Victims of Crime Assistance Act 1996: Report (html)

12. Eligibility for assistance under the proposed Act for victims of crime financial assistance

Introduction

12.1 This chapter considers and makes recommendations about the eligibility criteria an applicant must meet to be granted financial assistance under the proposed Act. In particular, this chapter considers and makes recommendations about:

• who should be recognised as a victim for the purposes of the proposed state-funded financial assistance scheme (the proposed scheme)

• what tests a victim should be required to meet to be eligible for assistance under the proposed Act.

12.2 The recommendations in this chapter aim to ensure that:

• the proposed Act recognises the appropriate people as victims

• the tests for eligibility and the evidence required to meet them are simple and easy for victims to understand and comply with, without incurring unnecessary or disproportionate costs.

12.3 This chapter relates to the first matter in the first terms of reference, which asked the Commission to consider the eligibility test and whether it should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury.

12.4 This chapter also relates to the second, third and fourth matters in the supplementary terms of reference, which asked the Commission to consider whether:

• the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) recognises the appropriate people as victims

• the tests for eligibility for assistance and the evidence required to meet those tests can be simplified to avoid unnecessary or disproportionate costs being incurred

• the definition of ‘act of violence’ is adequate to account for harm, including harm caused by multiple acts, such as may occur in the context of family violence.

12.5 The matter of the proposed scheme being efficient and sustainable for the state, as required by the supplementary terms of reference, is addressed throughout this chapter, and in Chapters 13 and 18.

12.6 In its consultation papers, the Commission identified barriers created by the existing eligibility criteria under the VOCAA.^[1] In particular, it noted how the victim categories and the definitions of an act of violence and injury make it difficult for some victims to successfully claim assistance.

12.7 These concerns were reflected in the views expressed by stakeholders. As the Magistrates’ Court of Victoria and the Victims of Crime Assistance Tribunal (VOCAT) stated in their joint submission, the VOCAA’s victim categories and definitions of an act of violence and injury are ‘narrow, outdated and fail to take into account distinct victim experiences’.^[2]

12.8 To address these issues for the purposes of establishing the eligibility criteria for the proposed Act, the Commission first considers the operation and effectiveness of each element of the existing eligibility test under the VOCAA, namely:

• the definition of ‘victim’

• the definition of an ‘act of violence’

• the definition of ‘injury’

• the requirement for the victim to prove that they have suffered injury

• the requirement that the injury was a direct result of the act of violence.

12.9 The Commission then makes recommendations to address the issues identified with the current eligibility test.

12.10 As will be discussed, the recommendations in this chapter aim to simplify and clarify the eligibility criteria a victim must meet in order to be granted financial assistance under the proposed Act.

The eligibility test

Current law

12.11 A person is eligible for financial assistance under the VOCAA if they are the primary, secondary, or related victim of an act of violence, and that act of violence directly results in their suffering injury, death or, for primary victims, a significant adverse effect.

Responses

12.12 As discussed further below, key stakeholder concerns with the current eligibility test include:

• the narrowly defined victim categories under the VOCAA, which can operate to exclude people who are significantly impacted by crime

• the limited types of offence covered by the existing scheme, including the exclusion of non-criminal family violence and certain serious property offences

• the narrow definition of injury under the VOCAA, particularly the need for applicants to demonstrate that they suffered a ‘mental illness or disorder’ in order to make a claim based on psychological harm suffered as a result of the crime

• the difficulty faced by some applicants in establishing that the act of violence caused their injury.

Discussion and recommendations

12.13 The Commission considers that in order for a victim of crime to receive state-funded financial assistance under the proposed Act, victims should continue to be required to satisfy certain eligibility criteria.

12.14 In the Commission’s view, such criteria are necessary to help ensure that the proposed scheme remains efficient and sustainable for the state and that only those applicants intended to receive assistance do so. As VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted, a state-funded financial assistance scheme ‘requires clear eligibility criteria, with an eye to ensuring that the scheme is sustainable in the long term’.^[3]

12.15 However, the Commission considers that the proposed eligibility test must also address stakeholder concerns regarding the current eligibility criteria.

12.16 To address these concerns, and having regard to the scheme objectives noted in the supplementary terms of reference, the Commission considers that it is necessary to reformulate the eligibility criteria under the proposed Act.

12.17 Under the proposed Act, a person should only be eligible for assistance where they:

• are the victim of a ‘criminal act’, and

• suffer ‘injury’ as a result of that criminal act.

12.18 The elements of this proposed new test, and how the Commission’s approach would address stakeholder concerns regarding the current eligibility criteria, are discussed below. Recommendations relating to each element of the proposed eligibility test are also provided.

Recommendation—the eligibility test

23 The proposed Act should provide that a person is eligible for financial assistance where the person is a victim of a criminal act and they suffer an injury as a result of that criminal act.

Definition of a victim

12.19 This section of the chapter considers whether the existing victim categories under the VOCAA recognise the appropriate people as victims. This section then makes recommendations for reforming these categories to enable the proposed Act to better recognise the appropriate people as victims.

Current law

12.20 The assistance an applicant may be entitled to claim under the VOCAA depends on the victim category under which they make their application. An applicant may only apply to VOCAT in one capacity, even if they may be eligible to apply under multiple victim categories.^[4] Each of these existing categories is considered below.

Primary victims

12.21 Under the VOCAA, a primary victim is a person who is injured, dies or suffers a ‘significant adverse effect’ as a direct result of an act of violence committed against them.^[5]

12.22 A primary victim is also a person who is injured or dies as a direct result of trying to arrest a perpetrator of an act of violence, trying to prevent an act of violence or trying to aid or rescue a victim of an act of violence.^[6] The VOCAA provides that the person only has to ‘believe on reasonable grounds’ that someone has committed an act of violence, or that someone is a victim of an act of violence.^[7] Case law establishes that an attempt to prevent an act of violence must be proactive, rather than accidental—for example,

inadvertently interrupting an assault is not sufficient.^[8] In addition, case law establishes

that the aid must be provided at the time of the act of violence.^[9] What constitutes ‘aid’ has also been interpreted narrowly by the Victorian Civil and Administrative Tribunal (VCAT).^[10]

Secondary victims

12.23 Under the VOCAA, a secondary victim is a person who is present at the scene of an act of violence and is injured as a direct result of witnessing that act.^[11]

12.24 A secondary victim is also a person who is the parent or guardian of a primary victim who is under 18 at the time of the act of violence, and who is injured as a direct result of subsequently becoming aware of the act of violence committed against their child.^[12]

12.25 The barriers to accessing assistance that arise from this definition were illustrated by Will v Victims of Crime Assistance Tribunal.^[13] In that case, VCAT rejected a mother’s application as a secondary victim because she had not been present at the scene of the act of violence and her son was over 18 at the time.^[14]

12.26 In addition, children and other persons who witness violence are classified as secondary victims, rather than primary victims under the VOCAA. This is illustrated by NF v Victims of Crime Assistance Tribunal,^[15] where an applicant who witnessed his father beat his stepfather to death when he was eight years old was only able to apply for assistance as a secondary or related victim. This was despite the severe psychological impact the violence had on him.^[16] More recently, in QMX v Victims of Crime Assistance Tribunal,^[17] VCAT held that two children exposed to family violence over a number of years were secondary, not primary, victims and were therefore unable to claim ‘special financial assistance’.^[18] This was despite the fact that the alleged offender ‘appeared to have demonstrated a reckless disregard for the children’s wellbeing and in some circumstances there was a risk of consequential injury when he was kicking doors or banging on windows or attempting to force entry’.^[19]

12.27 The VOCAA also provides that a person, including a child, will only be a secondary victim if they were present at the time of the act of violence and witnessed it directly.^[20] This means that a child, or any other person, who was not present at the scene of the crime, but may have heard or otherwise been exposed to it, will not be eligible for assistance. This particularly affects child victims of family violence, who may be exposed to the violence in ways other than directly witnessing it. For example, a child may overhear threats, be present when police officers attend an incident, provide comfort to the primary victim or help to clean up in the aftermath of the violence.^[21]

Related victims

12.28 The VOCAA provides that a related victim is a person who was a close family member or a dependent of, or who had an intimate personal relationship with, a primary victim who died as a direct result of an act of violence.^[22]

12.29 The VOCAA defines close family member as a ‘person who had a genuine personal relationship with the victim at the time of the death’ and is the spouse, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, step-brother or step-sister of the victim.^[23] ‘Spouse’ is defined in the VOCAA as ‘a person to whom the person is married’.^[24]

12.30 The definition of close family member under the VOCAA does not include other family members, such as the grandparent, cousin, aunt or uncle of a primary victim. Other such family members may be able to make an application under the VOCAA on the basis that they had an ‘intimate personal relationship’ with the deceased primary victim.^[25] However, ‘intimate personal relationship’ is not defined in the VOCAA and has been interpreted narrowly by VCAT.^[26]

12.31 The VOCAA defines dependant as an individual who was ‘wholly or substantially dependent’ on a deceased primary victim’s income at the time of their death, or who would have been but for the fact that the primary victim was incapacitated as a result of the injury from which they subsequently died.^[27] A dependant is also defined in the VOCAA as a child of a deceased primary victim who was born after the primary victim’s death and who would have been dependent on the primary victim if they had been born before the primary victim’s death.^[28]

Responses

12.32 The Commission’s first consultation paper asked questions regarding the eligibility criteria and their impact on family violence victims, including children.^[29]

12.33 The Commission’s supplementary consultation paper asked how the victim categories in the VOCAA affect people applying for financial assistance. It also asked whether the victim categories should be amended, and if so, how.^[30]

12.34 Stakeholder views in response to these questions are set out below. There was significant stakeholder support for reforming the existing victim categories to better recognise appropriate people as victims. However, a number of stakeholders noted that any expansion of the victim categories could have cost implications. The Magistrates’ Court of Victoria and VOCAT submitted that expanding eligibility, including the victim categories, could cause a significant increase in demand, which may impact on the timeliness of awards and the amounts awarded to victims.^[31]

Primary victims

Children who witness, hear or are otherwise exposed to violence

12.35 In response to the consultation papers, stakeholders told the Commission that the existing victim categories should be amended to better recognise children who experience violence by witnessing, hearing or being otherwise exposed to it, in particular to family violence^[32] and sexual abuse.^[33] A number of stakeholders submitted that such child victims should be recognised as primary victims.^[34] Stakeholders noted that recognising children who witness violence as primary victims would enable these child victims to claim special financial assistance under the VOCAA, thereby providing them with access to greater financial support.^[35]

12.36 The Commission was told that such an approach would be consistent with contemporary community understandings of the impact of violence on children, as reflected in state-wide reforms in practice and policy.^[36]

People who prevent a crime or aid or rescue a victim of crime

12.37 A number of stakeholders proposed reforming the VOCAA to better recognise people who are injured as a result of preventing an act of violence or assisting a victim in the aftermath of such an act, for example, family members, paramedics and other medical professionals.

12.38 Springvale Monash Legal Service submitted that there should not be a requirement for the attempt to prevent, aid or rescue to be proactive, as this excludes from the primary victim category people who accidentally interrupt an act of violence, ‘even if it ultimately prevents the offence or assists the victim’.^[37]

12.39 Safe steps Family Violence Response Centre submitted that the primary victim category should be amended to include ‘family members who provide assistance to victims in a manner that does not amount to “aid”’ as currently defined in the VOCAA.^[38] In addition, safe steps Family Violence Response Centre submitted that the VOCAA should be amended to:

specify that section 7(2)(c) applies to aid and assistance rendered both at the time of the act of violence and afterwards, as long as there remains a causal connection between the aid and assistance and the act of violence.^[39]

12.40 Other stakeholders considered that the existing victim categories should be amended to specifically recognise family members who become the carer for a primary victim.^[40] YourLawyer, for example, submitted that close family members should be able to access financial assistance for:

• loss of earnings due to providing aid/care to the primary victim

• travel costs for taking the primary victim to medical and psychological appointments

• costs of medical or psychological treatment incurred on behalf of the primary victim.^[41]

Secondary victims

Additional family members

12.41 Stakeholders told the Commission that the definition of secondary victim under the VOCAA should also be amended to include the following additional family members:

• the children of a primary victim^[42]

• the spouse^[43] or partner^[44] of a primary victim

• the parents or guardians of a primary victim aged over 18 years^[45]

• the siblings of a primary victim^[46]

• other close relatives of a primary victim^[47]

• a person who has a kinship relationship with a primary victim^[48]

• a person who has a ‘family-like’ relationship with a primary victim.^[49]

The partners and children of offenders

12.42 PartnerSPEAK told the Commission that the definition of secondary victim should be amended to include the partners and children of online sex offenders.^[50] This is because the partner and children of such offenders often experience similar impacts to other victims of crime.^[51]

12.43 In a consultation with the NSW Commissioner of Victims Rights, the Commission was told that the partners and children of online child sex offenders can access counselling under the NSW victims of crime assistance scheme as secondary victims.^[52]

Related victims

Contemporary families

12.44 A number of stakeholders told the Commission that the related victim category under the VOCAA should be amended to better recognise contemporary understandings of family,^[53] and that the definition of close family member should be amended to include domestic partners.^[54]

12.45 Safe steps Family Violence Response Centre noted that including ‘domestic partner’ in the related victim category would help ensure that the VOCAA accords with contemporary social values and that there is no discrimination against non-married or LGBTIQ couples.^[55]

12.46 The Victorian Gay and Lesbian Rights Lobby submitted that any definition of ‘domestic partner’ in the VOCAA should not include a duration, or living together, requirement and should be inclusive of LGBTIQ people and people in polyamorous relationships.^[56]

12.47 In addition, safe steps Family Violence Response Centre told the Commission that if domestic partners were added to the definition of close family member, the category of intimate personal relationship should be retained to help ensure that the VOCAA covers other relationships not explicitly included in the definition of close family member.^[57]

12.48 In their joint submission, Women’s Legal Service Victoria and Domestic Violence Victoria noted the need to improve the VOCAA’s recognition of the chosen families of the LGBTIQ community, and to better align the definitions in the VOCAA with the definition of family member in the Family Violence Protection Act 2008 (Vic) (FVPA), which includes family-like relationships.^[58]

12.49 In addition, other stakeholders submitted that the definition of close family member should be amended to recognise children living in the same household as primary victims.^[59]

Extended family

12.50 A number of stakeholders proposed including additional family members in the definition of close family member, such as grandparents and grandchildren.^[60]

12.51 The victim representatives of the Victims of Crime Consultative Committee told the Commission that the related victim category does not adequately recognise the adverse effects of murder on cousins, aunts and uncles of the primary victim.^[61]

12.52 However, other stakeholders cautioned that expanding the definition of close family member could result in a significant increase in demand, causing sustainability issues for VOCAT.^[62]

Kinship relationships

12.53 The Commission was told that the related victim category can operate to exclude Aboriginal and Torres Strait Islander applicants who may have different conceptions of familial relationships.^[63] These applicants may place particular importance on relationships with grandparents and other elders, and with members of the wider kinship group who are not a sister or brother in a biological or legal sense, but who are considered as such by their community.^[64]

12.54 As the Women’s Legal Service Victoria and Domestic Violence Victoria stated: ‘Within Indigenous and other collective cultures in Australia, familial relationships, connectedness and closeness extends beyond the standard family members recognised by European Australian culture.’^[65]

12.55 A number of submissions proposed that the related victim category should be expanded to include kinship relationships as recognised in Aboriginal and Torres Strait cultures.^[66]

Basing the related victim category on other criteria

12.56 As an alternative approach, a number of stakeholders told the Commission that the related victim category should not be based on a fixed list of family members.^[67]

12.57 Instead, they submitted that the related victim category should be based on the substance of the relationship between the applicant and the primary victim to capture close relationships that fall outside the traditional family.^[68] The Commission was told that this approach could also help prevent awards being granted to family members who may be recognised under one of the victim categories, but who do not have a close relationship to the deceased primary victim.^[69]

12.58 Other stakeholders considered that the related victim category should be based on the impact of the violence on the applicant, rather than on their relationship with the primary victim.^[70]

Discussion and recommendations

12.59 The Commission acknowledges stakeholder concerns regarding the significant barriers to assistance created by the victim categories in the VOCAA, and the assumptions these categories make about who is most significantly impacted by crime.

