Victims of Crime Assistance Act 1996: Report (html)

11. The purpose, objectives and principles of the proposed Act for victims of crime financial assistance

Introduction

11.1 In Chapter 8, the Commission recommended the establishment of a new, independent, dedicated and specialised decision maker to oversee a new state-funded financial assistance scheme (the proposed scheme).

11.2 In Chapter 8, the Commission also recommended that the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) be repealed and replaced with a new state-funded financial assistance Act (the proposed Act).

11.3 Having regard to the objectives outlined in the supplementary terms of reference, this chapter considers:

• the existing purpose and objectives of the VOCAA

• the purpose and objectives of state-funded financial assistance schemes in other jurisdictions

• stakeholder responses in relation to the purpose and objectives of the VOCAA.

11.4 This chapter makes recommendations in relation to the purpose and objectives of the proposed Act, as well as guiding principles to assist the decision maker and others in the administration of the proposed scheme.

11.5 The importance of a clearly articulated legislative purpose is founded in common law principles of statutory interpretation and is reflected in section 35 of the Interpretation of Legislation Act 1984 (Vic), which requires decisions makers, when interpreting legislation, to favour ‘a construction that would promote the purpose or object underlying the Act’.^[1]

11.6 The Hon. Michael Kirby AC CMG has observed that statutory interpretation requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question.^[2]

11.7 In relation to victim compensation schemes, Katharina Buck has stated that many such schemes fail to provide a sound theoretical foundation, resulting in moral judgments being made during scheme decision making as a way of overcoming the ‘the theoretical vagueness of state compensation’.^[3]

11.8 Similarly, Njeri Mathis Rutledge has said that providing a ‘clear mission and rationale’ for state-funded financial assistance is the first step to ensuring that any barriers to access for victims of crime are dismantled.^[4]

11.9 The Commission considers it important that the proposed Act contain a clearly articulated purpose and objectives to guide the scheme decision -maker and others involved in the administration of the Act in making any decision or taking any action under the Act, and to assist the courts when there is a question of statutory interpretation.

The purpose and objectives of the VOCAA

11.10 As noted in Chapter 4, the purpose of the VOCAA is to ‘provide assistance to victims of crime’.^[5] The objectives of the VOCAA are set out in section 1(2) and are to:

a) assist victims of crime to recover by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, as a direct result of the crime

b) 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

c) allow victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.

11.11 In addition, section 1 of the VOCAA states that:

• Awards of financial assistance (including special financial assistance) are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.^[6]

• The scheme provided by the Act is intended to complement other services provided by government to victims of crime.^[7]

11.12 As discussed in Chapter 11, case law demonstrates an intersection between consideration of an applicant’s broader character, behaviour and conduct ‘at any time’, as required under section 54 of the VOCAA, and consideration of whether an applicant is an appropriate recipient of recognition and sympathy according to the objective in section 1(2)(b).^[8] In this context, some applicants have been found not to be appropriate recipients of financial assistance provided by the state as a symbolic expression of the community’s sympathy.^[9]

The approach in other jurisdictions

Purpose and objectives

11.13 The Australian Capital Territory, Queensland, Northern Territory and South Australia all include the concept of victim recovery in the purpose or objectives provisions in their relevant state-funded financial assistance legislation. Most jurisdictions also include a purpose or objective related to supporting, assisting or helping victims.

11.14 For example, one of the objects of the Victims of Crime (Financial Assistance) Act 2016 (ACT) includes ‘to assist victims of crime to recover from acts of violence’.^[10] The Queensland scheme includes a similar objective ‘to help victims of acts of violence to recover’.^[11]

11.15 The objects of the Northern Territory legislation include ‘to assist the rehabilitation of victims’,^[12] while South Australia’s relevant legislation includes an objective ‘to help victims of crime recover from the effects of criminal offending and to advance their welfare in other ways’.^[13]

11.16 Of the jurisdictions with specific purpose or objective provisions in their relevant legislation, New South Wales is the only one not to include a purpose or objective of recovery.^[14] Instead, the object of Part 4 of the New South Wales legislation ‘is to establish a scheme for the provision of support for victims of acts of violence’.^[15] As discussed in the Commission’s supplementary consultation paper, this formulation may be considered more inclusive, as it aims to offer assistance to victims whether or not they are able to recover.^[16]

11.17 In regard to paying ‘certain victims’ as a symbolic expression of sympathy, only Victoria and Queensland make such a distinction.^[17] Other schemes limit the provision of assistance through eligibility criteria, and the definition of key terms, such as the definition of act of violence.

