Victims of Crime Assistance Act 1996: Report (html)

13. Assistance available under the proposed Act for victims of crime financial assistance

Introduction

13.1 This chapter considers the types of assistance that should be available to victims under the proposed Act. In particular, the chapter considers and makes recommendations about:

• the categories of assistance available for victims

• lump sum payments (currently termed ‘special financial assistance’)

• the quantum (amount) and duration of assistance provided to victims

• the circumstances in which awards may be varied

• ensuring consistency in awards.

13.2 The first and supplementary terms of reference asked the Commission to consider the types of assistance that should be available to victims and the quantum of such assistance.

13.3 In the first terms of reference, the second matter asked the Commission to make recommendations about the ‘categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims’.

13.4 In addition, the first matter in the supplementary terms of reference asked the Commission to make recommendations about how the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) can be simplified to make it easier for applicants to understand all their potential entitlements.

13.5 Regarding the more technical aspects of victims’ entitlements, the fourth, fifth and sixth matters in the supplementary terms of reference asked the Commission to consider whether:

• the categories of assistance and structure and timing of awards are appropriate and adequate to account for the harm arising from crime

• the basis of the formula used to quantify special financial assistance is the most appropriate way to calculate the amount payable by the state

• it is appropriate and fair to award assistance to aid recovery in exceptional circumstances and whether there are other ways to promote the recovery of victims.

13.6 The recommendations in this chapter propose reforming the category and quantum of award provisions under the VOCAA to create six streams of assistance under the proposed Act. The Commission considers this proposed approach would clarify the types of assistance available, better account for the harm suffered by victims and better assist victims in their recovery journey.

New streams of assistance

Current law

13.7 The categories and quantum of awards available to victims of crime depend on the victim category under which an applicant applies for assistance under the VOCAA.

Primary victims

13.8 Under the VOCAA, there are the three main categories of award for primary victims:

1) expenses actually incurred or reasonably likely to be incurred for:

a. reasonable counselling services

b. medical expenses as a direct result of the act of violence

c. loss of earnings of up to $20,000 as a direct result of the act of violence

d. loss or damage to clothing worn at the time of the act of violence

e. safety-related expenses as a direct result of the act of violence.^[1]

2) in exceptional circumstances, an amount for other expenses actually incurred or reasonably likely to be incurred to assist in the primary victim’s recovery^[2] (recovery expenses)

3) special financial assistance, in the form of a lump sum payment, as a symbolic expression by the state of the community’s sympathy and condolence for, and in recognition of, significant adverse effects experienced or suffered by a victim as a result of the crime.^[3]

13.9 Other than claims made for safety-related expenses and clothing worn at the time of the act of violence, the VOCAA expressly provides that primary victims cannot apply for expenses incurred through loss or damage to property.^[4]

Secondary victims

13.10 Under the VOCAA, secondary victims may claim assistance for:

1) expenses actually incurred or reasonably likely to be incurred for

a. reasonable counselling services

b. medical expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of witnessing, or becoming aware of, the act of violence^[5]

2) in exceptional circumstances, an amount of up to $20,000 for loss of earnings suffered or reasonably likely to be suffered as a direct result of the act of violence^[6]

3) in exceptional circumstances, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the secondary victim’s recovery (recovery expenses) where:

a. the secondary victim was under 18 at the time of the act of violence, the primary victim was their family member,^[7] and the secondary victim was injured by witnessing the act of violence^[8]

b. the secondary victim was a parent or guardian of the primary victim, the primary victim was under 18 at the time of the event, and the secondary victim was injured by subsequently becoming aware of the act of violence against their child.^[9]

Related victims

13.11 Under the VOCAA, related victims may claim assistance for:

1) expenses actually incurred or reasonably likely to be incurred for:

a. reasonable counselling services

b. medical expenses actually and reasonably incurred or reasonably likely to be incurred, or funeral expenses as a direct result of the death of the primary victim

c. distress experienced or reasonably likely to be experienced as a direct result of the death of the primary victim

d. loss of money that the related victim, but for the death of the primary victim, would have been reasonably likely to receive from the primary victim during a period of up to two years after that death

e. other expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of the primary victim’s death^[10]

2) in exceptional circumstances, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the related victim’s recovery from the death of the primary victim (recovery expenses).^[11]