12.60 In particular, the Commission notes:

• The overall quantum of assistance for which a victim is eligible depends on the victim category under which the application is made. In particular, only primary victims are eligible for a lump sum ‘special financial assistance’ payment.^[71] Other victims, even if severely impacted, may be ineligible for this additional payment, including children who witness family violence.

• The victim categories mean that some people who are significantly impacted by crime may not be eligible for any financial assistance at all—for example, people who do not witness the criminal act against their injured family member but who nevertheless suffer injury as a result of learning about the crime or caring for their injured family member.

• The distinction between primary, secondary and related victims—and having different amounts of assistance available for each of these categories—creates a hierarchy of victimhood which fails to reflect some victims’ experiences of crime and their recovery needs.

12.61 Having regard to stakeholders’ views, the Commission considers that the existing victim categories should not be retained under the proposed Act.

12.62 Instead, the Commission considers that the proposed Act should include a single and comprehensive definition of victim to better recognise the people who are most significantly impacted by a criminal act, and remove any hierarchy between them.

12.63 This approach would better recognise that many different people may be impacted by a criminal act, and that the severity of those impacts cannot be assumed by creating hierarchical victim categories, both in name and in terms of the amounts of assistance available.

12.64 While each victim’s specific circumstances—including whether the criminal act was committed against them directly and the nature of their injury—would ultimately determine the amount of assistance awarded under the proposed Act, the Commission considers that abolishing the victim categories would help ensure that restrictions on the amount or type of assistance are not imposed on victims from the outset.

12.65 In addition, the Commission considers that abolishing the victim categories would help improve the transparency of the proposed scheme and its accessibility for victims. In particular, adopting a single definition of victim would make it easier for applicants to assess at the outset whether they are eligible for assistance under the proposed Act and reduce reliance on legal representation.

12.66 The Commission considers that the proposed Act should define a victim as:

a) a person against whom a criminal act was committed

b) a person who was in a close personal relationship with a person who was injured or died as a result of a criminal act committed against them

c) a person who was wholly or substantially dependent on the income of a person who was injured or died as a result of a criminal act, at the time of that person’s injury or death

d) a child of a person who was injured or died as a result of a criminal act and who would have been wholly or substantially dependent on the injured or deceased person’s income if the child had been born before the person was injured or died

e) a person who witnessed a criminal act

f) a person under the age of 18 years who heard or was otherwise exposed to a criminal act

g) a person who attempted to assist, aid, or rescue another person against whom they reasonably believed a criminal act was committed, or was going to be committed, either before, during or immediately after the criminal act

h) a person who tried to arrest someone whom they believed on reasonable grounds had committed a criminal act,^[72] or

i) a person who prevented or tried to prevent the commission of a criminal act.^[73]

Key issues—definition of victim

12.67 Drawing on some of the concerns raised by stakeholders, the next section of this chapter considers of the following key elements of the Commission’s proposed definition of victim:

• the proposed definition of the term ‘close personal relationship’

• how persons who were dependent on a person who died or was injured as a result of a criminal act should be recognised

• how children exposed to criminal acts should be recognised

• how people who prevent a crime, or who aid, or rescue a victim of a crime should be recognised

• whether children and partners of perpetrators of a crime should be recognised

• the implications of the proposed definition of ‘victim’ for scheme sustainability.

Close personal relationship

12.68 The Commission acknowledges stakeholder concerns regarding the limited types of relationship that are recognised under the VOCAA’s secondary^[74] and related victim categories.^[75]

12.69 The Commission also notes that this approach is inconsistent with research which demonstrates that criminal acts can have a ripple effect, affecting many people who are close to victims, including their family members, partners and children who may ‘experience the effects of trauma … sometimes with similar symptoms to those of primary victims’.^[76] This may be especially so for the family members of sexual assault victims.^[77]

12.70 The Commission therefore considers that the proposed Act, in defining victim, should recognise a broader range of relationships than the limited types of relationship currently recognised under the VOCAA.

12.71 The Commission considers that the proposed definition of victim should include any person who was in a close personal relationship with a person against whom a criminal act was committed, regardless of whether the person against whom the criminal act was committed was injured or died as a result of the criminal act. The Commission considers that the proposed Act should provide that a close personal relationship includes the following:

• spouse

• domestic partner, as defined in the FVPA^[78]

• intimate partner

• parent, guardian or step-parent

• child (including by guardianship) or step-child

• sibling or step-sibling

• someone who regarded a person against whom a criminal act was committed as a family member, and the scheme decision maker considers this to be reasonable, having regard to the circumstances of the relationship, including the factors listed in the FVPA for determining whether a family-like relationship existed.^[79]

12.72 In the Commission’s view, such a definition of close personal relationship would clarify the types of relationship that are recognised under the proposed Act. It would include the following types of relationship, as discussed further below, that were identified by stakeholders as being excluded from, or not adequately recognised by, the narrowly defined secondary and related victim categories under the VOCAA:

• Aboriginal and Torres Strait Islander kinship relationships

• LGTBIQ chosen families

• domestic partners

• intimate partners

• other family relationships.

Aboriginal and Torres Strait Islander kinship relationships

12.73 As noted above, the Commission considers that the proposed Act should recognise that a person was in a close personal relationship with a person against whom a criminal act was committed, where that person considered the person against whom the criminal act was committed as a family member, and the scheme decision maker considers this to be reasonable. In making this determination, the scheme decision maker should be required to have regard to the circumstances of the relationship, including the factors listed in section 8(3) of the FVPA.^[80] These factors include ‘the cultural recognition of the relationship as being like family in the relevant person’s or other person’s community’.^[81] This would address stakeholder concerns that Aboriginal and Torres Strait Islander kinship relationships are not recognised under the VOCAA.

12.74 This approach would be consistent with the approaches under both the Australian Capital Territory and Queensland victims of crime assistance schemes, which define family member, for the purposes of being a related victim, as including a person who is regarded in Aboriginal or Torres Strait Islander tradition or custom as one of the listed types of family member.^[82]

The LGBTIQ community’s chosen families

12.75 To address stakeholder concerns that relationships within the LGBTIQ community are not adequately recognised by the victim categories under the VOCAA, the Commission proposes that the definition of close personal relationship include both domestic partners and intimate partners. These categories of relationship are discussed below.

Domestic partners

12.76 The Commission acknowledges stakeholder views that excluding domestic partners is out of step with contemporary values,^[83] and is inconsistent with other parts of the VOCAA that recognise domestic partners.^[84]

12.77 The Commission also notes that almost all other Australian jurisdictions, with the exception of Queensland and Tasmania, expressly recognise a de facto partner^[85] or a domestic partner^[86] as a related victim for the purposes of their victims of crime assistance legislation.

12.78 Accordingly, the Commission considers that under the proposed Act, the definition of ‘close personal relationship’ should include ‘domestic partners’, as defined in the FVPA.^[87] This approach would address stakeholder concerns that, in addition to dependents, only spouses—that is, the husband or wife—and ‘intimate personal relationships’ are recognised under the VOCAA’s related victim category.

Intimate partners

12.79 While the VOCAA currently includes intimate personal relationships in its definition of related victim, this term is not defined.

12.80 Having regard to the views expressed by stakeholders, the Commission considers that intimate partners should also be included in the proposed definition of close personal relationship and that this term should be defined in the proposed Act.

12.81 In the Commission’s view, expressly including intimate partners, as well as domestic partners, in the proposed definition of close personal relationship would enable relationships that are intimate, but not necessarily domestic to be recognised under the proposed Act, as was proposed by safe steps Family Violence Response Centre.^[88]

12.82 This proposed approach would also be consistent with the approach adopted in the Australian Capital Territory, which recognises both a domestic partner and an intimate partner for the purposes of its victims of crime assistance scheme.^[89]

12.83 The Commission considers that the ACT definition of intimate partner should be adopted. This would mean that under the proposed Act, the definition of victim would include someone who was an intimate partner of a person against whom a criminal act was committed, whether or not they were members of the same household.^[90]

12.84 Similarly to the approach adopted in the Australian Capital Territory, the Commission considers that a decision maker’s determination of whether or not an intimate relationship exists should be based on a number of non-exhaustive factors, including:

• the extent to which each is personally dependent on the other

• the extent to which each is financially dependent on the other (including any arrangements for financial support)

• the length of the relationship

• the frequency of contact between each other

• if there is, or has been, a sexual relationship

• the extent to which each is involved in, or knows about, the other’s personal life

• the degree of mutual commitment to a shared life

• if the two people share care of or support for children or other dependants.^[91]

Other family relationships

12.85 The Commission also considers that persons who regard themselves as a family member of a person against whom a criminal act was committed should be recognised as having a close personal relationship with that person, where the decision maker considers this to be reasonable.

12.86 The Commission notes that the FVPA’s definition of family member includes ‘any other person whom the relevant person regards or regarded as being like a family member’ where it is reasonable to do so ‘having regard to the circumstances of the relationship’,^[92] including the matters specified in section 8(3) of that Act.

12.87 Accordingly, and to ensure consistency with the FVPA, the Commission considers that under the proposed Act, the definition of victim should include a person who regards a person against whom a criminal act was committed as a family member, where the decision maker considers this reasonable, having regard to the circumstances of the relationship. In making this determination, the Commission considers that the decision maker should be required to consider a non-exhaustive list of factors. Similarly to section 8(3) of the FVPA, the Commission considers that under the proposed Act, a decision maker should be required to consider:

• the nature of the social and emotional ties between the applicant and the person against whom the criminal act was committed^[93]

• whether the applicant and the person against whom the criminal act was committed live together or relate together in a home environment^[94]

• the reputation of the relationship as being like family in the community^[95]

• the cultural recognition of the relationship as being like family in the community^[96]

• the duration of the relationship between the applicant and the person against whom the criminal act was committed and the frequency of contact^[97]

• any financial dependence or interdependence between the applicant or the person against whom the criminal act was committed^[98]

• any other form of dependence or interdependence between the applicant and the person against whom the criminal act was committed^[99]

• the provision of any responsibility or care, whether paid or unpaid, between the applicant and the person against whom the criminal act was committed^[100]

• the provision of sustenance or support between the applicant and the person against whom the criminal act was committed.^[101]

12.88 In the Commission’s view, this category of relationship would focus on the substance of a relationship, rather than its form, and would help to ensure that other close relationships are recognised under the proposed Act, even if they do not fall within one of the other categories included in the definition of close personal relationship.

12.89 This proposed approach would also address stakeholder concerns that grandparents, aunts, uncles and cousins may be ineligible for assistance under the existing scheme because of VCAT’s narrow interpretation of what constitutes an intimate personal relationship under the VOCAA.^[102]

12.90 However, the Commission considers that expressly recognising such relatives as a separate category or categories under the definition of close personal relationship, without requiring the specific nature of the relationship to be considered and assessed by a decision maker, would compromise the sustainability of the proposed scheme and would place too great an emphasis on blood ties, rather than the substance of those relationships.

12.91 Finally, the Commission notes that this category would also enable carers to be recognised as victims under the proposed Act.

Dependants of persons who died or were injured as a result of a criminal act

12.92 Stakeholders did not raise any issues regarding the ability of dependants of deceased primary victims to access assistance under the VOCAA.

12.93 The Commission considers that dependants of a person who died as a result of a criminal act should continue to be eligible for assistance and therefore should be included in the definition of victim under the proposed Act.

12.94 Similarly to the VOCAA, the Commission also considers that under the proposed Act, a child of a person who died as a result of a criminal act, who would have been dependent on the income of that person if they had been born before that person’s death, should continue to be recognised as a victim for the purposes of the proposed Act.

12.95 However, in contrast to the VOCAA, the Commission considers that a person who was dependent on the income of another person who was injured as a result of a criminal act should also be eligible for assistance under the proposed Act, where the injury has impacted that other person’s ability to earn an income and therefore provide financial support to the dependent person. In the Commission’s view, there is no clear rationale for excluding such persons from also accessing assistance under the proposed Act.

12.96 The Commission considers that the definition of dependant contained in the VOCAA should be reflected in the definition of victim under the proposed Act, with necessary amendments to reflect the Commission’s proposed extension of dependants’ eligibility to include the dependant of a person who was injured as a result of a criminal act.^[103]

12.97 Accordingly, in the Commission’s view, the definition of ‘victim’ in the proposed Act should include:

• an individual who was wholly or substantially dependent on the income of a person who was injured or died as a result of a criminal act, at the time of that person’s death or injury

• a child of a person who was injured or died as a result of a criminal act and who would have been wholly or substantially dependent on the injured or deceased person’s income if the child had been born before the person was injured or died.

Children exposed to criminal acts

12.98 To address stakeholder concerns that children exposed to family violence may not be considered primary victims under the VOCAA unless they directly witnessed the act of violence, the Commission considers that the definition of victim under the proposed Act should include children who witness, hear or are otherwise exposed to criminal acts, regardless of whether they directly witnessed such acts.

12.99 This proposed approach would recognise that being exposed to violence can have far-reaching developmental and psychological impacts for children, particularly in the context of family violence.^[104] As the Royal Commission into Family Violence stated, ‘children and young people experiencing family violence should be recognised as victims in their own right’.^[105]

12.100 The Commission notes that the impact of children’s exposure to family violence is recognised in both Victorian and Commonwealth legislation. Causing a child to hear, witness or be otherwise exposed to family violence constitutes family violence under the

FVPA.^[106] In addition, causing a child to hear, witness or otherwise be exposed to violence constitutes ‘abuse in relation to a child’ under the Family Law Act 1975 (Cth).^[107]

People who prevent a crime or aid or rescue a victim of crime

12.101 To address stakeholder concerns regarding the requirement that an applicant proactively prevent a crime in order to be eligible for assistance as a primary victim,^[108] and to help ensure that persons who inadvertently prevent criminal acts are not excluded from accessing assistance, the Commission considers that the definition of victim under the proposed Act should include a person who ‘prevents or tries to prevent the commission of a criminal act’.

12.102 The Commission’s proposed definition of victim would also include ‘a person who assists, aids, or rescues another person against whom they reasonably believed a criminal act was committed, or was going to be committed, either before, during or immediately after the criminal act’. This would broadly reflect the VOCAA’s definition of primary victim, which includes a person who is injured or dies as a direct result of trying to aid or rescue a victim of an act of violence.^[109]

12.103 The Commission notes that VOCAT’s narrow interpretation of aid has operated to exclude family members from accessing assistance in circumstances where they suffer psychological injuries after caring for a primary victim in the aftermath of an act of violence. This issue would be addressed under the proposed Act because family members who care for victims in the aftermath of a crime would be recognised as victims of criminal act in their own right if they have a close personal relationship with the person against whom the criminal act was committed. As such, they would no longer need to establish that they ‘aided’ the victim in order to qualify for assistance.

Children and partners of perpetrators of crime

12.104 Having regard to PartnerSPEAK’s submission, the Commission acknowledges the significant impact that online sex offending can have on perpetrators’ children and partners, and that apart from the services provided by PartnerSPEAK, there appear to be no dedicated services to support them.^[110]

12.105 However, the Commission considers that extending state-funded financial assistance under the proposed Act to close family members of online sex offenders may unfairly exclude other persons from accessing the scheme who may also suffer injury as a result of a family member’s criminal offending. For example, the Commission notes research which suggests that where a parent is imprisoned as a result of a criminal act, children may suffer ‘a range of psychological impacts including grief and loss, depression and shame’.^[111]

12.106 In addition, the Commission considers that extending the proposed Act to all persons who suffer injury as a result of a family member’s criminal offending would expand the scheme significantly and fundamentally undermine its sustainability for the state.

12.107 The Commission was told that the New South Wales scheme has been interpreted to include partners and children of online child sex offenders for the purposes of accessing counselling.^[112] However, the Commission notes that no Australian victims of crime assistance scheme legislation explicitly extends its assistance to the family members of offenders.