11.18 In relation to whether a state-funded financial assistance scheme is a scheme of last resort, no other Australian jurisdiction with equivalent purpose and objective provisions includes a last resort provision in their purpose or objectives.^[18] A number of jurisdictions do, however, have an objective that the state-funded financial assistance scheme complement other services for victims.^[19]

Guiding principles

11.19 No other Australian states or territories have guiding principles in their relevant state-funded financial assistance legislation relating specifically to the administration of their jurisdiction’s state-funded financial assistance scheme.

11.20 Some jurisdictions include general principles for the treatment of victims of crime in their relevant Acts, which are similar in scope and nature to the principles contained in Victoria’s Victims’ Charter Act 2006 (Vic). For example, the Victims of Crime Act 2001 (SA) contains a number of principles governing the way victims are to be dealt with by public agencies and officials.^[20] Similarly, Division 2 of the Victims Rights and Support Act 2013 (NSW) provides for the New South Wales Charter of Victims Rights.

11.21 The Australian Law Reform Commission has observed that guiding principles or statements in legislation ‘can perform an important symbolic and educative role in the application and interpretation of the law, as well as for the general community’.^[21] For example, the Preamble of the Family Violence Protection Act 2008 (Vic) recognises the gendered nature of family violence; the broader community effects of family violence; and the particular dynamics and characteristics of family violence.^[22] The guiding principles in the Criminal Procedure Act 2009 (Vic) require courts to have regard to the fact that there is a high incidence of sexual violence within society; sexual offences are significantly under-reported; and that sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.^[23]

11.22 Such principles provide guidance not only to decision makers, but also speak to community expectations and standards, and provide a picture of the broader policy context underpinning the relevant legislation.

Responses

11.23 In its supplementary consultation paper, the Commission considered whether the purpose and objectives provisions of the VOCAA reflected contemporary views in relation to victims.

11.24 In particular, the Commission sought stakeholders views on whether:

• the purpose of the VOCAA should be on supporting victims of crime rather than recovery, given not all victims of crime may recover

• it remained appropriate that one of the objectives of the VOCAA was that only certain victims of crime are entitled to financial assistance as a symbolic expression of the community’s sympathy, condolence and recognition

• it remained appropriate that some awards are a symbolic expression by the state of the community’s sympathy and condolence while other awards are not.

11.25 In addition to the above matters relating to the VOCAA’s purpose and objectives, the Commission sought stakeholders’ views in relation to whether the VOCAA should include guiding principles, including a principle of protecting victims from undue trauma, intimidation or distress.

The purpose of the VOCAA—assistance versus recovery

11.26 The Commission was told by victim representatives of the Victims of Crime Consultative Committee that the purpose of the VOCAA should be assistance rather than recovery because some victims may never recover from crime.^[24] Springvale Monash Legal Service submitted that changing the purpose from ‘recovery’ to ‘support’ would better reflect the lived experience of victims.^[25] Similarly, knowmore submitted that the object of the existing scheme should be the provision of support rather than recovery, explaining that this would more accurately reflect the reality that recovery may not be achievable for some survivors of institutional child sexual abuse.^[26]

11.27 Other stakeholders viewed assistance as inextricably linked to recovery. For example, cohealth submitted that by changing the purpose of the VOCAA to supporting victims of crime, and providing appropriate and timely support, the scheme would maximise recovery.^[27] Another stakeholder concurred with this view, submitting that ‘to support victims of crime IS in fact to assist their recovery’.^[28]

11.28 Ryan Carlisle Thomas Lawyers submitted that there was no clear distinction between assistance and recovery: ‘”Supporting victims” and “assisting their recovery” are one [and] the same to us.’^[29] Accordingly, Ryan Carlisle Thomas Lawyers were of the view that retaining the purpose of the VOCAA as assisting victims’ recovery was both clear and appropriate.^[30]

Objectives of the VOCAA

Objective 1(2)(b)—paying ‘certain victims’ financial assistance as a symbolic expression of sympathy

11.29 As noted above, the objective in section 1(2)(b) of the VOCAA provides for payment to ‘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’.