13.12 The VOCAA explicitly excludes applications for expenses incurred by related victims through loss or damage to property.^[12]

13.13 The VOCAA also limits the total financial assistance available to all the related victims of any one primary victim, to a total maximum cumulative amount of $100,000. This amount will be reduced by any amount awarded to a person for the funeral expenses of the primary victim (even if that person is not a related victim).^[13] Any one related victim may be awarded a total maximum amount of up to $50,000.^[14]

Awards for recovery expenses

13.14 As noted above, the VOCAA provides that in exceptional circumstances, a primary victim may be awarded an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, to assist in the victim’s recovery from the act of violence (recovery expenses).^[15] Related victims and some secondary victims are also eligible for recovery expenses in certain circumstances.^[16]

13.15 VCAT has interpreted exceptional circumstances to mean ‘unusual, special, out of the ordinary’.^[17] Whether or not such circumstances exist involves considering ‘all of the circumstances, including the injury and the nature of the offending’.^[18]

13.16 To make a claim for recovery expenses, the applicant must also demonstrate that the expense will ‘go to the heart’ of assisting them in their recovery.^[19] The therapeutic value of the particular expense is considered,^[20] as well as whether there is a sufficient connection between the expense and the victim’s recovery.^[21]

13.17 Recovery expenses have been awarded for a diverse range of items and services, including for a gym membership,^[22] Taekwondo classes,^[23] computer training,^[24] equipment for a beauty therapy course,^[25] a laptop^[26] and the removal of tattoos to assist the applicant to obtain employment.^[27]

Special financial assistance

13.18 As noted above, the VOCAA provides that in addition to assistance for specific expenses incurred or reasonably likely to be incurred, primary victims may be awarded special financial assistance.^[28]

13.19 Special financial assistance is a lump sum award that is made as ‘a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.^[29]

13.20 Special financial assistance is classified into four categories: A, B, C and D. These categories are based on the severity of the act of violence, with category A covering the most serious offences and category D the least serious. The minimum and maximum amounts for each category are prescribed in the VOCAA.^[30] They range from a minimum award of $130 for category D to a maximum award of $10,000 for Category A. The award ranges available under each category and the acts of violence that fall within each of them were outlined in detail in the Commission’s supplementary consultation paper.^[31]

13.21 The Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) provide for three circumstances in which a higher maximum award of special financial assistance is available for acts of violence that would ordinarily fall within a category with a lower maximum award.^[32] In practice, this is often described as an ‘uplift’.

Interim awards

13.22 The VOCAA provides that pending the final determination of an application, the Victims of Crime Assistance Tribunal (VOCAT) can make an interim award of assistance in any circumstance that it considers appropriate.^[33] In practice, such awards are usually made for urgent assistance. Interim awards are discussed further below.

Responses

13.23 In its supplementary consultation paper, the Commission asked whether the current categories of award are still appropriate to meet the needs of victims of crime.^[34]

13.24 In response, stakeholders provided views on the operation of some of the existing categories of award and the overall structure of the categories, including whether additional categories should be created. The following sections outline stakeholder

views on:

• the structure of the existing award categories

• the need for new award categories

• key issues with the recovery expenses category of award

• key issues with the special financial assistance category of award.

13.25 Specific issues regarding the operation of the remaining award categories, including quantum and scope of coverage, are discussed below in separate sections.

Structure of the award categories

13.26 A number of stakeholders told the Commission that the existing categories of award should be restructured.^[35] The Commission was told that the current categories are complicated and applicants often require legal advice to understand what types of assistance they may apply for.^[36] Many stakeholders submitted that simplifying and clarifying the scheme structure would reduce reliance on lawyers.^[37]

13.27 In their joint submission, the Magistrates’ Court of Victoria and VOCAT stated that ‘a reduced number of simplified categories could help victims understand more easily what kind of assistance they may apply for without the need to seek legal assistance’.^[38]

13.28 Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the VOCAA should be amended to create one category of award, noting that ‘the categories of award are too prescriptive’ and that some cohorts of victims, such as victims of family violence, are required to ‘retro-fit’ their needs and lived experiences to suit the VOCAA.^[39]