Scheme sustainability

12.108 The Commission acknowledges that the proposed Act’s definition of victim extends the proposed scheme to a larger pool of potential victims. However, the Commission considers that the sustainability of the proposed scheme is unlikely to be threatened by this expansion because the broadening of the potential victim pool is likely to be balanced by the following:

• a person who was in a close personal relationship with a person against whom a criminal act was committed must establish that they themselves suffered injury as a result of the criminal act

• the streams of assistance available to a victim and the quantum of such assistance will depend on an assessment by the decision maker of each victim’s particular circumstances.

12.109 The issue of scheme sustainability more broadly is discussed in Chapter 18.

Recommendations—definition of victim

24 The proposed Act should define a victim as:

(a) a person against whom a criminal act was committed

(b) a person who was in a close personal relationship with a person who was injured or died as a result of the criminal act committed against them

(c) a person who was wholly or substantially dependent on the income of a person who was injured or died as a result of a criminal act, at the time of that person’s injury or death

(d) a child of a person who was injured or died as a result of a criminal act and who would have been wholly or substantially dependent on the injured or deceased person’s income if the child had been born before the person was injured or died

(e) a person who witnessed a criminal act

(f) a person under the age of 18 years who heard or was otherwise exposed to a criminal act

(g) a person who attempted to assist, aid or rescue another person against whom they reasonably believed a criminal act was committed, or was going to be committed, whether the attempt to do so occurred before, during or immediately after the criminal act

(h) a person who tried to arrest someone whom they believed on reasonable grounds had committed a criminal act, or

(i) a person who prevented or tried to prevent the commission of a criminal act.

25 For the purposes of the proposed definition of victim, the proposed Act should provide that a person (‘the relevant person’) was in a close personal relationship with a person against whom a criminal act was committed (‘the direct victim’), where the relevant person, at the time of the criminal act:

(a) was married to the direct victim

(b) was the domestic partner of the direct victim, as defined in section 9 of the Family Violence Protection Act 2008 (Vic)

(c) was the intimate partner of the direct victim

(d) was the parent, guardian or step-parent of the direct victim

(e) was the child, including by guardianship, or step-child of the direct victim

(f) was the sibling or step-sibling of the direct victim, or

(g) regarded the direct victim as a family member, and the scheme decision maker considers it reasonable to have regarded the direct victim as such, having regard to the circumstances of the relationship.

26 For the purposes of the definition of close personal relationship, the proposed Act should define an intimate partner as a person who had an intimate relationship with a direct victim at the time of the criminal act, whether they were members of the same household or not, having regard to the circumstances of the relationship.

Defining a criminal act

Current law

12.110 For a person to be eligible for assistance under any of the three victim categories, the VOCAA requires that there must have been an act of violence.

12.111 The VOCAA defines an act of violence as a ‘criminal act’ or ‘a series of related criminal acts’ that occurred in Victoria and ‘directly resulted in injury or death to one or more persons’.^[113] The VOCAA defines a ‘criminal act’ as an act or omission that is a ‘relevant offence’.^[114]

12.112 A ‘relevant offence’ is defined under the VOCAA as:

• an offence that involves an assault, injury or threat of injury to a person and which is punishable by imprisonment^[115]

• sexual offences contained in subdivisions 8A, 8B, 8C, 8D, 8E, 8F or 8FA of division 1 of part 1 of the Crimes Act 1958 (Vic), which include offences of rape, sexual assault, sexual offences against children, incest, sexual offences against persons with a cognitive impairment, child abuse materials offences, offences of sexual servitude, other sexual offences, and the common law offences of rape or assault with intent

to rape^[116]

• the offences of stalking, child stealing and kidnapping^[117]

• conspiracy, incitement or an attempt to commit any of the offences listed above.^[118]

12.113 In addition, the definition of a criminal act includes an act or omission that would have constituted a relevant offence if the perpetrator had not been incapable of criminal responsibility due to their age, mental impairment or the existence of any other defence.^[119]

12.114 In a number of cases, VCAT has held that an act of violence must involve an offence against the person and therefore does not include property offences.^[120] For example, in Lowe v Victims of Crime Assistance Tribunal^[121] and Matthews v Victims of Crime Assistance Tribunal,^[122] VCAT held that a victim of an arson attack against their home could not be a victim of an act of violence unless they were under a threat of injury at the time of the fire.

12.115 VCAT’s finding that an act of violence only includes offences against the person means that certain sexual offences against children—including the offences of grooming and encouraging or facilitating sexual offences against a child—may also be excluded from the definition of act of violence, despite being contained in subdivision 8B of the Crimes Act 1958 (Vic). This is because of the ‘non-violent’ nature of such offences. For example, AVA v Victims of Crime Assistance Tribunal^[123] concerned a child whose mother’s partner took indecent photographs of her while she was sleeping. VOCAT initially refused the application on the basis that an act of violence had not occurred. This is because the applicant ‘was clothed when photographed; she was asleep at the time; and there was no evidence or inference of any physical contact whatsoever’.^[124] This decision was set aside on appeal to VCAT, where it was held that the VOCAA covers ‘many relevant offences, which do not need to be associated with actual violence’.^[125] However, in this case, VCAT also found that a contact-based sexual offence had taken place. This suggests that some uncertainty may remain in relation to eligibility for victims of non-contact sexual offences against children.^[126]

12.116 Visual and image-based sexual offences contained in Division 4A of the Summary Offences Act 1966 (Vic) (‘upskirting’ offences) are also excluded from the definition of ‘act of violence’. These offences include observing and/or visually capturing the genital or anal region and distributing such images.^[127]

12.117 The definition of act of violence does not include any form of non-criminal violence, such as non-criminal family violence. This is despite the fact that family violence is recognised as a form of violence under the FVPA.^[128]

Responses

12.118 In the first consultation paper, the Commission asked whether the definition of act of violence should be amended to include family violence and if so, how the experience of child family violence victims should be included in the definition.^[129] The Commission also asked whether there should be separate eligibility criteria for victims of family violence.^[130] Regarding eligibility more generally, the Commission asked how the VOCAA should deal with patterns of non-criminal behaviour that result in injury.^[131]

12.119 In both its first and supplementary consultation papers, the Commission also asked whether the definition of ‘act of violence’ should be amended to include other offences, and if so which ones.^[132]

12.120 In the second supplementary consultation paper, the Commission asked how the definition of act of violence impacts on people applying for assistance and whether the definition should include non-criminal behaviour more generally, and if so what forms.^[133]

12.121 Changing notions of what constitutes an act of violence were reflected in the views expressed by stakeholders. In particular, many stakeholders stated that the definition of an act of violence should be expanded to include a broader range of both criminal and non-criminal conduct, as outlined below.

Expanding the definition to account for family violence

12.122 The VOCAA’s definition of an act of violence can create a barrier to accessing assistance for victims of family violence.^[134]

12.123 The issue of whether the definition of an act of violence should be expanded to better recognise family violence victims was addressed in the majority of consultation meetings and submissions.^[135] Many stakeholders supported expanding the definition to more adequately recognise family violence.^[136] However, stakeholder views diverged as to how this would best be achieved.

12.124 The most commonly expressed view was that the definition of act of violence should be amended to include non-criminal family violence, including emotional, psychological and financial abuse.^[137] Most of these stakeholders stated that the definition of family violence from the FVPA should be adopted.^[138]

12.125 However, some stakeholders considered that the FVPA definition should be adopted but also expanded—for example, to include forced marriage^[139] and violence perpetrated by people in a residential facility or in a relationship of dependence.^[140]

12.126 The main reason advanced for expanding the definition of act of violence to include non-criminal family violence was that contemporary understandings of family violence now recognise these forms of abuse, including psychological and financial abuse, and that they can cause as much harm to victims as physical and sexual violence.^[141] Some stakeholders also noted that there should be consistency between legislative instruments and that it may be inconsistent to recognise family violence as a form of violence under the FVPA but not under the VOCAA.^[142]

12.127 However, a smaller number of stakeholders expressed concern about expanding the definition of an act of violence to include non-criminal behaviour.^[143] A common concern raised in this context was that such a broadening of the eligibility criteria could result in a significant increase in demand and impact on scheme sustainability.^[144]

12.128 Other concerns were that:

• such an expansion could impact the timeliness of awards^[145]

• such an expansion could have the effect of watering down the scheme^[146]

• such an expansion could make it easier for perpetrators to make an application for financial assistance^[147]

• such an expansion could increase the risk that a perpetrator misappropriates VOCAT assistance through financial abuse^[148]

• it could be difficult to translate certain forms of family violence, such as psychological abuse, into a lump sum payment^[149]

• a line needs to be drawn between violent crime and ‘unpleasant behaviour’.^[150]

12.129 In addition, the Judicial Advisory Group on Family Violence noted in its submission that extending eligibility to non-criminal forms of family violence could ‘create anomalies’. This is because:

no compensation would be provided for other psychological or financial harms not involving family violence (for example, non-criminal sexual harassment would not create an entitlement to compensation).^[151]

12.130 Concerns about inconsistencies arising in the treatment of non-criminal forms of violence were echoed in a consultation meeting with the President of the Children’s Court of Victoria.^[152] In addition, in their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted that including non-criminal family violence would ‘mark a departure from the Act’s overarching requirement that a criminal offence is established’.^[153]

12.131 Other stakeholders expressed support for a ‘middle ground’ approach.^[154] For example, stakeholders proposed that the definition of an act of violence could be amended to better accommodate family violence but not so far as to include all forms of non-criminal family violence. Stakeholders differed in their suggested approaches, which included:

• extending eligibility only to instances of non-physical family violence that are reported to the police^[155]

• amending the definition of act of violence to include a broader range of criminal offences where they occur in the context of family violence, as is the approach taken in the Australian Capital Territory^[156]—for example, property offences,^[157] trespass,^[158] fraudulent transactions,^[159] arson,^[160] and breach of an intervention order^[161]

• extending eligibility to victims of non-criminal family violence in relation to counselling expenses only, as is the practice in New South Wales.^[162]

12.132 Some stakeholders also proposed a contextual approach whereby the context of non-criminal family violence surrounding an act of violence could be taken into account in determining an award.^[163] For example, non-criminal behaviour could establish that there was a pattern of abuse rather than a one-off assault, qualifying the applicant for a higher quantum of award.^[164]

12.133 Similarly, in their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposed that an uplift category could be inserted into the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) to enable a victim to receive the highest category of special financial assistance (category A) where there is a ‘history of family violence’.^[165] Under this approach, evidence of family violence, including non-criminal family violence (as defined in the FVPA) could be considered as long as the victim establishes a ‘triggering act of violence’ on the balance of probabilities.^[166]

Recognising elder abuse and child abuse

12.134 A number of stakeholders submitted that the definition of an act of violence under the VOCAA should be broadened to better accommodate elder abuse^[167] and child abuse.^[168]

12.135 Seniors Rights Victoria submitted that an extended range of offences should be included in the definition of an act of violence where these occur in the context of elder abuse, including property offences, fraudulent transactions and contraventions of intervention orders.^[169]

12.136 In relation to child abuse, Inner Melbourne Community Legal submitted that the definition of an act of violence should encompass non-criminal forms of child abuse and neglect, such as where the Department of Health and Human Services has intervened on a child’s behalf in the Children’s Court.^[170] Inner Melbourne Community Legal also submitted that if the definition of an act of violence were amended to include these forms of child abuse, VOCAT should be able to rely on the findings of any Children’s Court proceeding, as Victoria Police will commonly not charge the parents or carers of a child with a criminal offence.^[171]

12.137 Knowmore supported a contextual approach to the recognition of child abuse, in which non-criminal abuse may not be the basis of an application under the scheme but would be taken into account as part of the context surrounding a criminal act of physical or sexual abuse.^[172] In particular, knowmore proposed that the VOCAA recognise the concept of ‘connected abuse’, which was introduced in New South Wales in relation to child abuse as a consequence of the Limitation Amendment (Child Abuse) Act 2016 (NSW). Knowmore submitted that the concept of connected abuse allows other forms of child abuse, such as psychological abuse or minor physical abuse, to also be considered in a civil action where a particular threshold of sexual abuse or serious physical child abuse is established. Knowmore stated that Victoria’s limitations law adopts a similar approach for death or personal injury claims where the claimant suffered psychological abuse or was a minor who suffered physical or sexual abuse.^[173]

Sexual offences

12.138 Stakeholders also supported including a wider range of sexual offences in the definition of an act of violence.^[174] In particular, a number of stakeholders proposed including non-contact sexual offences, such as the grooming and image-based offences contained in the Summary Offences Act 1996 (Vic).^[175]

12.139 Project Respect submitted that the eligibility criteria should be broadened to also include sexual offences contained in the Sex Work Act 1994 (Vic).^[176]

Property offences

12.140 A number of stakeholders proposed expanding the definition of an act of violence to include property offences, both in the context of family violence and more generally.^[177]

12.141 Some expressed the view that arson^[178] and aggravated burglary^[179] should be considered acts of violence. Ryan Carlisle Thomas Lawyers submitted that VOCAT may not consider such offences to be acts of violence unless the victim had contact with the perpetrator.^[180] For example, it was submitted that a victim may not be eligible for assistance under the VOCAA where a perpetrator burgles the victim’s home while the victim is at home asleep.^[181]

12.142 Ryan Carlisle Thomas Lawyers submitted that both arson and aggravated burglary should be included as relevant offences for the purposes of the VOCAA, regardless of any contact by the victim with the offender, because these offences often cause ‘distress and, in some cases, significant psychological/psychiatric injuries’.^[182] Similarly, Adviceline Injury Lawyers submitted that aggravated burglary should be covered by the scheme where victims are present in the home but not directly injured.^[183]

12.143 In contrast, other stakeholders told the Commission that any expansion of the eligibility criteria to include property offences should only occur in the context of family violence, with Inner Melbourne Community Legal stating that the scheme may otherwise become unsustainable.^[184]

Other expansions

12.144 A number of submissions proposed that the definition of an act of violence in the VOCAA should be amended to better account for online offences.^[185]

12.145 Slavery Links submitted that the definition of an act of violence should include slavery, as determined by the ‘indicia of slavery’ enunciated by Chief Justice Gleeson in R v Wei Tang.^[186]

12.146 Two submissions proposed including forms of psychological abuse in the definition of an act of violence beyond the context of family violence, elder abuse and child abuse.^[187] One stakeholder considered that the definition of an act of violence should be extended to include mental abuse in the workplace and at schools.^[188] Another stakeholder submitted that the definition of an act of violence should include subjecting a person to psychological distress that causes them to engage in detrimental activities, including in the context of bullying and supplying them with drugs.^[189]

12.147 More generally, and as an alternative approach, one stakeholder submitted that eligibility could be based on the harm suffered as a result of a crime, and not the crime type or whether it was violent or non-violent.^[190]

Discussion and recommendations

Non-criminal acts

12.148 The Commission acknowledges that the current definition of act of violence prevents victims of non-criminal forms of violence from accessing assistance under the VOCAA. This includes victims of certain forms of family violence, elder abuse, child abuse and abuse of people with disability.

12.149 Elder abuse and child abuse often take the form of non-criminal conduct. The Australian Law Reform Commission’s final report, Elder Abuse—A National Legal Response, found that although elder abuse can involve physical and sexual abuse, it more commonly takes the form of psychological or emotional abuse, financial abuse and neglect, which may not be criminal.^[191] As such, victims of elder abuse may not be eligible for assistance under the VOCAA.