11.30 The Commission was told by some academics that although the reference to ‘sympathy’ in section 1(2)(b) of the VOCAA may be ‘well-intentioned’, it:

does not take into account the higher historically and politically specific conditions under which sympathy is experienced and considered legitimate … By tying [sic] awards of compensation to the articulation and experience of ‘sympathy’ in this way, the Act introduces a set of political and moral considerations about who evokes and ‘deserves’ sympathy.^[31]

11.31 In particular, Dr Kate Seear et al submitted that by requiring the Victims of Crime Assistance Tribunal (VOCAT) to consider whether certain victims are worthy of state sympathies, the VOCAA politicises suffering and requires moral judgments about ‘appropriate’ or ‘worthy’ victims.^[32] Accordingly, Seear et al submitted that the VOCAA’s specific emphasis on sympathy in its objectives should be removed.^[33]

11.32 This view was supported by Springvale Monash Legal Service, who submitted that the focus on ‘certain victims of crime’ is underpinned by a philosophy that some victims are innocent or deserving of assistance, while others are not, and that this takes the decision maker’s focus away from assisting victims.^[34]

11.33 The RMIT Centre for Innovative Justice also submitted that:

the ‘certain victims’ who the legislation accepts as eligible for the community’s sympathy are those victims who were most likely to have been functioning members of the community; who experience a single incident of crime; and who are capable of recovering to their previous situation within a relatively short space of time.^[35]

11.34 Knowmore also supported removal of the reference to ‘certain victims’ in recognition that many survivors of institutional child sexual abuse will have a history of criminal offending and substance abuse as a result of the offences perpetrated against them and that:

It is simply unfair to preclude provision of financial assistance to victims because of other conduct which in many cases has its origins, to a significant degree, in the offending perpetrated against the claimant as a vulnerable child.^[36]

11.35 Safe steps Family Violence Response Service also supported removal of ‘certain victims’,^[37] as did Ryan Carlisle Thomas Lawyers who suggested the words be replaced with ‘eligible’.^[38]

11.36 A further submission suggested the notion of a symbolic expression by the state is no longer appropriate as ‘the notion itself of a token gift of money is flawed, and should be removed altogether’.^[39]

Objective 1(2)(c)—scheme of ‘last resort’

11.37 Section 1(2)(c) of the VOCAA states that victims of crime are only to have recourse to financial assistance under the Act where compensation for the injury cannot be obtained from the offender or other sources.

11.38 Although stakeholder feedback on the operation of this provision was limited, some victim support workers told the Commission that as VOCAT is an option of ‘last resort’, some magistrates have in the past refused to reimburse victim support agencies that have paid for a client’s expenses, like urgent medical or dental expenses through the use of brokerage funds.^[40] The Commission is unable to identify specific case law regarding this matter.

11.39 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the intersection of section 1(2)(c) with section 7 of the VOCAA^[41] raises issues of sustainability:

Section 1(2)(c) of the Act provides that one of the Act’s key objectives is to allow victims of crime to have recourse to VoCAT assistance where compensation for their injury cannot be obtained from the offender or other sources. The increasing number of applications being received by the Tribunal from emergency services and other similar workers—particularly those under s 7(1)—has serious implications for the sustainability of VoCAT where other assistance schemes such as WorkSafe are available and may provide more appropriate assistance for such individuals.^[42]

11.40 Issues relating to the VOCAA’s intersection with other schemes, as well as stakeholder views in relation to them, are discussed in Chapter 16.

Guiding principles

11.41 While the VOCAA does not currently contain guiding principles, there was some stakeholder support for the VOCAA to be amended to include as a guiding principle the protection of victims from undue trauma, intimidation or distress.^[43]

11.42 Springvale Monash Legal Service submitted that such a guiding principle should apply to decisions regarding perpetrator notification, whether to allow evidence to be submitted to VOCAT, the manner in which parties give evidence as well as directing Tribunal Members to conduct their determinations in a manner which avoids the risk of victims experiencing trauma, intimidation or distress at any stage.^[44]

11.43 Safe steps Family Violence Response Centre submitted that a guiding principle should be included in the VOCAA requiring that measures should ‘be taken to limit the trauma, intimidation and distress suffered by victims when giving or hearing evidence’.^[45]

11.44 On the other hand, the Aboriginal Family Violence & Prevention Legal Service submitted that such procedural protections would be unnecessary if an administrative model was adopted which was victim-centred and trauma informed.^[46]

Discussion and recommendations

The proposed Act’s purpose

11.45 The Commission considers it important that the proposed Act contain a clear articulation of its purpose and objectives to guide both scheme decision makers and the courts.