13.29 Women’s Legal Service Victoria and Domestic Violence Victoria also submitted that the scheme should be more flexible and responsive to the lived experiences of victims of family violence.^[40]

13.30 The Public Health Association of Australia also supported a flexible approach to the award categories.^[41] Similarly, in a consultation academics told the Commission that the award categories are too narrow.^[42]

13.31 The Victims of Crime Commissioner also submitted that the current categories of award—in particular, special financial assistance and recovery expenses—can result in inconsistent outcomes for different victims.^[43] The Victims of Crime Commissioner considered that the existing award categories should be restructured to reflect the approach in New South Wales, which provides for four ‘pillars’ of assistance:^[44]

• counselling

• immediate needs

• financial assistance for economic loss

• recognition payment.^[45]

13.32 The Victims of Crime Commissioner submitted that adopting this approach would also help to promote transparency and fairness in awards.^[46]

New categories of award

13.33 In addition to concerns about the overall structure of the current award categories, some stakeholders submitted that new award categories should be included in the scheme. Some submissions considered that these new categories should be included as part of a complete restructure of the award categories, while other stakeholders submitted that one or more additional categories could be added to the existing categories.

13.34 Stakeholders proposed the following additional categories of award:

• property loss and damage^[47]

• relocation and resettlement expenses^[48]

• personal care^[49] and/or therapeutic expenses^[50]

• carers’ expenses^[51]

• childcare expenses^[52]

• income assistance, including for victims who were not working at the time of the act of violence^[53]

• education and return to work programs^[54]

• financial counselling^[55]

• bereavement.^[56]

13.35 Each of these suggested new categories is discussed below.

Property loss or damage

13.36 The exclusion of assistance for expenses incurred through loss or damage to property may particularly affect victims of family violence, who may require property-related assistance in order to achieve the independence and security necessary to their recovery, both in the short and longer term.^[57] A number of stakeholders submitted that the VOCAA should be amended to include awards for property loss or damage that occurred as a result of the act of violence.^[58]

13.37 Some stakeholders considered that this assistance should be provided only where the property loss or damage occurred in the context of family violence,^[59] sexual assault^[60] and/or elder abuse.^[61]

13.38 Other stakeholders stated that a victim should only be able to claim property loss or damage where the victim has no recourse under any insurance or other schemes.^[62]

Relocation and resettlement expenses

13.39 Inner Melbourne Community Legal submitted that there should be two new categories of award for relocation and resettlement costs.^[63] It explained that relocation costs should include emergency accommodation, moving and storage costs, while resettlement costs should cover the costs of items such as furniture to assist victims to re-establish themselves and their family in a safe environment. Inner Melbourne Community Legal noted that assistance for emergency housing is often provided as a ‘safety-related expense’ but that many victims of family violence also lose access to their furniture and personal effects, which are not covered by the existing scheme.^[64]

13.40 Other stakeholders also acknowledged the need for financial assistance for housing expenses.^[65]

Personal care/therapeutic expenses

13.41 Some stakeholders told the Commission that financial assistance should be provided for ongoing personal care needs. For example, Daniel Myles et al submitted that victims may require assistance for:

in home personal care, case management, cleaning and maintenance services, carer assisted shopping and outings, accessibility aides such as wheelchairs, disability accessible vehicles, home modifications, servicing costs for equipment, and transport costs associated with injury related appointments.^[66]

13.42 Seniors Rights Victoria also submitted that victims of elder abuse would benefit from financial assistance for transport costs to appointments and programs addressing social isolation, acquiring new disability aids, travel to visit supportive family members and relaxation classes, including hydrotherapy, yoga and meditation.^[67]

13.43 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria considered that a new category of award for therapeutic expenses should be created, to cover expenses such as mobility aids or home renovations to make the victim’s place of residence wheelchair accessible.^[68] It was also submitted that such an award category could include amounts to assist in recovery from loss of self-worth or loss of opportunity for education. However, to help ensure certainty, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposed that examples of the kinds of expenses covered by this category could be included in the VOCAA and that such expenses could be capped.^[69]

13.44 In addition, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that such changes would help reduce inconsistency in recovery expenses awards and address costs and delays associated with having to establish exceptional circumstances.^[70]

Carers’ expenses

13.45 The Commission was told that financial assistance should also be available to family members who become carers for primary victims.