12.150 Similarly, the 2013 Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations found that the most common form of child abuse in Australia is emotional abuse.^[192]

12.151 The Commission also notes that although other forms of violence are criminalised—such as physical assault that occurs in the context of family violence—for cultural reasons, these forms of violence may not always be recognised as crimes, may not be reported and, even where reported, may not result in charges being laid by police.^[193]

12.152 However, notwithstanding existing cultural issues concerning the recognition of some criminal violence, the Commission acknowledges that excluding non-criminal forms of violence from the proposed Act may be out-of-step with community understandings of violence. Many in the community now view family violence victims, children, older people and people with disability who are subjected to neglect or financial, emotional or psychological abuse as victims of an act of violence.^[194] Similarly, many now consider that children who witness, hear or are otherwise exposed to violence should be considered victims of violence in their own right.^[195]

12.153 There is also growing recognition of the harm experienced by victims of non-physical criminal offences, such as non-contact sexual offences, the non-consensual distribution of a naked photograph on the internet and ‘grooming’, as well as the adverse impact that some property offences can have on a victim’s mental health. As VOCAT noted in its Annual Report 2016–17, there are ‘changing notions about what may constitute a violent crime and the possible ways in which a person can be victimised’.^[196]

12.154 Widespread stakeholder support for expanding the proposed scheme to include non-criminal violence, particularly family violence, is therefore understandable.

12.155 In this context, the Commission notes that in Queensland, victims of non-criminal family violence are eligible for financial assistance under the Victims of Crime Assistance Act 2009 (Qld).^[197] The Queensland Act explicitly includes domestic violence within its definition of an act of violence, and includes non-criminal psychological and emotional abuse, economic abuse and behaviour that is threatening, coercive or dominating.^[198]

12.156 The Commission acknowledges the very significant impact that non-criminal forms of violence may have on victims, including family violence victims, and the importance of assisting such victims to recover.

12.157 However, notwithstanding the above considerations, including stakeholder views and the approach in Queensland, the Commission considers that the appropriate way to address the exclusion of certain non-criminal forms of violence is to criminalise such conduct to enable its inclusion in the proposed Act, rather than to expand the proposed Act to include non-criminal acts. In the Commission’s view, to do otherwise would undermine the fundamental purpose of Victoria’s state-funded financial assistance scheme for victims of crime, which is to provide assistance to the victims of acts that are criminal in nature for the purpose of assisting them with their recovery.

12.158 Accordingly, the Commission considers that the proposed scheme should reflect the offences in the criminal law and that it is a matter for Parliament to determine what type of conduct constitutes a criminal offence. In the context of family violence, if Victoria amended its Crimes Act 1958 (Vic) to include crimes comparable to Tasmania’s offences of economic and emotional abuse in the context of family violence,^[199] these offences could be considered for inclusion in the proposed Act. However, providing assistance to victims of such violence before it is criminalised would, in the Commission’s view, undermine the proposed scheme’s purpose. In addition, the Commission considers that expanding eligibility to victims of certain types of non-criminal conduct (such as family violence or elder abuse) could unreasonably exclude victims of other types of non-criminal behaviour (such as harassment) which does not occur within a family violence or other recognised context.

12.159 The Commission notes that excluding non-criminal forms of violence under the proposed Act would accord with the Australian Law Reform Commission and New South Wales Law Reform Commission’s recommendation, in their joint report Family Violence—A National Legal Response that only criminal forms of family violence should be included in the definition of an act of violence.^[200] The Commissions stated that ‘the adoption of a definition that captures non-criminal conduct would clearly be in direct conflict with the purposes of [victims’ compensation] schemes, as they are presently framed’.^[201]

12.160 However, the Commission considers that there are other ways that the proposed scheme could acknowledge victims’ experience of non-criminal violence—for example, as discussed in Chapter 13, the Commission considers that where a criminal act occurred in the context of a pattern of non-criminal abuse, including in the context of family violence or child abuse, this should be relevant to the amount a victim is eligible to receive under the proposed Act.

12.161 Finally, the Commission notes that the term act of violence may be confusing for applicants. As a number of stakeholders noted, family violence is recognised by the community, and in legislation, as a form of violence, yet non-criminal forms of this violence are not considered acts of violence under the VOCAA. The Commission therefore considers that this term should not be used under the proposed Act, despite the fact that the crimes covered by the proposed Act may often be violent acts. In the Commission’s view, the proposed Act should instead use the term ‘criminal act’ to describe those criminal offences that are included in the proposed Act. The Commission considers that

the term ‘criminal act’ is easier for applicants to understand and its use would therefore improve scheme accessibility and may reduce reliance on legal representation.

Additional criminal offences

12.162 As discussed above, the Commission considers that the proposed Act should continue to cover criminal offences only. The Commission considers that those criminal offences currently contained in the VOCAA should continue to be recognised under the proposed Act.^[202] However, for the reasons discussed in this part, the Commission considers that the range of criminal offences covered by the existing scheme should be expanded under the proposed Act to include additional offences that are likely to have a significant impact on victims.

12.163 The Commission notes one stakeholder’s proposal that the scheme could be expanded to cover any criminal offence, so long as the victim can establish that the offence resulted in the victim suffering harm.^[203] The Commission acknowledges that an emphasis on injury, rather than on the type of offence, would avoid any hierarchy between crimes by not presuming that certain crimes, such as crimes against the person, necessarily have a greater impact on victims than other types of crime, such as property or fraud offences.

12.164 However, in practice, the Commission considers such an approach may be administratively burdensome, as applicants and the proposed scheme would have to determine whether a particular claim relates to any one of Victoria’s large number of criminal offences. In addition, the Commission considers that such an expansion may threaten the proposed scheme’s sustainability.

12.165 In the Commission’s view, the proposed Act should therefore retain the approach under the VOCAA and list those criminal offences that may give rise to an award of assistance.

12.166 The Commission’s proposed expanded offences are discussed further below.

12.167 The Commission considers that the proposed Act should provide that further offences may be prescribed by regulation. This would enable additional offences to be included in the proposed Act where this is considered appropriate, in line with community expectations or in response to changes to the criminal law.^[204]

Sexual offences

12.168 In the Commission’s view, all sexual offences under the common law, Crimes Act 1958 (Vic) and Summary Offences Act 1966 (Vic) should be recognised under the proposed Act as criminal acts. The Commission considers that there is no rationale for distinguishing between these crimes for the purposes of the proposed scheme. This is because sexual offences that may be considered less serious for the purposes of the criminal law may nevertheless have a significant impact on a victim.

12.169 As outlined above, sexual offences contained in the Summary Offences Act 1966 (Vic)—observing a person’s genital or anal region,^[205] taking images of a person’s genital or anal region^[206] and distributing intimate photographs^[207] (‘upskirting’ offences)—are currently excluded from the VOCAA, despite the fact that they can have a significant impact on victims.^[208] For example, research demonstrates that victims of image-based abuse can experience high levels of psychological distress.^[209]

12.170 As also outlined above, certain sexual offences against children such as engaging in sexual activity in the presence of a child,^[210] encouraging or facilitating a child to be involved in sexual activity,^[211] and the offence of grooming,^[212] may also be excluded from recognition under the existing scheme, despite it now being well recognised that the betrayal and manipulation of trust involved in offences such as grooming can cause significant trauma for victims.^[213]

12.171 Many of the sexual offences excluded from the existing scheme have been introduced more recently in recognition of changes in technology which have enabled new forms of sexual abuse. As VOCAT noted in its Annual Report 2015–16:

The area of sexual offending in particular has seen the creation of many new offences in recent years to grapple with advances in technology that have enabled offending to occur in ways not previously contemplated. Yet despite the harms caused to victims of such crimes, many of the new offences would not satisfy the eligibility requirements of the Act.^[214]

12.172 The Commission considers that the proposed Act should reflect these developments in the criminal law by including these crimes. This would be consistent with the approach in the Australian Capital Territory, where the Victims of Crime (Financial Assistance) Act 2016 (ACT) includes all sexual offences contained in Part 3 of the Crimes Act 1900 (ACT).^[215] This includes offences such as ‘intimate observations or capturing visual data’^[216] and using the internet to deprave young people.^[217]

Property offences

12.173 The Commission acknowledges stakeholder concerns that arson and aggravated burglary may not be covered by the existing scheme in circumstances where the victim did not suffer physical injury or did not come into contact with the perpetrator. The Commission notes that even in the absence of perpetrator contact, these offences often have a significant psychological impact on victims.^[218]

12.174 These impacts were illustrated in Lowe v Victims of Crime Assistance Tribunal, in which both applicants were diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood as a result of an arson attack on their home.^[219]

12.175 In addition, the Commission notes that victims of property offences may have similar safety-related needs to victims of crimes against the person. For example, victims of multiple break-ins by members of a gang claimed financial assistance from VOCAT for a security door.^[220] However, their claim was reportedly unsuccessful because the victims had not been physically attacked.^[221]

12.176 Stakeholders did not discuss the recently introduced home invasion offences, which involve more than one person trespassing in a home with intent to steal, commit assault or damage the home or property in it, in circumstances where the offenders are armed and/or the victim is home at the time.^[222] However, the Commission considers that such offences are likely to have a similar impact on victims as aggravated burglary.

12.177 The Commission therefore considers that serious property offences that are likely to have a significant psychological impact on victims—namely, arson,^[223] aggravated burglary,^[224] home invasion^[225] and aggravated home invasion^[226]—should be recognised as criminal acts under the proposed Act.

12.178 These crimes involve violation of the victim’s home or property in circumstances where the victim either, in the case of arson, suffers damage to their home or property, or, in the case of aggravated burglary and aggravated home invasion, is present when the offence occurs. While it is not necessarily the case that a victim will be present at the time of offending for the purposes of the home invasion offence (as opposed to the aggravated home invasion offence), the Commission considers that invasion of the home by multiple armed offenders, even without the victim being home at the time, is also of sufficient seriousness to warrant inclusion.

12.179 The Commission considers that in light of the seriousness of such offences, it should be irrelevant for the purposes of the proposed Act whether the victim came into contact with, or was physically attacked by, the offender.

12.180 The Commission previously considered the issue of whether to include property offences in the existing scheme as part of its reference on the role of victims of crime in the criminal trial process.^[227] It recommended that property offences should not be included in the scheme due to concerns about scheme sustainability.^[228]

12.181 During that reference, the Commission received a submission that the eligibility criteria in the VOCAA should be expanded to include property offences such as property damage, burglary and online fraud.^[229] However, the Commission decided there was no compelling reason for such an expansion.^[230] The Commission noted the Magistrates’ Court of Victoria’s submission that ‘expanding eligibility to victims of non-violent and property crimes would substantially increase the number and complexity of claims and the costs of the scheme’.^[231] The Commission also noted Victoria Police’s submission that the expansion of crimes compensation schemes to cover property offences could act as a disincentive for individuals to obtain property insurance.^[232]

12.182 However, the Commission notes that the terms of reference for that reference were much broader in scope than the present terms of reference—which focus specifically on the operation of VOCAT and how Victoria’s victims of crime assistance scheme can better assist victims of crime.

12.183 In this context, and in light of significant stakeholder submissions on this point,^[233] the Commission now considers that the proposed Act should include certain serious property crimes in recognition of the serious impact such offences have on some victims.

12.184 However, the Commission acknowledges that concerns regarding scheme sustainability are still relevant. As such, the Commission considers that only those property offences identified above should be included in the proposed Act, and that property crimes more generally should not be recognised—except in the context of family violence. As discussed below, the Commission considers that victims of certain other property offences— such as damaging property or threats to do so—should be eligible for assistance if the offence was committed in the context of family violence.

Offences that occur in the context of family violence

12.185 As discussed above, the Commission considers that the proposed Act should continue to recognise criminal acts only. It follows that victims of non-criminal family violence would not be eligible for assistance under the proposed Act.

12.186 However, to better recognise the impacts of family violence and the variety of ways in which it occurs, and to address the barriers faced by such victims in accessing assistance under the existing scheme, the Commission considers that the proposed Act should include a broader range of criminal offences, where those offences occur in the context of family violence, as defined in the FVPA.^[234] This proposed approach is modelled on the approach in the Australian Capital Territory. In addition to offences against the person, the Victims of Crime (Financial Assistance) Act 2016 (ACT) provides for a separate category of family violence offences which can give rise to eligibility for financial assistance.^[235] These offences include property offences, such as destroying or damaging property and burglary, driving offences, possession of offensive weapons and contravention of a family violence order.^[236] The Explanatory Statement accompanying the ACT Act states that the inclusion of these additional offences is intended to recognise ‘the harmful effects of these domestic violence offences’.^[237]

12.187 Similarly, the Commission considers that the following offences should be included in the proposed Act, where they occur in the context of family violence:

• contravention of a family violence intervention order ^[238]

• contravention of a family violence intervention order intending to cause harm or fear for safety ^[239]

• persistent contravention of family violence intervention notices and orders^[240]

• destroying or damaging property ^[241]

• threats to destroy or damage property ^[242]

• possessing anything with intent to destroy or damage property ^[243]

• burglary ^[244]

• theft^[245]

• obtaining property by deception^[246]

• obtaining financial advantage by deception^[247]

• blackmail^[248]

• taking or using vehicle without consent of the owner ^[249]

• obscene, indecent, threatening language and behaviour in public^[250]

12.188 The Commission considers that including these offences in the proposed Act could also address some of the gaps identified in relation to elder abuse and abuse of people with disabilities. For example, financial abuse experienced by older people and people with disability may be covered where such abuse is perpetrated by a family member and constitutes a relevant offence, such as theft or blackmail.

Additional offences

12.189 The Commission acknowledges the concerns raised by Project Respect regarding the exclusion from the existing scheme of certain offences contained in the Sex Work Act 1994 (Vic). The Commission notes that there may also be other criminal offences relating to specific industries or sectors that are not contained in the Crimes Act 1958 (Vic) or the Summary Offences Act 1966 (Vic), which may also have a significant physical and/or psychological impact on victims and which are not covered by the VOCAA. For example, offences relating to public health and occupational health and safety.

12.190 The Commission therefore considers that the government should conduct a broader review of criminal offences under Victorian law to determine whether the offences contained in the Sex Work Act 1994 (Vic) and/or any other offences related to specific sectors or industries should be included in the proposed Act. As noted above, the Commission considers that the proposed Act should also provide that additional offences may be prescribed by regulation.

Recommendations—defining a criminal act

27 The proposed Act should define a criminal act as an act or omission that has occurred in the state of Victoria and which would constitute:

(a) an offence, punishable on conviction by imprisonment, that involved an assault on, or injury or a threat of injury to, a person

(b) any sexual offence, including those contained in the Summary Offences Act 1966 (Vic)

(c) an offence of stalking, child stealing or kidnapping under the Crimes Act 1958 (Vic)

(d) an offence of arson, aggravated burglary, home invasion, or aggravated home invasion under the Crimes Act 1958 (Vic), regardless of whether the victim had contact with the offender at the time of the offence

(e) any one of the following offences:

(i) contravention of a family violence intervention order under the Family Violence Protection Act 2008 (Vic)

(ii) contravention of a family violence intervention order intending to cause harm or fear for safety under the Family Violence Protection Act 2008 (Vic)

(iii) persistent contravention of family violence intervention notices and orders under the Family Violence Protection Act 2008 (Vic)

(iv) destroying or damaging property under the Crimes Act 1958 (Vic)

(v) threats to destroy or damage property under the Crimes Act 1958 (Vic)

(vi) possessing anything with intent to destroy or damage property under the Crimes Act 1958 (Vic)

(vii) burglary under the Crimes Act 1958 (Vic)

(viii) theft under the Crimes Act 1958 (Vic)

(ix) obtaining property by deception under the Crimes Act 1958 (Vic)

(x) obtaining financial advantage by deception under the Crimes Act 1958 (Vic)

(xi) blackmail under the Crimes Act 1958 (Vic)

(xii) taking or using a vehicle without consent of the owner under the Summary Offences Act 1966 (Vic)

(xiii) obscene, indecent, threatening language and behaviour in public under the Summary Offences Act 1966 (Vic)

(xiv) intentionally or recklessly causing a bushfire under the Crimes Act 1958 (Vic)

where that offence occurred in the context of ‘family violence’ as defined by the Family Violence Protection Act 2008 (Vic)

(f) an offence of conspiracy to commit, incitement to commit or attempting to commit any of the above offences

(g) any one of the above offences, if the person had not been incapable of being criminally responsible for it on account of age, mental impairment or other legal incapacity preventing them from having a required fault element, or the existence or any other lawful defence.