11.46 A number of stakeholders considered that the proposed Act’s purpose should not focus on a victim’s recovery, but on the provision of assistance. This approach is supported by academic Njeri Mathis Rutledge who concluded that the primary goal of state-funded financial assistance should be to assist crime victims.^[47] Such an approach has been taken in NSW.^[48]

11.47 The Commission acknowledges that ‘managing the effects of crime’ and ‘recovery’ mean different things to different people. Some victims’ recovery process may take months, years or continue over their lifetime.^[49] Other victims may never return to their pre-crime state.^[50]

11.48 Although acknowledging that not all victims will fully recover from crime, the Commission nevertheless considers it is important that all victims be entitled to assistance that supports them in their recovery. This approach is complementary to the existing approach of the Victims Assistance Program in providing assistance to manage the effects of crime.

11.49 The Commission therefore considers it important that the purpose of the proposed Act be ‘to assist victims in their recovery’. In the Commission’s view this approach requires a nexus between the assistance provided and a victim’s journey towards recovery, even though, as VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria recognised in their joint submission, each victim’s recovery journey will be different.^[51]

11.50 While the proposed purpose provision involves only a slight change in wording from the existing provision of the VOCAA, it recognises that some victims may never recover from crime but that monetary payments to such victims is important for their recovery journey.

11.51 It is not the Commission’s intention that victims who are not demonstrating signs of recovery be denied assistance on the basis of the purpose of the proposed Act. Rather, it is the Commission’s intention that there be a nexus between the assistance provided and a victim’s journey towards recovery, notwithstanding any progress made.^[52]

Recommendation

20 The proposed Act should provide that the purpose of the Act is to establish a scheme to assist victims in their recovery from a criminal act.

The proposed Act’s objectives

Paying certain victims as a symbolic expression of state sympathy

11.52 The Commission agrees with stakeholder concerns about the objective in section 1(2)(b) of the VOCAA—to pay certain victims of crime financial assistance as a symbolic expression by the state of the community’s sympathy.

11.53 In particular, the Commission considers that:

• the use of the term certain victims is unnecessary and introduces a subjective assessment of whether victims are appropriate recipients of assistance, or are a deserving victim.

• as observed by Dr Kate Seear et al, although perhaps well intentioned, the use of the word ‘sympathy’ in the VOCAA gives rise to moral considerations about who evokes and deserves sympathy.^[53]

11.54 Seear et al submitted that there ‘is clear evidence of VOCAT members reading key provisions of the [VOCAA] through a moral lens, and grappling with questions about sympathy and morality’.^[54]

11.55 The Commission considers that victims who are eligible for assistance under the proposed Act should be entitled to assistance according to the specified eligibility criteria, rather than through a subjective assessment of whether a victim is worthy of assistance because they are a ‘certain victim’ as required currently under the VOCAA.

11.56 Additionally, the Commission considers that the proposed Act should not include a provision tying financial assistance to ‘sympathy’ but rather, should reflect victims’ need for acknowledgment and recognition^[55] and the need to provide financial assistance to assist a victim in their recovery from a criminal act.

Option of last resort

11.57 As noted above, the objective in section 1(2)(c) provides for ‘victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources’.^[56] This provision is unique in Australian victims of crime assistance legislation and is not replicated in any other state’s or territory’s purpose or objectives provisions.^[57]

11.58 While few stakeholders commented on this specific objective in the VOCAA, a number of stakeholders did consider its practical effects, including in terms of:

• the VOCAA’s interaction with other schemes in the making of awards

• the circumstances giving rise to the refund of an award

• the practicality of victims pursuing other options, such as compensation from an offender.

11.59 The Commission considers stakeholder views and makes recommendations in relation to these more specific matters in Chapters 16 and 18. Accordingly, this section of this chapter limits discussion to whether the objective articulated in section 1(2)(c) of the VOCAA remains appropriate and should be included in the proposed Act.