13.46 YourLawyer told the Commission that close family members of a primary victim should be able to access financial assistance for:

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

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

• costs of medical or psychological treatment for the primary victim incurred by the close family member.^[71]

13.47 Another stakeholder submitted that financial assistance should be available for primary victims who are no longer able to fulfil a carer commitment due to the injury they have suffered as a result of the crime.^[72]

Childcare expenses

13.48 Both safe steps Family Violence Response Centre and the Victorian Council of Social Service submitted that assistance should be provided for childcare expenses incurred as a result of the act of violence.^[73] Safe steps Family Violence Response Centre stated that such assistance would enable victims to ‘plan for their safety and attend medical and counselling appointments’.^[74]

Income assistance

13.49 Stakeholders told the Commission that awards for loss of earnings unfairly discriminate against those who were not working at the time of the act of violence.^[75] In particular, the Commission was told that this category of award fails to recognise that a victim’s future capacity to work can be adversely affected as a consequence of an offence.^[76]

13.50 One stakeholder proposed that victims of crime who were on a trajectory towards employment—for example, by studying—should be entitled to an award for the same maximum amount as provided for loss of earnings.^[77] This stakeholder noted that victims could, for example, use this financial assistance to fund their remaining education, or other vocational activity, until they have ‘regained the standing they would have attained on the trajectory they were on had they not sustained the injury’.^[78] Other stakeholders submitted that the categories of award should reflect something akin to a future potential earnings in a civil claim.^[79]

13.51 Inner Melbourne Community Legal also submitted that there is currently a lack of income support for victims who do not qualify for Centrelink, for example, due to their visa or residency status.^[80] It noted that this can affect the capacity of some victims of family violence to escape an unsafe environment and achieve financial independence.^[81]

13.52 To overcome these issues, Inner Melbourne Community Legal proposed creating an award category for income support for victims who are unable to obtain other forms of income support or lose access to existing financial supports.^[82]

13.53 Another concern raised about current awards for loss of earnings was the two-year timeframe currently imposed. Ryan Carlisle Thomas Lawyers submitted that although a time limit should apply, the current two-year timeframe ‘often does not reflect the time where the loss of earnings occurred’.^[83] For example, a victim may experience loss of earnings from the date of disclosure of the crime or the date of the criminal trial.^[84]

13.54 Stakeholders also told the Commission that the maximum quantum of $20,000 for loss of earnings is inadequate.^[85] Ryan Carlisle Thomas Lawyers stated that this amount over a two-year period is ‘far below the minimum wage and often does not even cover 6 months of an applicant’s full time wage’.^[86] This, it submitted, ‘fall[s] short of community expectations’.^[87] CASA Forum noted that the loss of earnings entitlement has not increased since 1997.^[88]

Education and return-to-work programs

13.55 Inner Melbourne Community Legal proposed creating a category for ‘re-education and employment support’ to enable victims to re-train and re-enter the workforce.^[89] They stated that although such expenses can usually be claimed as recovery expenses, creating this new category would provide ‘better clarity around what [applicants] can generally claim’, which ‘would assist applicants to understand their entitlements’.^[90]

13.56 Daniel Myles et al also noted the importance of education opportunities and return-to-work programs.^[91] Although these may be provided through the National Disability Insurance Scheme, it was noted that ‘victims of crime may have needs that are very specific to the trauma of interpersonal violence’ and, as such, may benefit from more tailored support under this scheme.^[92]

13.57 As noted above, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposed creating a new category of award for therapeutic expenses. They submitted that this category could include amounts for loss of opportunity for education.^[93]

Financial counselling

13.58 Representatives of the Victims of Crime Consultative Committee, told the Commission that there should be a category of award for financial counselling.^[94] The Commission heard that the effects of trauma can make it difficult for victims to manage financial matters in the aftermath of a crime. The Commission was also told that some victims never return to work and that financial counselling could assist victims to manage any lump sum payment received as special financial assistance.^[95]

13.59 However, in a consultation with victim support workers, the Commission heard that providing financial counselling under the VOCAA is a ‘paternalistic notion’ and that victims of crime would be better served by a trauma-informed model that emphasises choices and provides guidance as to effective ways to use financial assistance.^[96] Stakeholders also stated that amounts awarded under the VOCAA are so small as to not warrant financial counselling.^[97]