28 The proposed Act should provide that additional offences may be prescribed by regulation.

29 Government should conduct a review to determine whether the offences contained in the Sex Work Act 1994 (Vic) and any other offences that may have a significant physical and/or psychological impact on the victim should be recognised by the proposed Act.

Defining injury

Current law

12.191 The VOCAA provides that for a victim to be eligible for assistance, the act of violence must have directly resulted in their injury or death,^[251] and/or, for primary victims, a significant adverse effect.^[252]

12.192 The VOCAA defines injury as:

• actual physical bodily harm

• mental illness or disorder or exacerbation of a mental illness or disorder, whether or not flowing from nervous shock

• pregnancy

• any combination of these matters arising from an act of violence.^[253]

12.193 The term ‘mental illness or disorder’ is not defined in the VOCAA and there is a lack of clarity regarding what an applicant must prove to demonstrate this. It appears that VCAT generally understands mental illness or disorder to mean any mental injury that constitutes a recognised psychiatric or psychological disorder.^[254]

12.194 However, in some cases, the presence of psychiatric symptoms without a diagnosis of a disorder has been accepted as a mental injury or disorder. For example, in AVA v Victims of Crime Assistance Tribunal,^[255] a child applicant sought financial assistance after her mother’s partner took indecent photos of her while she was asleep. VOCAT found that the applicant’s ‘shyness and anxiety problems’ did not constitute a mental illness or disorder.^[256] However, on appeal, VCAT found that the presence of anxiety symptoms without an anxiety disorder still amounted to injury for the purposes of the VOCAA.^[257]

12.195 The VOCAA also deems a person to be suffering an injury if VOCAT is satisfied on medical or psychological evidence that treatment or counselling is required as a result of trauma associated with an act of violence.^[258] VCAT has interpreted the word trauma to ‘include not only physical injury but also psychological injury of a “startling experience which has a lasting effect on mental life; a shock”’.^[259]

12.196 The VOCAA provides that injury does not include injury arising from property loss or damage.^[260]

Significant adverse effect

12.197 Financial assistance in the form of ‘special financial assistance’ may also be available under the VOCAA if a victim has suffered a significant adverse effect.^[261] This can occur in two circumstances:

• where a primary victim suffers a significant adverse effect as a direct result of an act of violence.^[262]

• where a primary victim suffers a significant adverse effect as a result of an act of violence, a secondary victim may also be eligible for assistance.^[263] However, the secondary victim will also need to establish that they personally suffered an injury as a result of witnessing or learning about the act of violence.^[264]

12.198 Significant adverse effect is defined to include ‘any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence’.^[265] However, as with the definition of injury, it does not include property loss or damage.^[266]

Responses

12.199 In its first consultation paper, the Commission asked whether the definition of injury should be expanded to include non-physical and/or psychological injuries often experienced by victims of family violence and if so, which injuries.^[267] The Commission also asked whether the definition of injury should be amended to better reflect the cumulative impact of family violence over time, and if so, how this should be done.^[268]

12.200 In its supplementary consultation paper, the Commission asked how the definition of injury impacts on people applying for assistance more generally, whether the definition should be amended to include other forms of harm, and if so what forms.^[269]

12.201 Stakeholders did not raise any issues with the definition of injury in so far as it relates to physical injury, with the exception of Ryan Carlisle Thomas Lawyers, which noted that the VOCAA does not include ‘exacerbation of physical injury’ in its definition of injury.^[270]

12.202 In relation to mental injury, there was significant stakeholder support for broadening the definition of injury to include a wider range of mental harms.^[271] However, as outlined below, stakeholders proposed a diverse range of options for doing so.

Mental injury

12.203 One of the most common proposals by stakeholders was to amend the definition of mental injury to make it less restrictive.^[272]

12.204 One of the main reasons advanced for this was to recognise psychological harm that falls short of a recognised ‘mental illness or disorder’ but which nevertheless has a severe impact on victims.^[273] Stakeholders also told the Commission that the definition of injury should better reflect the diverse ways that trauma can manifest.^[274] In particular, stakeholders noted that victims of family violence, child abuse and sexual assault often suffer from emotional and psychological harms that do not constitute a mental illness or disorder.^[275]

12.205 For example, PartnerSPEAK told the Commission that the VOCAA should recognise ‘the symptoms of trauma, including memory loss, affected sleeping patterns, suicidal thoughts, inability to work, attention lapses and physical responses to stress, such as loss of vision’.^[276]

12.206 Some stakeholders suggested adopting the broader definition of mental injury used in New South Wales, which is ‘psychological or psychiatric harm’.^[277] Other options put forward by stakeholders for a new definition of mental injury included ‘mental and nervous shock’ or ‘impairment of mental health’.^[278] Anglicare Victoria Victims Assistance Program submitted that the definition should reflect ‘symptoms of trauma’.^[279]

12.207 Stakeholders also expressed concern that establishing mental illness or disorder requires victims to undergo non-therapeutic psychiatric assessments, which can be re-traumatising and can adversely affect recovery.^[280] Some stakeholders also noted that receiving such a diagnosis can be harmful for some victims, as it can become a ‘permanent label’ for them.^[281]

12.208 The Commission was told that some victims may find it difficult to establish that they have suffered a mental illness or disorder because they may not want to see a psychologist or psychiatrist to obtain a report. For example, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that ‘some Aboriginal people may experience western psychiatry as unhelpful and inconsistent with Aboriginal understandings of social and emotional health and wellbeing’.^[282]

12.209 The Aboriginal Family Violence Prevention & Legal Service Victoria also noted that it can be difficult for Aboriginal people in rural and regional areas to obtain a report from culturally competent psychologists and psychiatrists.^[283]

12.210 In addition, the Victim Survivors’ Advisory Council noted that family violence victims may wish to avoid a psychiatric assessment ‘for fear of being diagnosed with a mental illness and/or disorder which may affect family law outcomes and child protection involvement in the cases where children are involved.’^[284]

12.211 The Commission was also told that simplifying and broadening the definition of injury would make documentary evidence requirements easier to satisfy, which in turn would reduce the need for lawyers and judicial decision makers.^[285]

Social, emotional and behavioural harms

12.212 A number of submissions proposed expanding the definition of injury in the VOCAA to include a broader range of social, emotional and behavioural harms that victims of crime may suffer.^[286] Again, stakeholders were concerned that the current definition of injury under the VOCAA does not recognise the range of harms that victims of crime can suffer, especially victims of family violence and sexual assault.^[287]

12.213 Proposals ranged from broad recommendations for the VOCAA to recognise ‘behavioural, interpersonal, social and spiritual needs’,^[288] to the recognition of social isolation, declining health and the denial of ‘access to health and aged care service[s]’,^[289] to specific recommendations to adopt the approach used in the Queensland and ACT schemes.^[290] Under both these schemes, an expanded list of injuries for victims of sexual assault and family violence is recognised, including a sense of violation, a reduced sense of self-worth, increased fear or feelings of insecurity, and reduced capacity to participate in sexual activity.^[291]

12.214 Some submissions stated that an expanded range of social, emotional and behavioural injuries should only apply for particular cohorts of victim—namely, for family violence and sexual assault victims.^[292] Some submissions also discussed the need to include social, emotional and behavioural harms in relation to children^[293] and in the context of elder abuse.^[294] Other submissions considered that there should be a more general expansion of the definition of injury applicable to all victims.^[295]

Property damage

12.215 A number of submissions proposed extending the current definition of injury to include property loss, damage or destruction^[296] and economic harm.^[297]

12.216 One reason advanced for this is that such an expansion would better capture the harms commonly experienced by victims of family violence because the only tangible harm some victims of family violence may be able to demonstrate is property damage.^[298] In addition, the economic harm that can flow from property damage or destruction can affect the independence and security of victims of family violence, as well as contribute to their long-term financial disadvantage.^[299]

12.217 However, far fewer submissions supported expanding the definition of injury to include property damage than those which supported amending the definition of an act of violence to include certain property offences.^[300] In other words, while a substantial number of stakeholders favoured extending eligibility to some victims of property damage, most stakeholders considered that there should still be a requirement for physical or psychological injury.

12.218 This viewpoint was articulated in the Victorian Victims of Crime Commissioner’s submission, which stated that while the definition of injury should cover psychological or psychiatric harm arising from property damage, it should not extend to property damage itself.^[301]

Cumulative harm

12.219 Stakeholders told the Commission that the VOCAA’s definition of injury does not adequately recognise cumulative harm.^[302]

12.220 In particular, a number of stakeholders told the Commission that the lack of recognition of cumulative harm can make it difficult for some applicants—in particular, victims of family violence—to satisfy the causation requirement.^[303] This is because although ongoing abusive behaviour can cause significant cumulative harm, each incident of family violence may not result in a specific, identifiable injury.^[304] In addition, it was noted that a victim’s injury may be the result of a combination of criminal and non-criminal behaviour.^[305]

12.221 Accordingly, a number of stakeholders expressed support for the explicit recognition of cumulative harm in the context of family violence in the VOCAA’s definition of injury.^[306]

Discussion and recommendations

12.222 The Commission acknowledges stakeholder concern that the VOCAA’s definition of injury is too narrow and excludes victims who have suffered mental injury but cannot establish that they have a mental illness or disorder. This can disadvantage certain victims, including victims of family violence and sexual abuse, who may suffer a range of other emotional, psychological and behavioural harms as a result of the crime. It can also disadvantage victims who cannot or who do not want to be assessed by a psychologist or psychiatrist or who do not want to receive a diagnosis of a mental illness or disorder.

12.223 The Commission therefore considers that the definition of injury in the proposed Act should be expanded so that a victim is not required to demonstrate that they have a mental illness or disorder to be eligible for assistance.

12.224 Similarly to the approach adopted in New South Wales, the Commission considers that ‘psychological or psychiatric harm’ should be sufficient to establish mental injury for the purposes of the proposed Act. The Commission notes that there was broad stakeholder support for this approach and that it accords with the widely recognised psychological impacts of sexual assault and family violence, which may be significant for victims despite not constituting a diagnosed psychological or psychiatric illness or disorder.

12.225 The Commission considers that physical harm should continue to constitute injury under the proposed Act. In addition, exacerbation of any pre-existing physical injury should constitute injury for the purposes of the proposed Act. Currently, the definition of injury only recognises the exacerbation of pre-existing mental harm. In the Commission’s view, there is no rationale for recognising the exacerbation of pre-existing mental injury but not of physical injury.

12.226 The Commission also considers that pregnancy should be removed from the current definition of injury. As discussed in the following section, the Commission considers that victims of sexual offences should not be required to prove injury. As such, it follows that it is unnecessary for pregnancy to be included in the proposed definition of injury, as this will not be relevant for victims of other criminal acts.

12.227 The Commission further considers that removing the requirement for victims of sexual assault and family violence to prove injury, as discussed below, would make it unnecessary for the proposed Act to include broader social, emotional and behavioural harms in the definition of injury. The Commission also considers that removing the requirement to prove injury for these victims would address stakeholder concerns regarding the current lack of recognition of cumulative harm in the VOCAA’s definition of injury.

12.228 In the interests of scheme sustainability, the Commission considers that property damage should not be included in the definition of injury. The Commission agrees with the Victims of Crime Commissioner that while the definition of injury under the proposed Act should cover psychological or psychiatric harm arising from property damage that occurs as a result of a criminal act, it should not extend to property damage in and of itself.^[307]

12.229 The Commission acknowledges that the exclusion of property loss or damage as a form of injury has been a particular issue for victims of family violence.^[308] However, the Commission considers that this issue would be addressed by the Commission’s recommendation above that the proposed Act be expanded to cover certain property offences that occur in the context of family violence.

Recommendation—defining injury

30 The proposed Act should define injury as:

(a) physical harm

(b) psychological or psychiatric harm

(c) exacerbation of any pre-existing physical, psychological or psychiatric harm, or

(d) any combination of (a), (b) or (c).

Proof of injury

Current law

12.230 To be eligible for assistance under the VOCAA, primary and secondary victims must

prove that they suffered an injury or a significant adverse effect as a direct result of the criminal act.^[309]

12.231 The standard of proof required to establish that an injury occurred is discussed in

Chapter 14.

Responses

12.232 In its supplementary consultation paper, the Commission asked whether the requirement to prove injury should be removed for victims of certain crimes and if so, which categories of victim.^[310]

12.233 In a number of submissions and consultations, stakeholders proposed removing the requirement to prove injury or creating a presumption of injury for particular cohorts of victims.^[311] This is because the harms caused by certain forms of violence are well known and it can be traumatising for these victims to be required to prove injury.^[312] Some stakeholders also considered that removing the requirement to prove injury for certain offences would help address issues of timeliness.^[313]

12.234 However, stakeholders’ views varied as to which categories of victim should be exempt from the proof of injury requirement or subject to a presumption of injury. The most common proposals were to remove the requirement to prove injury for victims of child sexual abuse,^[314] sexual assault generally^[315] and/or family violence.^[316] A number of stakeholders submitted that removing the requirement to prove injury for these victims would also avoid some of the difficulties that these victims often experience with the causation requirement.^[317] The causation requirement is discussed in more detail below.

12.235 Stakeholders also proposed that the requirement to prove injury be removed for:

• ‘category A offences’ under the VOCAA (attempted murder and rape)^[318]

• physical assault^[319]

• victims of proven offences^[320]

• all victims of an act of violence.^[321]

12.236 In addition, although the VOCAA does not expressly require related victims to prove the injury they suffered as a result of the primary victim’s death, it would appear from stakeholder submissions that, in practice, such victims may be required to prove injury and, according to some stakeholders, this requirement should be removed.^[322] For example, Anglicare Victoria Victims Assistance Program submitted that it ‘is traumatising for [related] victims to attend a psychologist for diagnosis of injury’.^[323]

12.237 Most stakeholders who submitted that certain victims should not be required to prove injury considered that this requirement should be removed entirely for these victims.^[324] However, other stakeholders considered that there should be a presumption of injury instead.^[325] A minority of stakeholders were of the view that the threshold of injury should instead be lowered for certain victims to a significant adverse effect^[326] or an adverse effect.^[327]

12.238 In the absence of a requirement to prove injury, some stakeholders proposed that the seriousness of the offence could be considered when determining award amounts. For example, some submissions considered that if the proof of injury requirement were removed for sexual offences or family violence, awards could be determined based on the type of sexual offence^[328] or the severity of the family violence.^[329]

12.239 Alternatively, Schembri & Co Lawyers submitted that there could be a baseline award for certain victims, such as family violence victims, which these victims could access without proving injury. However, awards could be increased if evidence of physical or psychological injury is provided.^[330]

Discussion and recommendations

12.240 The Commission acknowledges stakeholder views regarding the significant psychological harm suffered by victims of sexual assault and family violence,^[331] and the significant barriers that may prevent these victims from accessing support and collecting documentary evidence to prove they have suffered an injury.^[332] These barriers include feelings of shame, fear of perpetrator retaliation and historically poor recognition of such violence as criminal. As the Australian and New South Wales Law Reform Commissions noted in their Final Report Family Violence—A National Legal Response, only a small percentage of sexual assaults are reported to police.^[333] The Commissions also noted that victims of sexual or physical violence perpetrated by their partners are less likely to report to police than victims who did not know the perpetrator.^[334]

12.241 The Commission also acknowledges the particular vulnerability of children and stakeholder concerns regarding the impact on them of witnessing crimes of family violence and sexual abuse.^[335]

12.242 Accordingly, the Commission considers that the following victims should not be required to prove injury for the purposes of the proposed Act:

• victims of a criminal act that would constitute a sexual offence

• victims of a criminal act that occurred in the context of family violence, as defined by the FVPA

• victims who witnessed, heard or were otherwise exposed to any of the above criminal acts and were under 18 at the time of the exposure.

12.243 In the Commission’s view, such victims should be deemed to have suffered injury. However, the Commission considers that the severity of these victims’ injuries should be a relevant factor in determining the quantum of the recovery payment awarded. This is discussed in Chapter 13.