11.60 In the Commission’s view, the existing objective in section 1(2)(c) of the VOCAA is underpinned by two principles:

• that where practical, offenders should be required to contribute to a victim’s recovery^[58]

• that where a victim may have other entitlements, or be eligible for assistance through other financial assistance schemes, such other assistance should be exhausted before victims seek assistance under a state-funded financial assistance scheme where it is more appropriate. ^[59]

11.61 As the Commission’s supplementary consultation paper noted, although the objectives of the VOCAA intend the existing scheme to be a financial assistance option of last resort, for many victims it is often the most practical, if not the only, assistance available. This is because most offenders will not have the means to pay a compensation or restitution order made under the Sentencing Act 1991 (Vic) or to pay compensation arising from a civil claim.^[60] Additionally, an order under the Sentencing Act 1991 (Vic) is dependent on a criminal conviction first being made, which may not occur until many months or years after a crime has occurred, if at all. As noted by the Department of Justice and Regulation in their 2017 report Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims, there can be significant delays in criminal cases.^[61]

11.62 The Commission acknowledges that there may be sound policy reasons for expressly providing, as a broad objective, that the scheme be an option of last resort, particularly having regard to scheme sustainability. The Commission nevertheless considers such an objective should not be retained in the proposed Act for the following reasons:

• In practice, state-funded financial assistance has often been the only source of compensation or financial assistance for many victims, rather than being a supplement to other forms of compensation.^[62] As noted above, this is because most offenders will not have the means to pay a compensation or restitution order. Such orders also necessitate the identification and prosecution of an offender, which may not always occur.

• Requiring a victim to exhaust or pursue other options before pursuing state-funded financial assistance as a last resort is likely to lead to substantially increased delays for victims in accessing much-needed financial assistance. As also noted above, an order under the Sentencing Act 1991 (Vic) may take many months or years after a crime has occurred to be finalised. As discussed in Chapters 7 and 8, research also shows the importance of early provision of financial assistance to assist victims of crime in their recovery.

• There are other provisions in the VOCAA which more specifically, and comprehensively, set out the circumstances giving rise to offender contribution, as well as the existing scheme’s interaction with other entitlements or financial assistance schemes.^[63] As a result of these more specific provisions, VCAT has in the past had to

balance the specificity of such provisions with the broad wording in section 1(2)(c), raising some ambiguity about its application.^[64]

• VCAT’s interpretation of the VOCAA provisions relating to the existing scheme’s interaction with other schemes or entitlements does not in fact result in VOCAT being an option of last resort as a literal reading of section 1(2)(c) of the VOCAA might imply. Rather, VCAT has determined that victims can pursue assistance under both the VOCAA and other schemes, provided the assistance or payment provided is for different purposes.^[65]

11.63 In the Commission’s view, retaining as an objective of the proposed Act that the proposed scheme be an option of last resort has the potential to:

• misrepresent state-funded financial assistance as an option of last resort, when for many victims, it may be their only option

• lead to confusion for victims of crime, given there may be circumstances where victims of crime are entitled to financial assistance from two separate schemes

• cause substantial delay in the proposed scheme’s decision making, requiring victims to pursue other options and exhaust all other avenues for financial assistance, even where other options may be impractical, complex, traumatic and unreasonably lengthy

• lead to additional complexity in legislative interpretation by having a broad objective that may be unclear in light of more specific provisions about other schemes or entitlements, as is the case under the VOCAA.

11.64 Accordingly, the Commission no longer considers it practical or appropriate that the proposed scheme be an option of last resort. In the Commission’s view, such an objective can be better met by more specific and strengthened provisions in the proposed Act relating to the circumstances where offender recovery or contribution may be pursued, and interaction with other schemes. These matters are discussed further in Chapters 16 and 18.

11.65 As such, the Commission considers that the objective in section 1(2)(c) of the VOCAA should not be replicated in the proposed Act.

Complementary to other government services and not reflective of other available compensation

11.66 As noted in Chapter 9, the Commission considers that the proposed scheme should complement other services provided by government to victims of crime. Core to this approach is the Commission’s recommendation that the fragmentation in victim support be reduced by expanding the functions and powers of the existing office of the Victims of Crime Commissioner to include the administration of the proposed scheme.

11.67 A number of Australian jurisdictions also have an objective that the state-funded financial assistance scheme complement other services for victims.^[66]

11.68 Accordingly, the Commission considers it appropriate that one of the objectives of the proposed Act be that the proposed scheme complement other services provided by government to victims of crime, similar to the existing section 1(4) of the VOCAA.