Bereavement

13.60 One stakeholder submitted that there should be a new category of award for ‘family member bereavement’.^[98] This would provide family members of a primary victim with limited assistance for counselling and expenses for funeral attendance and meeting family.^[99]

13.61 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that the ‘other expenses’ category of award for related victims could be defined to clarify and narrow its application and to specifically include assistance for funeral-related travel expenses.^[100]

Recovery expenses

13.62 In its supplementary consultation paper, the Commission asked whether it is appropriate to limit awards for recovery expenses to exceptional circumstances.^[101]

13.63 Awards for recovery expenses can be beneficial, as they provide victims with financial assistance tailored to their specific recovery needs.^[102] The recovery expenses category may also enable victims to claim expenses that they would otherwise be unable to access. For example, the recovery expenses category is sometimes used to cover expenses flowing from financial abuse or property damage.^[103]

13.64 As outlined in the Commission’s supplementary consultation paper,^[104] VOCAT has a very wide discretion in making awards for recovery expenses, both in relation to the applicant’s eligibility for an award under this category and the kinds of expenses covered. This can result in inconsistency in awards for different victims. For example, in some cases an application for financial assistance for a gym membership is successful, whereas in other cases it is not.^[105]

13.65 A significant number of stakeholders told the Commission that the recovery expenses category of award creates difficulties for victims with respect to:^[106]

• the requirement to establish exceptional circumstances

• its existence as a separate category of award.

13.66 These issues are considered further below.

The requirement for exceptional circumstances

13.67 Most stakeholder concerns about the recovery expenses category related to the requirement for victims to establish exceptional circumstances.

13.68 VCAT has interpreted exceptional circumstances as ‘out of the ordinary’. This means that only victims who suffer an unusual or uncommon reaction to a crime are eligible for an award for recovery expenses. For example, in RN v Victims of Crime Assistance,^[107] VCAT found that exceptional circumstances did not exist for a rape victim because her resulting post-traumatic stress disorder, anxiety and depression were held to be ‘depressingly common’^[108] for victims of rape and therefore not ‘unusual, special or out of the ordinary’.^[109]

13.69 Stakeholders told the Commission that the requirement for exceptional circumstances can unfairly disadvantage victims of more ‘common’ offences, such as family violence and sexual assault, because they are not viewed as exceptional.^[110] As the Victorian Aboriginal Legal Service stated:

The inclusion of an additional ‘exceptional circumstances’ category punishes those for whom this kind of violence is potentially more common, therefore victimising those already victimised.^[111]

13.70 Stakeholders also told the Commission that the need to prove exceptional circumstances can be demeaning, as experiencing any form of violent crime is ‘exceptional’.^[112] The requirement was also described as being ‘too onerous’,^[113] which can contribute to delay in processing applications.^[114] Moreover, the Commission was told that exceptional circumstances is an overly legalistic notion, which can be difficult for non-lawyers to understand,^[115] including psychologists preparing reports for applicants.^[116]

13.71 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also stated that because the VOCAA does not provide examples of what may constitute exceptional circumstances, applicants must provide evidence of psychological injury which may ‘pathologise’ the applicant’s experience and devalue it if the application is unsuccessful.^[117]

13.72 As such, a number of stakeholders considered that the requirement to establish exceptional circumstances under the VOCAA should be removed.^[118] Some stakeholders submitted that instead, this category could be based on whether the expense sought is ‘reasonable’^[119] and/or whether it would have a therapeutic benefit for the victim.^[120]

13.73 Another proposal was to provide greater direction as to how exceptional circumstances should be interpreted, through guidelines or inserting a definition in the VOCAA.^[121] Springvale Monash Legal Service stated that such a definition should take into account the severity of the act of violence and the extent of the harm suffered.^[122]

13.74 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that a definition of exceptional circumstances would help increase certainty for applicants and narrow the circumstances in which such awards are made, potentially allowing for the reallocation of funds to lump sum awards for special financial assistance.^[123]

13.75 As noted above, VOCAT and the Courts also considered that if the definition of exceptional circumstances under the VOCAA were narrowed, a new category of award could be created for other therapeutic expenses.