12.244 As Forster notes in relation to family violence, deeming injury has ‘the potential to provide victims of family violence with an easier and less traumatic means of accessing compensation’.^[336]

12.245 The Commission considers that children’s particular vulnerability also weighs in favour of removing the requirement to prove injury where they have witnessed or otherwise been exposed to crimes of family violence and sexual abuse. This would help ensure that children who are exposed to family violence are recognised as victims in their own right, as recommended by the Royal Commission into Family Violence.^[337]

12.246 The Commission notes that with respect to sexual offences, its proposed approach is similar to the approach in the Northern Territory. The Victims of Crime Assistance Regulations 2007 (NT) prescribe a range of sexual offences that constitute ‘compensable violent acts’ for which a lump sum can be awarded to a victim without evidence of injury.^[338]

12.247 Although there may be other types of crime against the person where the victim’s injury could be deemed by virtue of the seriousness of the crime, the Commission considers that victims of all other crimes should continue to be required to prove injury. This is because the psychological harm caused by sexual and family violence offences is well established, as are the barriers faced by many victims of these offences in disclosing or reporting these crimes, and therefore in proving injury. In contrast, the basis upon which injury might be deemed for victims of other crimes is less clear.

12.248 The Commission also acknowledges stakeholder views that close relations of deceased victims of a criminal act should not be required to prove injury. The Commission notes that the VOCAA does not expressly require proof of injury from such victims. Similarly, under the NSW scheme, immediate family members of a person who died as a result of a criminal act are not required to prove injury.^[339] However, in light of the Commission’s proposal to significantly expand the types of relationship that may give rise to eligibility under the scheme, the Commission considers that in the interests of scheme sustainability, victims should be required to prove they have suffered an injury where their claim is based on their relationship to a person who died or was injured as a result of a criminal act.

12.249 In the Commission’s view, removing the requirement to prove injury for some victims would also address some of the difficulties these victims currently experience with satisfying the causation requirement—namely, the requirement that the act of violence directly resulted in the injury. The challenges associated with the existing causation requirement are discussed below.

Recommendation—proof of injury

31 The proposed Act should provide that an applicant must provide evidence that they have suffered an injury as a result of the criminal act, except where the applicant:

(a) was the victim of a criminal act that would constitute a sexual offence

(b) was the victim of a criminal act that occurred in the context of family violence, as defined by the Family Violence Protection Act 2008 (Vic), or

(c) witnessed, heard or was otherwise exposed to any of the above criminal acts and was under the age of 18 at the time of the exposure.

Causation

Current law

12.250 To be eligible for assistance under the VOCAA, an act of violence must ‘directly result’ in the victim’s injury, death or significant adverse effect.^[340]

12.251 However, there is a lack of clarity regarding what is required to establish this causal connection. VCAT frequently uses the ‘but for’ test, which requires VCAT to ask: ‘But for the act of violence, would the victim have died, been injured, or suffered the significant adverse effect?’^[341]

12.252 However, in JM v Victims of Crime Assistance Tribunal,^[342] the VCAT member reserved the question whether the ‘but for’ test is the only applicable test for establishing causation:

It is unnecessary for me to decide whether satisfaction of the ‘but for’ test is in fact a prerequisite. I add by way of comment that the argument in support of the ‘but for’ test seems compelling.^[343]

Responses

12.253 In its supplementary consultation paper, the Commission asked how the requirement for victims to establish that their injury was the direct result of the act of violence affects victims, and whether this requirement should be amended.^[344]

12.254 In response, a number of stakeholders raised concerns about the requirement that a victim’s injury be the direct result of an act of violence.^[345] In particular, stakeholders told the Commission that the causation requirement can cause difficulties for victims where other factors have also contributed to their injury.^[346] For example, the applicant in NF v Victims of Crime Assistance Tribunal^[347] sought assistance on the basis that he had witnessed his father beat his stepfather to death. VOCAT initially refused his claim for counselling costs on the grounds that the incident in question was only one of many causes of the difficulties that he faced. The other causes to which VOCAT pointed included a sexual assault, a period in residential care, and a period in youth detention. However, this decision was later set aside by VCAT, which found that the applicant’s ‘need for counselling [was] directly attributable to the act of violence, even if other layers of trauma in his life may have heightened the need’.^[348]

12.255 In addition, stakeholders noted that the causation test under the VOCAA can be difficult to satisfy where an act of violence exacerbates a victim’s pre-existing injury.^[349] Stakeholders told the Commission that this is particularly an issue in relation to psychological injury, despite the fact that the current definition of injury includes ‘exacerbation of a mental illness or disorder’.^[350]

12.256 One stakeholder told the Commission that the causation requirement can create barriers to accessing assistance where a victim goes on ‘to lead a life marred by other psychological torments’.^[351] For example, the Commission was told that victims of historical sexual abuse may later engage in substance abuse.^[352]

12.257 In light of the barriers created for some victims by the causation requirement, in their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposed ‘easing’ the causation requirement so that the act of violence need only have contributed to the injury, rather than having been the sole or direct cause of it.^[353]

Discussion and recommendations

12.258 The Commission considers that removing the requirement to prove injury for certain categories of victim would help address certain issues associated with the current causation requirement under the VOCAA, including those difficulties faced by victims of sexual offences in establishing causation.

12.259 However, the Commission acknowledges that if the current causation test were retained, some victims who would be required to prove injury under the proposed Act may struggle to satisfy the proposed causation test if they suffered psychological or psychiatric harm and there were multiple contributing factors to that harm.^[354] The Commission acknowledges the lack of clarity under the VOCAA regarding whether or not the ‘but for’ test will be applied to determine whether the injury suffered was a direct result of the act of violence.

12.260 To address these issues, the Commission considers that under the proposed Act, the word ‘directly’ should be removed from the causation requirement and that a victim need only establish that they suffered an injury as a result of a criminal act.

12.261 In the Commission’s view, this approach would represent a return to Victoria’s former approach to causation in relation to victims of crime assistance. Both the VOCAA’s predecessor—the Criminal Injuries Compensation Act 1972 (Vic) and the Criminal Injuries Compensation Act 1983 (Vic)—only required a victim to have suffered the injury as a result of the act of violence, and did not include the word ‘direct’.^[355]

12.262 The Commission considers that reverting to the previous formulation of the causation test would lower the causation threshold and make it easier for victims to establish injury where there were multiple contributing factors.

12.263 In response to the views expressed by some stakeholders, the Commission also considered the options of including a rebuttable presumption of a causal connection, or deeming a causal connection, for certain criminal acts.^[356] However, the Commission considers that such an approach is unnecessary in light of the Commission’s proposal that victims of certain crimes— including sexual offences and certain offences occurring in the context of family violence—should not be required to prove injury.

Recommendation—causation

32 The proposed Act should provide that where an applicant is required to prove injury, it is sufficient if the applicant can establish that the victim’s injury was a result of the criminal act.

1. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) Ch 6; Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5.

   ↑

2. Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

   ↑

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

   ↑

4. Victims of Crime Assistance Act 1996 (Vic) s 18.

   ↑

5. Ibid ss 7(1), 8A(1).

   ↑

6. Ibid s 7(2).

   ↑

7. Ibid.

   ↑

8. Smith v Victims of Crime Assistance Tribunal [2003] VCAT 1489 (22 October 2003) [25].

   ↑

9. In Will v Victims of Crime Assistance Tribunal [2011] VCAT 1739 (13 September 2011) VCAT held at [14] that section 7(2)(c) is ‘designed to cover a person who comes to the aid of someone being attacked or if after the attack they immediately step in and do things to assist the victim … it does not refer to an act where a mother is sitting beside the bedside of her son’.

   ↑

10. See, eg, Smith v Victims of Crime Assistance Tribunal [2003] VCAT 1489 (22 October 2003) in which VCAT held at [8] that assisting a victim of an act of violence by staying with them, cleaning their wounds and putting a child to bed was ‘no more than offering first aid … after the event’ and did not constitute aid within the meaning of section 7(2)(c), and at [23] that to consider otherwise would ‘mean any ambulance officer or paramedic giving assistance … would be entitled as a primary victim’, which was ‘clearly not an intended consequence when the legislative history was considered’.

    ↑

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

    ↑

12. Ibid s 9(2).

    ↑

13. [2011] VCAT 1739 (13 September 2011).

    ↑

14. Ibid [18]–[20].

    ↑

15. [2012] VCAT 1740 (16 November 2012).

    ↑

16. The applicant suffered from chronic post-traumatic stress disorder and substance abuse: ibid [40]–[46].

    ↑

17. [2018] VCAT 614.

    ↑

18. Ibid [122].

    ↑

19. Ibid [120].

    ↑

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

    ↑

21. See Family Violence Protection Act 2008 (Vic) s 5(1).

    ↑

22. Victims of Crime Assistance Act 1996 (Vic) s 11(1).

    ↑

23. Ibid s 3(1).

    ↑

24. Ibid.

    ↑

25. Ibid s 11(1).

    ↑

26. See, eg, Reid v Victims of Crime Assistance Tribunal [2002] VCAT 373 (24 May 2002) in which VCAT found at [23]–[25] that the aunt of a primary victim who had been murdered did not have an ‘intimate personal relationship’ with the primary victim, and therefore was not a ‘related victim’, because they had had infrequent contact in the years preceding the primary victim’s death.

    ↑

27. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

    ↑

28. Ibid.

    ↑

29. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) Ch 6, 55, Questions 1–3.

    ↑

30. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 52, Questions 1–2.

    ↑

31. Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

    ↑

32. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 14 (Inner Melbourne Community Legal), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 22 (YourLawyer), 25 (Public Health Association of Australia), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 33 (Eastern Community Legal Centre), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 4 (Victim, Witness and Court Support), 6 (Victims’ Advocacy Organisations), 10 (Regional Consultation—Morwell Victim Support Agencies), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

33. Submission 43 (knowmore).

    ↑

34. Submissions 9 (Alannah & Madeline Foundation), 14 (Inner Melbourne Community Legal), 22 (YourLawyer), 25 (Public Health Association of Australia), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 33 (Eastern Community Legal Centre), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 13 (Regional Consultation—Mildura Legal Professionals), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

35. Submission 41 (Springvale Monash Legal Service); Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

36. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

    ↑

37. Submission 41 (Springvale Monash Legal Service).

    ↑

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

    ↑

39. Ibid.

    ↑

40. Submissions 18 (cohealth), 22 (YourLawyer), 28 (South Metropolitan Integrated Family Violence Executive); Consultations 4 (Victim, Witness and Court Support), 15 (Regional Consultation—Ballarat Victim Support Agencies). Note that these proposals were made in relation to the ‘secondary victim’ category, except Submission 22 (YourLawyer), which did not make this recommendation in connection to any specific victim category.

    ↑

41. Submission 22 (YourLawyer).

    ↑

42. Submissions 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria). This is the approach in the Northern Territory, where the definition of ‘secondary victim’ includes the child, step-child or child under guardianship of the primary victim, in addition to the parents, step-parents and guardian of the primary victim: Victims of Crime Assistance Act 2006 (NT) ss 11(2)(a)–(b).

    ↑

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

    ↑

44. Submission 49 (Victims of Crime Commissioner, Victoria). See also submission 18 (cohealth), although not specifically in relation to secondary victims.

    ↑

45. Submission 37 (safe steps Family Violence Response Centre); Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies). Consultation 4 (Victim, Witness and Court Support) also noted difficulties experienced by parents of adult children in accessing assistance.

    ↑

46. Submission 35 (Brockway Legal).

    ↑

47. Submissions 35 (Brockway Legal), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

48. Submissions 25 (Public Health Association of Australia), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

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

    ↑

50. Consultations 9 (Domestic Violence Victoria Members), 18 (PartnerSPEAK).

    ↑

51. Consultation 9 (Domestic Violence Victoria Members).

    ↑

52. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW). See also consultation 18 (PartnerSPEAK).

    ↑

53. Submissions 15 (Merri Health Victims Assistance Program), 31 (Victorian Council of Social Service); Consultations 4 (Victim, Witness and Court Support), 11 (Regional Consultation —Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals).

    ↑

54. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre), 54 (Victorian Gay and Lesbian Rights Lobby).

    ↑

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

    ↑

56. Submission 54 (Victorian Gay and Lesbian Rights Lobby).

    ↑

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

    ↑

58. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria). However, this submission was made in the context of the ‘secondary victim’ category.

    ↑

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

    ↑

60. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

    ↑

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

    ↑

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

    ↑

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

    ↑

64. Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals). See generally Eleanor Bourke and Colin Bourke, ‘Aboriginal Families in Australia’ in Robyn Hartley (ed) Families and Cultural Diversity in Australia (Australian Institute of Family Studies, 1995) <https://aifs.gov.au/publications/families-and-cultural-diversity-australia/3-aboriginal-families-australia>.

    ↑

65. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria). Note this submission was made in relation to ‘secondary victims’.

    ↑

66. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre). Note this proposal was also made in relation to ‘secondary victims’ in Submissions 25 (Public Health Association of Australia) and 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

67. Consultations 4 (Victim, Witness and Court Support), 6 (Victims’ Advocacy Organisations), 9 (Domestic Violence Victoria Members).

    ↑

68. Consultations 4 (Victim, Witness and Court Support), 6 (Victims’ Advocacy Organisations).

    ↑

69. Consultation 6 (Victims’ Advocacy Organisations).

    ↑

70. Consultation 9 (Domestic Violence Victoria Members).

    ↑

71. Victims of Crime Assistance Act 1996 (Vic) s 8A.

    ↑

72. This would retain the approach under the VOCAA, which provides that a primary victim includes a person who is injured or dies as a direct result of trying to arrest a perpetrator of an act of violence: Victims of Crime Assistance Act 1996 (Vic) s 7(2).

    ↑

73. This would retain the approach under the VOCAA, which provides that a primary victim includes a person who is injured or dies as a direct result of trying to prevent an act of violence: Victims of Crime Assistance Act 1996 (Vic) s 7(2). However, it would also include a person who unintentionally prevented an act of violence.

    ↑

74. Under the VOCAA, a secondary victim is a person who is present at the scene of an act of violence and is injured as a direct result of witnessing that act. Secondary victims are also persons who are the parent or guardian of a primary victim who is under 18 at the time of the act of violence, and they are injured as a direct result of subsequently becoming aware of the act of violence committed against their child: Victims of Crime Assistance Act 1996 (Vic) s 9.

    ↑

75. Under the VOCAA, a related victim is a person who is ‘close family member’ or dependent of a primary victim, or who had an ‘intimate personal relationship’ with a primary victim: Victims of Crime Assistance Act 1996 (Vic) s 11. ‘Close family member’ is defined as the spouse of the victim; parent, guardian or step-parent of the victim; child, step-child of the victim or a child of whom the victim is the guardian; or a brother, sister, step-brother or step-sister of the victim: Victims of Crime Assistance Act 1996 (Vic) s 3(1). ‘Intimate personal relationship’ is not defined.

    ↑

76. Australian Institute of Family Studies, Australian Government, ‘Ripple Effects’ of Sexual Assault, ACSSA Issue No 7 (Australian Centre for the Study of Sexual Assault, 2007) <https://aifs.gov.au/publications/ripple-effects-sexual-assault/secondary-victims-sexual-assault>. See also David Riggs and Dean Kilpatrick, ‘Family and Friends: Indirect Victimization by Crime’ in Arthur Lurigio, Wesley Skogan and Robert Davis (eds), Victims of Crime: Problems, Policies and Programs (Sage, 1990) 122; Rob Davis, Bruce Taylor and Sarah Bench, ‘Impact of Sexual and Nonsexual Assault on Secondary Victims’ (1995) 10(1) Violence and Victims 73; Charles Figley and Rolf Kleber, ‘Beyond the “Victim”: Secondary Traumatic Stress’ in Rolf Kleber, Charles Figley and Berthold Gersons (eds), Beyond Trauma: Cultural and Societal Dynamics (Plenum Press, 1995) 75.