11.69 The Commission also considers it appropriate that the proposed Act retain a provision similar to section 1(3) of the VOCAA, which provides that awards of financial assistance to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise. In the Commission’s view, such a provision makes clear the financial limitations of state-funded financial assistance.

Recommendation

21 The proposed Act should provide that the objectives of the Act are to:

(a) recognise, on behalf of the state, victims and the impacts of a criminal act on a victim, through the provision of a respectful forum for victims to be heard and to have their experiences properly acknowledged by the state

(b) assist victims in their recovery from a criminal act through the provision of financial and other practical assistance

(c) complement other services provided by government to victims of crime

(d) enable victims to have recourse to financial assistance under the Act, noting such assistance is not intended to reflect the level of compensation that may be available at common law or otherwise.

Guiding principles

11.70 As discussed above, there was some stakeholder support for the VOCAA to be amended to include as a guiding principle the protection of victims from undue trauma, intimidation or distress.^[67]

11.71 While no other jurisdictions have similar provisions or guiding principles in their relevant acts, the Commission notes the use of a Preamble in Victoria’s Family Violence Protection Act 2008 (Vic) and guiding principles in the substantive body of the Criminal Procedure Act 2009 (Vic).^[68] As discussed above, these statements and principles also provide context for the consideration of the purpose and objectives of the proposed Act.

11.72 For example, the Preamble of the Family Violence Protection Act 2008 (Vic) includes recognition of:^[69]

• the need for the justice system to treat victims of family violence with respect

• the gendered nature of family violence

• the particular vulnerability of children who are exposed to family violence

• the broader community effects of family violence

• the particular dynamics and characteristics of family violence.

11.73 The guiding principles in the Criminal Procedure Act 2009 (Vic) require courts, in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, to have regard to the fact that:^[70]

• There is a high incidence of sexual violence within society.

• Sexual offences are significantly under-reported.

• A significant number of sexual offences are committed against women, children and other vulnerable persons, including persons with a cognitive impairment.

• Offenders are commonly known to their victims.

• Sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.

11.74 In the Commission’s view, the approach in the Criminal Procedure Act 2009 (Vic), which requires courts to have regard to a number of factors addressing common misconceptions about sexual offences,^[71] is preferred over the use of a Preamble as seen in Victoria’s Family Violence Protection Act 2008 (Vic). Although a preamble may assist in statutory interpretation where there is ambiguity in the legislation^[72] The Commission considers it important that the guiding principles form part of the substantive Act.

11.75 Accordingly, the Commission considers that the proposed Act should include as a substantive provision guiding principles which are required to be taken into consideration by the scheme decision maker and other scheme staff in administering the proposed Act. The Commission also considers that such guiding principles should not create or confer on any person, any right or entitlement at law.

11.76 In the Commission’s view, the guiding principles should complement the purpose and objectives of the Act, and should expressly provide that the Act and scheme are intended for the benefit of victims, with victims’ wellbeing at their centre.

11.77 The Commission considers that, in addition to providing guidance to decision makers, such guiding principles have an important symbolic and educative role for the general community in understanding the approach of the proposed scheme,^[73] particularly in the context of the proposed scheme’s mechanisms for victim recognition, detailed in

Chapter 10.

Recommendation

22 The proposed Act should provide that in making any decision or taking any action under the Act, regard must be had to the following guiding principles:

(a) victim benefit—the Act and scheme are intended for the benefit of victims

(b) victims should be protected from undue trauma, intimidation or distress

(c) victims’ needs, safety and wellbeing should be paramount

(d) in recognition that victims’ needs may vary, the scheme should be flexible in the assistance provided.

1. Interpretation of Legislation Act 1984 (Vic) s 35(a). This is described as the ‘purposive approach’ and is to be contrasted with the ‘literal approach’. See also D C Pearce & R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 2006) 25–7.

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2. Michael Kirby AC CMG, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35 Melbourne University Law Review 113, 116.

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3. Katharina Buck, ‘State Compensation to Crime Victims and the Principle of Solidarity: Can Theoretical Analysis Contribute to a Future European Framework?’ (2005) 13(2) European Journal of Crime, Criminal Law and Criminal Justice 148, 168.