13.76 Other stakeholders proposed using the term ‘special circumstances’ rather than exceptional circumstances.^[124] One stakeholder stated that this meaning would be less ‘extreme’ than exceptional circumstances.^[125]

13.77 Some stakeholders submitted that exceptional circumstances should automatically apply to certain cohorts of victims, including:

• victims of family violence^[126]

• victims of sexual assault^[127]

• victims of offences where there is a significant power imbalance between the victim and the perpetrator^[128]

• victims who experience severe harm^[129]

• victims of slavery^[130]

• victims of trafficking^[131]

• victims who are sex workers.^[132]

13.78 Stakeholders also told the Commission that the discretionary nature of whether exceptional circumstances exist results in inconsistent awards.^[133] Darebin Community Legal Centre proposed the development of a Practice Direction to guide tribunal members about alternative forms of therapy and recovery.^[134]

13.79 In addition, some stakeholders told the Commission that the decision maker’s discretion as to whether or not a certain expense will assist the victim to recover can foster paternalistic attitudes.^[135]

Recovery expenses as a separate category of award

13.80 There was a divergence in opinion among stakeholders as to the merits of having a separate recovery expenses category of award.

13.81 Some stakeholders noted that this category of award enables flexibility and creativity.^[136] For example, the Commission was told that this award can be used to purchase a child a pet, which can be beneficial for their recovery.^[137] The Commission also heard that, for some victims, a recovery expenses award can be more important than an award for

special financial assistance because of the extra assistance it provides specifically for a victim’s recovery.^[138]

13.82 However, other stakeholders expressed concern about the existence of this category of award because of the wide range of items claimed, such as a holiday or a gym membership, which may have an unclear connection to the victim’s recovery.^[139] In addition, VOCAT’s broad discretion in awarding recovery expenses can lead to inconsistent decision making.^[140] Victims may therefore feel the need to seek legal assistance, which increases costs for VOCAT.^[141]

13.83 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that victims may only apply for recovery expenses because of the low awards granted under special financial assistance, which means that in practice, the recovery expenses category effectively duplicates the special financial assistance category:

Arguably, because the amounts of special financial assistance available under the Act have failed to keep pace with community expectations, most VOCAT applicants also apply for ‘an exceptional circumstances award’…

[Yet] the purpose of exceptional circumstances awards is not to duplicate special financial assistance. ^[142]

13.84 Inner Melbourne Community Legal considered that recovery expenses should be abolished to create greater certainty for applicants, in light of the inconsistency in such awards.^[143]

Special financial assistance

13.85 In the first consultation paper, the Commission asked whether the maximum award for special financial assistance should be available to all victims of family violence so that the amount they receive is not based on categories of offence but instead on the discretion of VOCAT.^[144] The Commission also asked a number of questions about how to ensure that the special financial assistance categories account for the cumulative harm of family violence and, in particular, for child victims of family violence.^[145]

13.86 In its supplementary consultation paper, the Commission asked:

• whether the maximum and minimum amounts of special financial assistance should be removed and replaced with one amount for each category^[146]

• whether the amounts of special financial assistance should be increased^[147]

• whether the special financial assistance formula should be amended to take into account the cumulative harm of a series of related criminal acts^[148]

• whether the special financial assistance formula should be amended to take into account the experiences of vulnerable victims, including child victims, elderly victims, victims with disability and victims of an act of violence perpetrated by someone in a position of power, trust or authority ^[149]

• who should be eligible for special financial assistance^[150]

• whether, in addition to financial assistance, there are other ways to promote the recovery of victims of crime.^[151]

13.87 Stakeholder views on these questions are set out below.

Purpose of special financial assistance

13.88 A number of stakeholders suggested that there is a lack of clarity regarding the policy rationale for lump sum payments to victims in the form of special financial assistance.^[152]

13.89 Some stakeholders considered that the purpose of special financial assistance awards should be clarified, for example, by renaming the payments ‘recognition payments’ rather than ‘special financial assistance’.^[153] The term ‘recognition payment’ is used in both the ACT and NSW schemes.^[154] Stakeholders submitted that this would help clarify for victims the purpose of special financial assistance.^[155] As safe steps Family Violence Response Centre noted, the purpose of such financial assistance is not to compensate or assist a victim in their recovery but to provide a ‘symbolic gesture on behalf of the community and the state that recognizes harm caused to victims’.^[156]