    ↑

77. See, eg, Australian Institute of Family Studies, Australian Government, ‘Ripple Effects’ of Sexual Assault, ACSSA Issue No 7 (Australian Centre for the Study of Sexual Assault, 2007) <https://aifs.gov.au/publications/ripple-effects-sexual-assault/secondary-victims-sexual-assault>; Diane Daane, ‘The Ripple Effects: Secondary Sexual Assault Survivors’ in Frances Reddington and Betsy Wright Kreisel (eds), Sexual Assault: The Victims, the Perpetrators and the Criminal Justice System (Carolina Academic Press, 2005), 131.

    ↑

78. Family Violence Protection Act 2008 (Vic) s 9(1) provides that: ‘domestic partner’ of a person means (a) a person who is in a registered relationship within the meaning of the Relationships Act 2008 (Vic) with the person; or an adult to whom the person is not married but with whom the person is in a relationship as a couple where one or each of the persons provides personal or financial commitment and support of a domestic nature for the support of the other person. Section 9(2) provides that ‘for the purposes of subsection (1)(b), the following is irrelevant—(a) the genders of the persons; (b) whether or not the persons are living under the same roof. Section 9(3) provides that ‘for the purposes of subsection (1)(b), a person is not the domestic partner of another person— (a) if the person provides domestic support and personal care to the person—(i) for fee or reward; or (ii) on behalf of another person or an organisation, including a government or non-government agency, a body corporate or a charitable or benevolent organisation; or (b) merely because they are co-tenants’. Section 9(4): ‘In deciding whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in the Relationships Act 2008 (Vic) s 35(2) as may be relevant in a particular case.’

    ↑

79. Family Violence Protection Act 2008 (Vic) s 8(3). These factors are discussed at [12.87].

    ↑

80. Ibid. These factors are discussed at [12.87].

    ↑

81. Ibid s 8(3)(d).

    ↑

82. Victims of Crime Assistance Act 2009 (Qld) sch 3; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 15(2)(b)(ii).

    ↑

83. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre), 54 (Victorian Gay and Lesbian Rights Lobby).

    ↑

84. See, eg, Victims of Crime Assistance Act 1996 (Vic) s10A which concerns additional assistance available to secondary victims, and includes ‘domestic partner’ alongside ‘spouse’ in its definition of ‘family member’. For the definition of ‘domestic partner’, see ss 3(1)–(4). See also Reid v Victims of Crime Assistance Tribunal [2002] VCAT 373 (24 May 2002) [10], noting this divergence.

    ↑

85. Victims of Crime Assistance Act 2006 (NT) s 13(1)(a); Victims Rights and Support Act 2013 (NSW) s 22(3)(b); Criminal Injuries Compensation Act 2003 (WA) s 4(1).

    ↑

86. Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 13(b)(i), 14(b)(i) and 17(1)(a); Victims of Crime Act 2001 (SA) s 17(2)(a).

    ↑

87. Family Violence Protection Act 2008 (Vic) s 9(1). See footnote 87 above for a restatement of the definition in this provision.

    ↑

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

    ↑

89. Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 13(b)(i) and (ii), 14(b)(i) and (ii), and 17(1)(a).

    ↑

90. Ibid ‘Dictionary’; Family Violence Act 2016 (ACT) s 10.

    ↑

91. Family Violence Act 2016 (ACT) s 10(2).

    ↑

92. Family Violence Protection Act 2008 (Vic) s 8(3).

    ↑

93. See ibid s 8(3)(a).

    ↑

94. See ibid s 8(3)(b).

    ↑

95. See ibid s 8(3)(c).

    ↑

96. See ibid s 8(3)(d).

    ↑

97. See ibid s 8(3)(e).

    ↑

98. See ibid s 8(3)(f).

    ↑

99. See ibid s 8(3)(g).

    ↑

100. See ibid s 8(3)(h).

     ↑

101. See ibid s 8(3)(i).

     ↑

102. See submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee). In one case, an aunt was denied assistance after the murder of her niece despite having at certain times ‘carried out the role that would normally have been assumed by the victim’s mother’: Reid v Victims of Crime Assistance Tribunal [2002] VCAT 373 (24 May 2002) [20].

     ↑

103. See Victims of Crime Assistance Act 1996 (Vic) s 3(1).

     ↑

104. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 106–12; Kelly Richards, Children’s Exposure to Domestic Violence in Australia, Trends and Issues in Crime and Criminal Justice No 419 (Australian Institute of Criminology, 2011) 1–3; Monica Campo, Children’s Exposure to Domestic and Family Violence: Key Issues and Responses, CFCA Paper No 36 (Australian Institute of Family Studies, 2015) 6–8.

     ↑

105. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 142.

     ↑

106. Family Violence Protection Act 2008 (Vic) s 5(1)(b).

     ↑

107. Family Law Act 1975 (Cth) ss 4(1), 4AB(3) and (4).

     ↑

108. Submission 41 (Springvale Monash Legal Service).

     ↑

109. Victims of Crime Assistance Act 1996 (Vic) s 7(2).

     ↑

110. Consultation 18 (PartnerSPEAK).

     ↑

111. Chris Trotter, Catherine Flynn and Susan Baidawi, ‘The Impact of Parental Incarceration on Children’s Care: Identifying Good Practice Principles from the Perspective of Imprisoned Primary Carer Parents’ (2017) 22(2) Child & Family Social Work 952, 953.

     ↑

112. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW). See also consultation 18 (PartnerSPEAK).

     ↑

113. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

     ↑

114. Ibid.

     ↑

115. Ibid.

     ↑

116. Sexual offences contained in subdivisions 8D and 8F of division 1 of part 1 of the Crimes Act 1958 (Vic) were inserted into the VOCAA’s definition of ‘relevant offence’ by the Justice Legislation Amendment (Victims) Act 2018 (Vic) s 22. This amendment commenced on 5 April 2018.

     ↑

117. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

     ↑

118. Ibid.

     ↑

119. Ibid. See, eg, BVB v Victims of Crime Assistance Tribunal (2010) 27 VR 425, in which the fact that the perpetrators were children did not prevent the primary victim from making an application for assistance, and Gulcan v Victims of Crime Assistance Tribunal [2007] VCAT 642 (24 April 2007), in which the fact that the driver of a car was suffering an epileptic fit when they struck the primary victim did not stand in the way of the primary victim’s claim.

     ↑

120. See Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004) [15]; Purcell v Victims of Crime Assistance Tribunal (3 June 2011) [18]; Matthews v Victims of Crime Assistance Tribunal [2012] VCAT 1099 (27 July 2012) [18]–[19].

     ↑

121. [2004] VCAT 1092 (8 June 2004).

     ↑

122. [2012] VCAT 1099 (27 July 2012).

     ↑

123. [2010] VCAT 2078 (23 December 2010).

     ↑

124. Victims of Crime Assistance Tribunal, cited in ibid [29].

     ↑

125. Ibid [34].

     ↑

126. For further discussion, see Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 58–9.

     ↑

127. Summary Offences Act 1966 (Vic) ss 41A, 41B and 41C. These provisions were inserted by the Summary Offences Amendment (Upskirting) Act 2007 (Vic).

     ↑

128. Family Violence Protection Act 2008 (Vic) s 5.

     ↑

129. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017), Ch 6, 55.

     ↑

130. Ibid.

     ↑

131. Ibid.

     ↑

132. Ibid; Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 61.

     ↑

133. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 61.

     ↑

134. See, eg, Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

     ↑

135. Submissions 1 (Judicial Advisory Group on Family Violence), 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 6 (Forgetmenot Foundation Inc.), 8 (Victim Survivors’ Advisory Council), 10 (Eastern Metropolitan Regional Family Violence Partnership), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 25 (Public Health Association of Australia), 26 (Hume Riverina Community Legal Centre), 27 (Name withheld), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 31 (Victorian Council of Social Service), 32 (Australian Psychological Society), 33 (Eastern Community Legal Centre), 36 (Name withheld), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 5 (Victims of Crime Commissioner, Victoria), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 18 (PartnerSPEAK), 19 (RMIT Centre for Innovative Justice), 20 (Academics), 23 (Community Safety Trustee, Victoria), 24 (Slavery Links), 25 (Children’s Court of Victoria).

     ↑

136. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria) instead supported incorporating an expanded range of non-criminal behaviours in the VOCAA to guide the exercise of discretion, such as in relation to determining awards for special financial assistance.

     ↑

137. Submissions 6 (Forgetmenot Foundation Inc.), 8 (Victim Survivors’ Advisory Council), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 31 (Victorian Council of Social Service), 32 (Australian Psychological Society), 33 (Eastern Community Legal Centre), 36 (Name withheld), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 18 (PartnerSPEAK), 19 (RMIT Centre for Innovative Justice), 20 (Academics), 23 (Community Safety Trustee, Victoria).

     ↑

138. Family Violence Protection Act 2008 (Vic) s 5. See, eg, Submissions 8 (Victim Survivors’ Advisory Council), 10 (Eastern Metropolitan Region Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Centre), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 31 (Victorian Council of Social Service), 33 (Eastern Community Legal Centre), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria).

     ↑

139. Submission 24 (Darebin Community Legal Centre).

     ↑

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

     ↑

141. See, eg, Submission 30 (CASA Forum).

     ↑

142. See, eg, Consultations 2 (Legal Professionals—Private Practice), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 14 (Chief Magistrate’s Family Violence Taskforce), 20 (Academics).

     ↑

143. Submissions 1 (Judicial Advisory Group on Family Violence), 5 (Anglicare Victoria Victims Assistance Program), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 2 (Legal Professionals—Private Practice), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 14 (Chief Magistrate’s Family Violence Taskforce), 16 (Regional Consultation—Ballarat Legal Professionals), 20 (Academics), 25 (Children’s Court of Victoria).

     ↑

144. Submissions 1 (Judicial Advisory Group on Family Violence), 31 (Victorian Council of Social Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

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

     ↑

146. See consultation 2 (Legal Professionals—Private Practice).

     ↑

147. Submissions 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 14 (Chief Magistrate’s Family Violence Taskforce).

     ↑

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

     ↑

149. Consultation 20 (Academics).

     ↑

150. Ibid.

     ↑

151. Submission 1 (Judicial Advisory Group on Family Violence).

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

156. Submissions 5 (Anglicare Victoria Victims Assistance Program), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal).

     ↑

157. Submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal).

     ↑

158. Submission 14 (Inner Melbourne Community Legal).

     ↑

159. Submission 11 (Seniors Rights Victoria).

     ↑

160. Submission 5 (Anglicare Victoria Victims Assistance Program).

     ↑

161. Submissions 5 (Anglicare Victoria Victims Assistance Program), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal).

     ↑

162. Submission 1 (Judicial Advisory Group on Family Violence); Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

163. Submission 43 (Knowmore, note discussing child abuse only); Consultation 2 (Legal Professionals—Private Practice). See also submissions 19 (Schembri & Co Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

164. Submissions 19 (Schembri & Co Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

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

     ↑

166. Ibid.

     ↑

167. Submission 11 (Seniors Rights Victoria).

     ↑

168. Submissions 14 (Inner Melbourne Community Legal), 43 (knowmore).

     ↑

169. Submission 11 (Seniors Rights Victoria).

     ↑

170. Submission 14 (Inner Melbourne Community Legal).

     ↑

171. Ibid.

     ↑

172. Submission 43 (knowmore).

     ↑

173. Ibid, citing Limitation of Actions Act 1958 (Vic) pt IIA, div 5.

     ↑

174. Submissions 14 (Inner Melbourne Community Legal), 16 (Project Respect), 37 (safe steps Family Violence Response Centre), 43 (knowmore), 52 (Slavery Links); Consultations 3 (Legal Professionals—Community Legal Centres), 15 (Regional Consultation—Ballarat Victim Support Agencies), 18 (PartnerSPEAK).

     ↑

175. Submissions 14 (Inner Melbourne Community Legal), 16 (Project Respect), 37 (safe steps Family Violence Response Centre), 43 (knowmore), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 3 (Legal Professionals—Community Legal Centres), 18 (PartnerSPEAK).

     ↑

176. Submission 16 (Project Respect). See Sex Work Act 1994 (Vic) s 18A(2).

     ↑

177. Submissions 13 (Adviceline Injury Lawyers), 16 (Project Respect), 38 (Ryan Carlisle Thomas Lawyers); Consultation 7 (Family Violence and Advocacy Organisations). In a number of consultation meetings, stakeholders also noted the difficulties associated with victims of property offences being unable to make an application, but did not explicitly propose broadening the definition to include such victims: see Consultations 4 (Victim, Witness and Court Support), 12 (Regional Consultation—Mildura Victim Support Agencies), 15 (Regional Consultation—Ballarat Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 23 (Community Safety Trustee, Victoria).

     ↑

178. Submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 7 (Family Violence and Advocacy Organisations). Stakeholders expressed concern about the exclusion of arson during consultation 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

179. Submissions 13 (Adviceline Injury Lawyers), 38 (Ryan Carlisle Thomas Lawyers). Concern was expressed about victims of aggravated burglaries in Submission 18 (cohealth) and Consultations 4 (Victim, Witness and Court Support), 15 (Regional Consultation—Ballarat Victim Support Agencies) and 23 (Community Safety Trustee, Victoria).

     ↑

180. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

181. Ibid.

     ↑

182. Ibid.

     ↑

183. Submissions 13 (Adviceline Injury Lawyers).

     ↑

184. Submission 14 (Inner Melbourne Community Legal). See also submission 37 (safe steps Family Violence Response Centre).

     ↑

185. Submissions 27 (Name withheld), 33 (Eastern Community Legal Centre), 34 (Dr Cassandra Cross).

     ↑

186. (2008) 237 CLR 1 [28]. See submission 52 (Slavery Links).

     ↑

187. Submissions 6 (Forgetmenot Foundation Inc.), 27 (Name withheld).

     ↑

188. Submission 6 (Forgetmenot Foundation Inc.).

     ↑

189. Submission 27 (Name withheld).

     ↑

190. Submission 34 (Dr Cassandra Cross).

     ↑

191. Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131 (2017) 19.

     ↑

192. 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) vol 1, 127–8.

     ↑

193. See, eg, discussion about variable responses to family violence by Victoria Police, which was described by Assistant Commissioner Luke Cornelius in 2016 as ‘a bit of a lottery’: Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 3, 8.

     ↑

194. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 52–5.

     ↑

195. See, eg, Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 106–12.

     ↑

196. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 37.

     ↑

197. See Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) s 29.

     ↑

198. Victims of Crime Assistance Act 2009 (Qld) s 25(2). The Act provides that ‘domestic violence’ has the same meaning as in the Domestic and Family Violence Protection Act 2012 (Qld): Victims of Crime Assistance Act 2009 (Qld), sch 3 (dictionary); Domestic and Family Violence Protection Act 2012 (Qld) s 8.

     ↑

199. Family Violence Act 2004 (Tas) ss 8–9.

     ↑

200. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 1395 (Recommendation 29–5). The Australian Law Reform Commission reiterated this recommendation in its submission to the Victorian Law Reform Commission in relation to the Victims of Crime in the Criminal Trial Process reference: Australian Law Reform Commission, Submission No 1 to the Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, 18 August 2015, 2. For the Commission’s consideration of this recommendation in the first consultation paper, see Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 51–4.

     ↑

201. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 285.

     ↑

202. These offences are outlined above at [12.112] and include inchoate offences; under the VOCAA, an ‘act of violence’ includes conspiracy, incitement or an attempt to commit a relevant offence: s 3(1). The Commission proposes retaining these inchoate offences under the proposed Act, as they may have a significant impact on victims, particularly in the context of family violence.

     ↑

203. Submission 34 (Dr Cassandra Cross).

     ↑

204. The Commission notes that the Victims of Crime (Financial Assistance) Act 2016 (ACT) contains an equivalent provision at s 7(1)(b)(ii).

     ↑

205. Summary Offences Act 1966 (Vic) s 41A.

     ↑

206. Ibid s 41B.

     ↑

207. Ibid s 41C.

     ↑

208. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 57–9.

     ↑

209. Nicola Henry, Anastasia Powell and Asher Flynn, Not Just ‘Revenge Pornography’: Australians’ Experiences of Image-Based Abuse, Summary Report (RMIT University, 2017) 5.