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4. Njeri Mathis Rutledge, ‘Looking a Gift Horse in the Mouth—the Underutilization of Crime Victim Compensation Funds by Domestic Violence Victims’ (2011) 19 Duke Journal of Gender Law and Policy 223, 235, speaking more specifically in relation to barriers experienced by domestic violence victims in accessing compensation schemes.

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5. Victims of Crime Assistance Act (Vic) s 1(1).

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6. Ibid s 1(3).

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7. Ibid s 1(4).

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8. For example, in RUM v Victims of Crime Assistance Tribunal [2016] VCAT 367 (10 March 2016) [18], VCAT considered the fact that the applicant was a serious sex offender (lacking remorse and insight in relation to his offending) in determining not to award financial assistance, holding that ‘in addition to the factors at section 54 [of the VOCAA], the objectives of the Act “require consideration of whether an applicant is an appropriate recipient of a symbolic expression by the state of the community’s sympathy”’.

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9. RUM v Victims of Crime Assistance Tribunal [2016] VCAT 367 (10 March 2016) [18].

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10. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 6(a).

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11. Victims of Crime Assistance Act 2009 (Qld) s 3(2)(a).

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12. Victims of Crime Assistance Act 2006 (NT) s 3(a).

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13. Victims of Crime Act 2001 (SA) s 3(c).

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14. Neither Tasmania nor Western Australia have applicable purpose or objectives provisions.

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15. Victims Rights and Support Act 2013 (NSW) s 17.

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16. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 193.

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17. Other schemes limit the provision of assistance through eligibility criteria, such as the definition of ‘act of violence’. See generally Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 195.

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18. See Victims of Crime Assistance Act 2009 (Qld) s 3; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 6; Victims Rights and Support Act 2013 (NSW) s 17; Victims of Crime Assistance Act 2006 (NT) s 3; Victims of Crime Act 2001 (SA) s 3. Neither Tasmania nor Western Australia have applicable purpose or objectives provisions.

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19. See, eg, Victims of Crime Assistance Act 2009 (Qld) s 3(2)(d); Victims of Crime (Financial Assistance) Act 2016 (ACT) s 6.

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20. See generally Victims of Crime Act 2001 (SA) pt 2.

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21. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—Improving Legal Frameworks, Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) 760.

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22. Family Violence Protection Act 2008 (Vic) Preamble.

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23. Criminal Procedure Act 2009 (Vic) s 338.

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

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25. Submission 41 (Springvale Monash Legal Service). See also submissions 37 (safe steps Family Violence Response Centre).

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26. Submission 43 (knowmore).

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27. Submission 18 (cohealth).

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28. Submission 27 (Name withheld).

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29. Submission 38 (Ryan Carlisle Thomas Lawyers).

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30. Ibid.

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

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32. Ibid.

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33. Ibid.

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34. Submission 41 (Springvale Monash Legal Service). See also Attard v Victims of Crime Assistance Tribunal [2011] VCAT 2429 (21 December 2011) [24]–[26] where VCAT drew reference to the phrase ‘certain victims’ to deny an applicant assistance.

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35. Submission 47 (Centre for Innovative Justice).

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36. Submission 43 (knowmore).

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

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38. Submission 38 (Ryan Carlisle Thomas Lawyers).

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39. Submission 27 (Name withheld).

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40. Consultations 4 (Victim, Witness and Court Support), 15 (Regional Consultation—Ballarat Victim Support Agencies).

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41. Section 7(2) of the VOCAA provides that a person is a primary victim if they are injured or die as a result of trying to arrest someone whom they believe on reasonable grounds has committed an act of violence; or trying to prevent the commission of an act of violence; or trying to aid or rescue someone whom they believe on reasonable grounds is a victim of an act of violence whether or not an act of violence is actually committed.

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

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43. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 27 (Name withheld), 37 (safe steps Family Violence Response Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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44. Submission 41 (Springvale Monash Legal Service).

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

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

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47. Njeri Mathis Rutledge, ‘Looking a Gift Horse in the Mouth—the Underutilization of Crime Victim Compensation Funds by Domestic Violence Victims’ (2011) 19 Duke Journal of Gender Law and Policy 223, 226.

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48. Victims Rights and Support Act 2013 (NSW) s 17.

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49. The National Center for Victims of Crime, The Trauma of Victimization (2012) <http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/trauma-of-victimization>.

