Broadview Press, 2015) 156.

     ↑

189. Tracey Booth, ‘Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences, (Palgrave MacMillan, 2015) 161, 165.

     ↑

190. Theo Gavrielides, ‘The Victims’ Directive and What Victims Want from Restorative Justice’ (2017) 12(1) Victims and Offenders 21, 23.

     ↑

191. For example, the Children Youth and Families Act 2005 (Vic) enables Youth Justice Group Conferencing for young offenders, the purpose of which ‘is to facilitate a meeting between the child and other persons (including, if they wish to participate, the victim or their representative and members of the child’s family and other persons of significance to the child)’. A meeting between the young person and a victim is not required, and a meeting may focus instead on the young person and their family. See the Children, Youth and Families Act 2005 (Vic) s 415.

     ↑

192. Objectives of a Youth Justice Group Conference include increasing the child’s understanding of the effect of their offending on the victim and the community and negotiating an ‘outcome plan’. See Children, Youth and Families Act 2005 (Vic) s 415.

     ↑

193. Neighbourhood Justice Centre, Collaborative Problem Solving (2018) <www.neighbourhoodjustice.vic.gov.au/knowledge-centre/therapeutic-and-problem-solving-centre/problem-solving-court>.

     ↑

194. RMIT University, Restorative Justice Conferencing (2018) <www.rmit.edu.au/about/our-education/academic-schools/graduate-school-of-business-and-law/research/centre-for-innovative-justice/what-we-do/current-research/restorative-justice-conferencing>.

     ↑

195. As at 28 May 2018, this service was not yet operational. Information obtained from the Position Description for ‘Convenor, Family Violence Restorative Justice Service’, Department of Justice and Regulation, as advertised February 2018. See Government of Victoria, Vacancies (2018) (accessed 15 February 2018) <https://jobs.careers.vic.gov.au/jobs/VG-DJ1017-DJ1020>.

     ↑

196. This was also submitted in submission 47 (Centre for Innovative Justice).

     ↑

197. Consultation 20 (Academics). As noted above, however, not all restorative justice practices require an interaction between the alleged perpetrator and victim.

     ↑

198. Submission 15 (Merri Health Victims Assistance Program); Consultation 4 (Victim, Witness and Court Support).

     ↑

199. Consultation 19 (RMIT Centre for Innovative Justice). See also submission 27 (Name withheld).

     ↑

200. Submission 37 (safe steps Family Violence Response Centre).

     ↑

201. Submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

     ↑

202. Submission 12 (Jesuit Social Services).

     ↑

203. Submission 43 (knowmore).

     ↑

204. Ibid.

     ↑

205. Consultation 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

206. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

     ↑

207. Submission 8 (Victim Survivors’ Advisory Council).

     ↑

208. Submission 47 (Centre for Innovative Justice).

     ↑

209. Ibid.

     ↑

210. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

211. Theo Gavrielides, ‘The Victims’ Directive and What Victims Want from Restorative Justice’ (2017) 12(1) Victims and Offenders 21, 39.

     ↑

212. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 9.

     ↑

213. Ibid 10.

     ↑

214. Ibid 9.

     ↑

215. Ibid 13–14.

     ↑

216. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 49 (Victims of Crime Commissioner, Victoria); Consultations 2 (Legal Professionals—Private Practice), 6 (Victims’ Advocacy Organisations), 20 (Academics), 25 (Children’s Court of Victoria).

     ↑

217. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 41 (Springvale Monash Legal Service); Consultation 2 (Legal Professionals—Private Practice).

     ↑

218. Consultation 25 (Children’s Court of Victoria).

     ↑

219. Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

     ↑

220. Submission 31 (Victorian Council of Social Service); Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

221. Submission 31 (Victorian Council of Social Service).

     ↑

222. Consultation 4 (Victim, Witness and Court Support).

     ↑

223. Submission 51 (Law Institute of Victoria).

     ↑

224. Submission 37 (safe steps Family Violence Response Centre).

     ↑

225. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

226. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

227. Submissions 7 (Dr Kate Seear et al), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal).

     ↑

228. Consultation 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

229. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

230. Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 14 (Chief Magistrate’s Family Violence Taskforce), 19 (RMIT Centre for Innovative Justice).

     ↑

231. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service); Consultations 2 (Legal Professionals—Private Practice), 14 (Chief Magistrate’s Family Violence Taskforce), 19 (RMIT Centre for Innovative Justice).

     ↑

232. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

233. Ibid.

     ↑

234. Ibid.

     ↑

235. Ibid.

     ↑

236. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

237. Ibid.

     ↑

238. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

239. Ibid.

     ↑

240. Ibid.

     ↑

241. Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

242. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

243. Submission 31 (Victorian Council of Social Service).

     ↑

244. Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

     ↑

245. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre).

     ↑

246. Submission 31 (Victorian Council of Social Service).

     ↑

247. Ibid; Submission 51 (Law Institute of Victoria).

     ↑

248. Submissions 39 (Victorian Aboriginal Legal Services), 44 (Aboriginal Family Violence Prevention & Legal Services Victoria).

     ↑

249. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

250. Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018) 72.

     ↑

251. Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018) 72.

     ↑

252. Australia Childhood Foundation, Professional Community (2017) <https://professionals.childhood.org.au/workshops-and-seminars>.

     ↑

253. See, eg, WestCASA, Training / Community Education (2018) <http://westcasa.org.au/our-services/training-and-community-education/>.

     ↑

254. Domestic Violence Resource Centre Victoria, About Us (2017) <https://training.dvrcv.org.au/welcome-dvrcv/>.

     ↑

255. Victorian Aboriginal Community Controlled Health Organisation Inc, Educational Services (2018) <www.vaccho.org.au/educational/>.

     ↑

256. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

257. For discussion generally in relation to service provision for diverse communities, see Victorian Government, Diversity and Intersectionality Framework (28 April 2017) <www.vic.gov.au/familyviolence/designing-for-diversity-and-intersectionality/diversity-and-intersectionality-framework.html>.

     ↑

258. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

259. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 3.

     ↑

260. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

261. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 15–16.

     ↑

262. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

263. Ibid.

     ↑

264. Submission 31 (Victorian Council of Social Service).

     ↑

265. Department of Justice and Regulation (Vic), Yarrwul Loitjba Yapaneyepuk—Walk the Talk Together: Koori Inclusion Action Plan (2017) 3.

     ↑

266. Submissions 17 (Centre for Excellence in Child and Family Welfare), 38 (Ryan Carlisle Thomas Lawyers); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 14 (Chief Magistrate’s Family Violence Taskforce), 19 (RMIT Centre for Innovative Justice).

     ↑

267. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report 128 (2017) 71.

     ↑

268. Ibid 72.

     ↑

269. Chapters 12–14 make recommendations in relation to eligibility, available assistance and making an application under the proposed new scheme, including consideration of particular victims’ characteristics or particular crime types.

     ↑

270. For a general discussion on diversity and intersectionality, see Victorian Government, Diversity and Intersectionality Framework (28 April 2017) <www.vic.gov.au/familyviolence/designing-for-diversity-and-intersectionality/diversity-and-intersectionality-framework.html>.

     ↑