     ↑

210. Crimes Act 1958 (Vic) ss 49F (for children under 16), 49G (for a child aged 16 or 17 who is under that person’s care, supervision or authority).

     ↑

211. Ibid ss 49S (facilitating a sexual offence against a child), 49K (encouraging a child under 16 to engage in or be involved in sexual activity), 49L (encouraging a child aged 16 or 17 under that person’s care, supervision or authority to engage in or be involved in sexual activity).

     ↑

212. Ibid s 49M.

     ↑

213. 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) vol 2, 467–70.

     ↑

214. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 15. See also Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 16.

     ↑

215. Victims of Crime (Financial Assistance) Act 2016 (ACT) div 1.2.1 pt 1.2 sch 1. However, the Act does not include Part 3A offences which relate to ‘intimate image abuse’.

     ↑

216. Crimes Act 1900 (ACT) s 61B.

     ↑

217. Ibid s 66.

     ↑

218. For example, as part of its 2015 reference on the role of victims of crime in the criminal trial process, the Commission received a submission from Victoria Police noting that victims of property offences tend to suffer the same psychological, emotional and social impacts as victims of crimes against the person: Victoria Police, Submission No 26 to the Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, 12 October 2015, 31–2.

     ↑

219. Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004) [6]–[7].

     ↑

220. See, eg, Megan Bailey, ‘Casey Family Knocked Back for Victims Compensation Because They Weren’t Assaulted in Apex Raid’, Herald Sun (online) 7 September 2016 <www.heraldsun.com.au/leader/south-east/casey-family-knocked-back-for-victims-compensation-because-they-werent-assaulted-in-apex-raid/news-story/5afedefc0a5b2e5ea32df385c3c09d23>.

     ↑

221. Ibid.

     ↑

222. Crimes Act 1958 (Vic) ss 77A, 77B.

     ↑

223. Ibid s 197(6).

     ↑

224. Ibid s 77.

     ↑

225. Ibid s 77A.

     ↑

226. Ibid s 77B.

     ↑

227. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 245–6.

     ↑

228. Ibid 246.

     ↑

229. Dianne Hadden, Submission No 21 to Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, 2015, 11.

     ↑

230. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 246.

     ↑

231. Ibid 245.

     ↑

232. Ibid.

     ↑

233. Submissions 13 (Adviceline Injury Lawyers), 16 (Project Respect), 38 (Ryan Carlisle Thomas Lawyers); Consultation 7 (Family Violence and Advocacy Organisations). In a number of consultation meetings, stakeholders noted the difficulties associated with victims of property offences being unable to make an application, but did not explicitly propose broadening the definition to include such victims: Consultations 4 (Victim, Witness and Court Support), 12 (Regional Consultation—Mildura Victim Support Agencies), 15 (Regional Consultation—Ballarat Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 23 (Community Safety Trustee, Victoria).

     ↑

234. Family Violence Protection Act 2008 (Vic) s 5.

     ↑

235. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 9(1)(c), div 1.2.2 pt 1.2 sch 1.

     ↑

236. Ibid div 1.2.2 pt 1.2 sch 1.

     ↑

237. Explanatory Statement, Victims of Crime (Financial Assistance) Bill 2016 (ACT), 11.

     ↑

238. Family Violence Protection Act 2008 (Vic) s 123.

     ↑

239. Ibid s 123A.

     ↑

240. Ibid s 125A.

     ↑

241. Crimes Act 1958 (Vic) s 197.

     ↑

242. Ibid s 198.

     ↑

243. Ibid s 199.

     ↑

244. Ibid s 76.

     ↑

245. Ibid s 74.

     ↑

246. Ibid s 81.

     ↑

247. Ibid s 82.

     ↑

248. Ibid s 87.

     ↑

249. Summary Offences Act 1966 (Vic) s 38.

     ↑

250. Ibid s 17.

     ↑

251. Victims of Crime Assistance Act 1996 (Vic) ss 7, 9 and 11.

     ↑

252. Ibid s 8A.

     ↑

253. Ibid s 3(1).

     ↑

254. For example, in RBA v Victims of Crime Assistance Tribunal, VCAT accepted that the applicant was a ‘traumatised person’ but found that there was no evidence that she suffered a mental illness or disorder: [2009] VCAT 2225 (26 October 2009) [20].

     ↑

255. [2010] VCAT 2078 (23 December 2010).

     ↑

256. Victims of Crime Assistance Tribunal, cited in AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (23 December 2010) [29].

     ↑

257. Ibid [74]–[75].

     ↑

258. Victims of Crime Assistance Act 1996 (Vic) s 3(2).

     ↑

259. J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [83].

     ↑

260. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

     ↑

261. Ibid s 8A.

     ↑

262. Ibid.

     ↑

263. See interpretation of significant adverse effect and injury: ibid s 3(3).

     ↑

264. Ibid s 9.

     ↑

265. Ibid s 3(1).

     ↑

266. Ibid.

     ↑

267. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) Ch 6, 56.

     ↑

268. Ibid.

     ↑

269. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 65.

     ↑

270. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

271. Submissions 5 (Anglicare Victoria Victims Assistance Program), 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 10 (Eastern Metropolitan Regional Family Violence Partnership), 11 (Seniors Rights Victoria), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 19 (Schembri & Co Lawyers), 23 (Johnstone & Reimer Lawyers), 25 (Public Health Association of Victoria), 26 (Hume Riverina Community Legal Service), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 35 (Brockway Legal) , 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Slavery Links); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 5 (Victims of Crime Commissioner, Victoria), 6 (Victims’ Advocacy Organisations), 9 (Domestic Violence Victoria Members), 14 (Chief Magistrates’ Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies), 18 (PartnerSPEAK), 23 (Community Safety Trustee, Victoria). Concern was also expressed about the injury requirement (without explicitly proposing an amendment) in consultation meetings: see consultations 7 (Family Violence and Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

272. Submissions 5 (Anglicare Victoria Victims Assistance Program), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal), 16 (Project Respect), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 9 (Domestic Violence Victoria Members), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

273. See, eg, Submissions 14 (Inner Melbourne Community Legal), 17 (Centre for Excellence in Child and Family Welfare), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 3 (Legal Professionals—Community Legal Centres), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 12 (Regional Consultation—Mildura Victim Support Agencies), 18 (PartnerSPEAK). See also Consultation 5 (Victims of Crime Commissioner, Victoria).

     ↑

274. Submissions 17 (Centre for Excellence in Child and Family Welfare), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations (Legal Professionals—Community Legal Centres), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 18 (PartnerSPEAK).

     ↑

275. See, eg, Submissions 17 (Centre for Excellence in Child and Family Welfare), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 51 (Law Institute of Victoria).

     ↑

276. Consultation 18 (PartnerSPEAK).

     ↑

277. Submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria); Consultation 6 (Victims of Crime Commissioner, Victoria).

     ↑

278. Submission 41 (Springvale Monash Legal Service).

     ↑

279. Submission 5 (Anglicare Victoria Victims Assistance Program). See also consultation 18 (PartnerSPEAK).

     ↑

280. Submissions 5 (Anglicare Victoria Victims Assistance Program), 8 (Victim Survivors’ Advisory Council), 16 (Project Respect), 18 (cohealth), 32 (Australian Psychological Society), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service); Consultations (Legal Professionals—Private Practice), 8 (Victims Representatives—Victims of Crime Consultative Committee), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

281. Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies). See also submission 15 (Merri Health Victims Assistance Program); Consultations 4 (Victim, Witness and Court Support), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

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

     ↑

283. Ibid.

     ↑

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

     ↑

285. Consultation 14 (Chief Magistrate’s Family Violence Taskforce).

     ↑

286. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 10 (Eastern Metropolitan Regional Family Violence Partnership), 11 (Seniors Rights Victoria), 16 (Project Respect), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 43 (knowmore).

     ↑

287. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 11 (Seniors Rights Victoria), 41 (Springvale Monash Legal Service), 43 (knowmore), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

288. Submissions 9 (Alannah & Madeline Foundation). See also submission 10 (Eastern Metropolitan Regional Family Violence Partnership).

     ↑

289. Submission 11 (Seniors Rights Victoria).

     ↑

290. Submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 43 (knowmore). Submission 16 (Project Respect) also proposed a similar list of injuries.

     ↑

291. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 9(1)(c); Victims of Crime Assistance Act 2009 (Qld) s 27(f).

     ↑

292. Submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service). In addition, submission 10 (Eastern Metropolitan Regional Family Violence Partnership) stated that there should be explicit mention in the VOCAA of the harms experienced by family violence victims.

     ↑

293. Submission 9 (Alannah & Madeline Foundation). Submission 43 (knowmore) discusses sexual offences in the context of child sexual abuse.

     ↑

294. Submission 11 (Seniors Rights Victoria).

     ↑

295. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 43 (knowmore); Consultations 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 16 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

296. Submissions 8 (Victim Survivors’ Advisory Council), 41 (Springvale Monash Legal Service); Consultation 4 (Victim, Witness and Court Support).

     ↑

297. Submission 35 (Brockway Legal).

     ↑

298. See, eg, submission 41 (Springvale Monash Legal Service). For an illustration of a situation of family violence in which the only injury to which the victim could point was property damage, see Purcell v Victims of Crime Assistance Tribunal [2011] VCAT 1463 (3 June 2011). In that case, VCAT rejected the applicant’s claim on the basis that she had only provided evidence of property damage.

     ↑

299. For a discussion of the economic consequences of family violence, see generally Australia’s National Research Organisation for Women’s Safety, Building Effective Policies and Services to Promote Women’s Economic Security Following Domestic Violence, State of Knowledge Paper No 7 (ANROWS Landscapes, 2015).

     ↑

300. For example, 24 submissions proposed broadening the definition of ‘act of violence’ to include non-criminal forms of family, three submissions proposed including property offences in the context of family violence, and three submissions proposed including property offences beyond the family violence context. In contrast, there was support in three submissions and one consultation meeting—submissions 8 (Victim Survivors’ Advisory Council), 35 (Brockway Legal) and 41 (Springvale Monash Legal Service); Consultation 4 (Victim, Witness and Court Support)—for recognising property damage as an injury.

     ↑

301. Submission 49 (Victims of Crime Commissioner, Victoria).

     ↑

302. See, eg, submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 9 (Domestic Violence Victoria Members).

     ↑

303. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program), 23 (Johnstone & Reimer), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers); Consultations 3 (Legal Professionals—Community Legal Centres), 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

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

     ↑

305. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

306. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre); Consultation 9 (Domestic Violence Victoria Members).

     ↑

307. Submission 49 (Victims of Crime Commissioner, Victoria).

     ↑

308. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 49.

     ↑

309. Victims of Crime Assistance Act 1996 (Vic) ss 7, 9. Related victims need to establish that the act of violence directly caused the death of their close relation as the primary victim: s 11.

     ↑

310. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 65.

     ↑

311. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service); Consultations 2 (Legal Professionals—Private Practice), 6 (Victims’ Advocacy Organisations), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 16 (Regional Consultation—Ballarat Legal Professionals). Submission 23 (Johnstone & Reimer Lawyers) proposed lowering the threshold for injury.

     ↑

312. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

313. Consultation 2 (Legal Professionals—Private Practice).

     ↑

314. Submissions 18 (PartnerSPEAK), 38 (Ryan Carlisle Thomas Lawyers); Consultation 2 (Legal Professionals—Private Practice).

     ↑

315. Submissions 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 26 (Hume Riverina Community Legal Service), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers); Consultation 6 (Victims’ Advocacy Organisations).

     ↑

316. Submissions 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

     ↑

317. See, eg, submission 37 (safe steps Family Violence Response Centre).

     ↑

318. Submission 13 (Adviceline Injury Lawyers)

     ↑

319. Submission 14 (Inner Melbourne Community Legal).

     ↑

320. Consultation 17 (Ballarat Legal).

     ↑

321. Submissions 15 (Merri Health Victims Assistance Program), 18 (cohealth), 26 (Hume Riverina Community Legal Service).

     ↑

322. Submissions 5 (Anglicare Victoria Victims Assistance Program), 38 (Ryan Carlisle Thomas Lawyers); Consultation 8 (Victims Representatives—Victims of Crime Consultative Committee). In consultation 16 (Regional Consultation—Ballarat Legal Professionals), stakeholders queried whether it should be necessary for related victims to prove distress.

     ↑

323. Submission 5 (Anglicare Victoria Victims Assistance Program).

     ↑

324. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service); Consultations 2 (Legal Professionals—Private Practice), 6 (Victims’ Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

325. Submissions 18 (cohealth), 19 (Schembri & Co Lawyers), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

326. Submission 41 (Springvale Monash Legal Service). Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

327. Submission 23 (Johnstone & Reimer Lawyers).

     ↑

328. Submission 19 (Schembri & Co Lawyers).

     ↑

329. Submission 41 (Springvale Monash Legal Service).

     ↑

330. Submission 19 (Schembri & Co Lawyers).

     ↑

331. See, eg, submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

332. See, eg, submissions 5 (Anglicare Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health V Victims Assistance Program), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service); Consultations 2 (Legal Professionals—Private Practice), 6 (Victims’ Advocacy Organisations), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

333. Australian Law Reform Commission and New South Wales Law Reform Commission, Final Report Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report 128 (2010) Ch 24.

     ↑

334. Ibid 1100, citing J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings of the Australian Component of the International Violence Against Women Survey (2004) 92, 102.

     ↑

335. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 14 (Inner Melbourne Community Legal), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 22 (YourLawyer), 25 (Public Health Association of Australia), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 33 (Eastern Community Legal Centre), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 51 (Law Institute of Victoria); Consultations 4 (Victim, Witness and Court Support), 6 (Victims’ Advocacy Organisations), 10 (Regional Consultation—Morwell Victim Support Agencies), 14 (Chief Magistrate’’ Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

336. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 207.

     ↑

337. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 142.

     ↑

338. Victims of Crime Assistance Regulations 2007 (NT) reg 17 and sch 1.

     ↑

339. Victims Rights and Support Act 2013 (NSW) s 22(2).

     ↑

340. Victims of Crime Assistance Act 1996 (Vic) s 3(1)(b).

     ↑

341. See, eg, L v Victims of Crime Assistance Tribunal [2004] VCAT 1452 (27 July 2004); JM v Victims of Crime Assistance Tribunal [2002] VCAT 496 (17 June 2002).

     ↑

342. [2002] VCAT 496 (17 June 2002).

     ↑

343. Ibid [14].

     ↑

344. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 68.

     ↑

345. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victoria Victims Assistance Program), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 16 (Regional Consultation—Ballarat Legal Professionals), 20 (Academics).

     ↑

346. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

347. [2012] VCAT 1740 (16 November 2012).

     ↑

348. Ibid [56].

     ↑

349. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

350. Submissions 14 (Inner Melbourne Community Legal); 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 16 (Regional Consultation—Ballarat Legal Professionals). See Victims of Crime Assistance Act 1996 (Vic) s 3(1).

     ↑

351. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

352. Ibid.

     ↑

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

     ↑

354. For further discussion of this barrier, see Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 65.

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355. Both statutes used the phrase ‘as a result of’: Criminal Injuries Compensation Act 1972 (Vic) s 3(1) and Criminal Injuries Compensation Act 1983 (Vic) s 15. For a discussion of the history of the causal test in Victorian legislation for crime victims’ financial assistance, see JM v Victims of Crime Assistance Tribunal [2002] VCAT 496 (17 June 2002) [10]–[11]. The use of the words ‘as a result of’ in the Criminal Injuries Compensation Act 1972 (Vic) led the High Court to decide in Fagan v Crimes Compensation Tribunal that Victoria’s scheme only required a causal connection between the criminal act and the injury, and that this could be satisfied even if there were other contributing factors. Mason and Wilson JJ stated: ‘The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause’: (1982) 150 CLR 666, 673 [17]. In Savage v Crimes Compensation Tribunal, the Victorian Court of Appeal subsequently held that this test applied to the Criminal Injuries Compensation Act 1983 (Vic): [1990] VR 96 [100].

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356. For discussion of these options, see Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 5, 67.

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