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50. Department of Justice (Canada), Working with Victims of Crime: A Manual Applying Research to Clinical Practice (2015) (accessed 29 May 2018) <http://canada.justice.gc.ca/eng/rp-pr/cj-jp/victim/res-rech/p6.html>.

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

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52. See also the discussion in the Commission’s supplementary consultation paper in relation to the provision of counselling where a victim is not demonstrating ‘improvement’ in relation to the VOCAA’s requirement that the assistance be ‘reasonable’: Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 83.

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

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54. Ibid.

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55. Chapter 10 discussed why the proposed scheme should no longer conceptualise financial assistance as being tied to notions of state ‘sympathy’ and also outlines mechanisms for victim recognition under the proposed scheme.

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

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57. See Victims of Crime Assistance Act 2009 (Qld) s 3(2); Victims of Crime (Financial Assistance) Act 2016 (ACT) s 6; Victims Rights and Support Act 2013 (NSW) pt 4 div 1 s 17; Victims of Crime Assistance Act 2006 (NT) s 3, Victims of Crime Act 2001 (SA) s 3.

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58. This interpretation is supported by the Second Reading Speech to the VOCAA as first enacted which states ‘wherever practicable convicted offenders [should] make good the harms caused by their crimes by paying compensation for pain and suffering to the victim as assessed by the courts’. This aim is also supported by section 51 of the VOCAA, which enables a victim to assign their rights to recovery from an offender to the state, and section 61 of the VOCAA, which provides that the making of an award of assistance under the VOCAA does not affect a victim’s right to recover from any other person. See Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1024 (Jan Wade, Attorney-General); Victims of Crime Assistance Act 1996 (Vic) ss 51, 61.

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59. This interpretation is supported by the Explanatory Memorandum to the Victims of Crime Assistance (Amendment) Bill 2000 (Vic), where it was noted that the amendments to section 16 of the VOCAA aimed to ‘ensure that crimes compensation is a payer of last resort’: Explanatory Memorandum, Victims of Crime Assistance (Amendment) Bill 2000 (Vic) 4. In addition, this underlying principle is supported by section 16 of the VOCAA, which requires VOCAT to take other entitlements into account when making an award, and section 62, which requires the refund of awards in certain circumstances: Victims of Crime Assistance Act 1996 (Vic) ss 16, 62.

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60. See generally Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 18.

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61. Department of Justice and Regulation (Vic) Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims, Discussion Paper (2017) 5.

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

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63. See Victims of Crime Assistance Act 1996 (Vic) ss 16 (Other entitlements to be taken into account), 51 (Assignment of rights to the state), 61 (Pursuing other remedies) and 62 (Refund of award).

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64. See, eg, Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407, in which the VCAT Member stated ‘I accept that the purpose clause in s1 of the Act is worded in a different and perhaps broader way than s16. But, to my mind, the wording of s16 is clear and ought not to be read down in the light of the purpose clause. If Parliament had intended that s16 would operate in a broader way, it could easily have omitted the words ‘loss, expense or matter for which assistance is sought’: at [26].

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65. See, eg, ibid, in which VCAT held that the applicants were able to access both VOCAT and TAC assistance, despite the objective in section 1(2)(c), because the assistance provided under the schemes was for different purposes. This means that the VOCAA prevents ‘double dipping’, rather than strictly operating as an option of ‘last resort’.

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66. See, eg, Victims of Crime Assistance Act 2009 (Qld) s 3(2)(d); Victims of Crime (Financial Assistance) Act 2016 (ACT) s 6.

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67. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 27 (Name withheld), 37 (safe steps Family Violence Response Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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68. Family Violence Protection Act 2008 (Vic) Preamble; Criminal Procedure Act 2009 (Vic) s 338.

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69. For a complete list of factors, see Family Violence Protection Act 2008 (Vic) Preamble.

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70. Criminal Procedure Act 2009 (Vic) s 338.

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71. For a general discussion of myths and misconceptions about sexual offending, see generally Australian Institute of Family Studies and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence-based Resource for Police and Legal Practitioners (2017) 4; Victorian Law Reform Commission, Sexual Offences, Final Report (2004) 82–4.

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72. See generally Anne Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ (1999) 23(1) Melbourne University Law Review 184.

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73. For a general discussion on the educative benefits of guiding principles, see Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—Improving Legal Frameworks, Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) 760.

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