13.90 However, Springvale Monash Legal Service submitted that if special financial assistance were to be renamed a recognition payment, this could have the unintended effect of implying that other ‘regular’ financial assistance payments do not recognise the suffering of other such victims.^[157] Accordingly, Springvale Monash Legal Service submitted that it may be more appropriate for special financial assistance to be renamed as one of the following:

• additional recognition payment

• further recognition payment

• extra recognition payment.^[158]

13.91 Other stakeholders expressed a more fundamental concern about the state providing financial assistance as a symbolic expression of sympathy and condolence. In particular, these stakeholders submitted that special financial assistance ‘introduces a set of political and moral considerations about who evokes and “deserves” sympathy’.^[159] In addition, the Commission was told that the underlying purpose of such financial assistance is inconsistent, and potentially in competition, with the VOCAA’s other, more practical, objective—‘to assist victims of crime to recover’ by providing financial assistance.^[160] One stakeholder told the Commission that the focus of the scheme should be on victim recovery, not on recognition of harm, and that special financial assistance should therefore be abolished.^[161]

13.92 However, the Commission also heard that, for many victims, ‘acknowledgment and validation are the most valued outcomes from their participation in the victims of crime assistance scheme’.^[162] Stakeholders also submitted that lump sum payments can contribute to victims’ recovery.^[163] The Commission was told that a lump sum payment can be a useful way to ‘tide victims over’ while their affairs are still in disarray in the aftermath of the offence.^[164] In addition, lump sum payments can promote victim autonomy. In a consultation with Domestic Violence Victoria, the Commission was told that other than the lump sum payment, victims of family violence are ‘drip fed’ financial assistance under the scheme and are given little agency in how to manage their award.^[165]

Eligibility for special financial assistance

13.93 Some stakeholders told the Commission that eligibility for special financial assistance should be expanded. Proposals included extending eligibility to:

• child victims—either all child victims^[166] or to secondary child victims who hear, witness or are otherwise exposed to family violence^[167]

• parent secondary victims—either secondary victims who are the parent of a child primary victim^[168] or the parents of child victims of sexual abuse^[169]

• secondary victims who suffer serious injury^[170] or significant harm^[171]

• applicants who suffer injury due to an act of violence.^[172]

13.94 In contrast, in a consultation with the President of the Children’s Court of Victoria, the Commission was told that children benefit more from timely, practical assistance than they do from lump sum payments held on trust for them until they are 18.^[173]

Special financial assistance categories

13.95 The Commission heard that there are issues with the current special financial assistance categories, which determine the quantum range for an award of special financial assistance. In particular, the Commission was told that the categories:

• create inconsistency in awards due to complexity^[174]

• are too formulaic^[175]

• imply that some victims are more deserving of sympathy than others^[176]

• focus too much on the offence, rather than the victim’s experience^[177]

• do not adequately recognise the harms suffered by victims of family violence.^[178]

13.96 There was some stakeholder support for removing the award categories for special financial assistance and allowing an award to be made at the discretion of the decision maker, up to a prescribed maximum.^[179] For example, Women’s Legal Service Victoria and

Domestic Violence Victoria proposed such an approach, and that the following safeguards would ensure that the experiences of family violence victims were recognised:

To assist specialist decision-makers with their discretion in determining award amounts, the implementation of the recognition payment could be supported by guidelines, minimum standards for decision making, and education on the immediate and long-term impacts of all forms of family violence.^[180]

13.97 Other stakeholders submitted that the existing special financial assistance categories should be retained but also emphasised the importance of decision maker discretion when awarding lump sum payments, as this discretion allows a victim’s individual circumstances to be considered.^[181] For example, Ryan Carlisle Thomas Lawyers submitted that:

One of the vital aspects of the judicial decision making currently available is that the decision-makers have the ability to assess and determine the appropriate level of SFA applicable to each and every application and the varying adverse effects they suffer.^[182]

13.98 In contrast, a number of stakeholders submitted that, in the absence of guiding factors, the present level of discretion can result in inconsistent outcomes for victims.^[183] Inner City Melbourne Legal stated that there should be greater guidance on how VOCAT should exercise its discretion under the VOCAA, for example, by requiring it to consider the following factors:

• whether the victim is a child, elderly or suffers from disability

• the circumstances of the offence or offences (including severity)

• the nature of the injury.^[184]

13.99 Other stakeholders submitted that the current level of discretion could be reduced by removing the quantum ranges applicable to each special financial assistance category so that a single amount applies to each category.^[185] The Commission was told that the quantum ranges give the decision maker too much discretion, which can result in inconsistent awards.^[186]

13.100 Some stakeholders supported redirecting the focus of special financial assistance away from the severity of the offence to a consideration of the victim’s experience, including a victim’s vulnerability, whether the crime occurred in the context of a pattern of abuse and the extent of the victim’s injury.^[187] For example, Merri Health Victims Assistance Program submitted that ‘the current formula focuses on the offence committed … [but] should acknowledge the victim whom the crime was committed against and their personal circumstances’.^[188]

13.101 Springvale Monash Legal Service proposed adopting the Australian Capital Territory approach of listing aggravating circumstances, which enable victims to be awarded an increased lump sum payment where such circumstances apply.^[189]

Special financial assistance and the recognition of cumulative harm

13.102 As outlined in the supplementary consultation paper,^[190] the Victorian Royal Commission into Family Violence noted that the special financial assistance categories in the VOCAA do ‘not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.^[191] This is because the relevant categories of special financial assistance are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.^[192] As the Commission’s first consultation paper also discussed, victims of family violence often experience violence over long periods of time in the context of a pattern of abuse.^[193]

13.103 While the maximum award for a category of special financial assistance can be increased where there has been a series of related criminal acts, this can only be done in limited circumstances.^[194]

13.104 Stakeholders confirmed that cumulative harm may not be adequately accounted for in awards for special financial assistance. The Commission was told by a significant number of stakeholders that the categories of special financial assistance need to better recognise cumulative harm as a result of persistent and protracted abuse.^[195]

13.105 The most common submission was that persistent family violence should result in an uplift to Category A (currently the highest category of special financial assistance).^[196] VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria outlined this proposal in the following terms:

In practice, this would involve retaining the related acts provision, but creating a system whereby a Tribunal Member could uplift to special financial assistance category ‘A’, where there is a history of family violence.^[197]

13.106 Some stakeholders submitted that there should be an uplift to Category A for long-term child abuse,^[198] long-term sexual abuse,^[199] assaults by multiple offenders,^[200] and any series of related offences.^[201]

13.107 Another proposal was to create a new category of award which specifically recognises cumulative harm, with the highest quantum of assistance available for this category.^[202]

13.108 In addition, the Commission was told that there should be an increase in the amount awarded under each category where there is a series of offences occurring within that category, as is the approach in the Australian Capital Territory. For example, Springvale Monash Legal Service submitted that a victim should be eligible for at least three times

the maximum amount for the applicable category where the victim has experienced a series of related criminal acts falling within that category.^[203]

Special financial assistance and the recognition of vulnerability

13.109 The supplementary consultation paper noted that the limited circumstances in which cumulative harm is recognised when determining awards for special financial assistance may also be a concern for other vulnerable victims who experience repeated violence, including victims of elder abuse, child abuse and abuse of people with disability.^[204]

13.110 In response to this, some stakeholders submitted that the special financial assistance categories should be amended to better account for certain victims’ vulnerability.^[205] In particular, the Commission was told that there should be revised uplift provisions for:

• child victims^[206]

• older victims^[207]

• victims with a disability^[208]

• victims where the perpetrator was in a position of power, trust or influence over the victim^[209]

• victims experiencing financial hardship.^[210]

13.111 Another proposal was to automatically apply an uplift to category A where the victim was a child; had a disability, acquired brain injury, mental illness or cognitive impairment at the time of the offending; or where the perpetrator was in a position of power, trust or authority.^[211]

13.112 In order to ensure that vulnerability is not only considered in relation to identified vulnerable groups, Springvale Monash Legal Service considered that the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) could provide for an uplift if the applicant is a ‘vulnerable victim’ and outline factors to which the decision maker must have regard in determining whether the applicant is a vulnerable victim, including:

a. The age of the applicant when the act of violence occurred

b. Whether the applicant was intellectually disabled within the meaning of the Disability Act 2006 (Vic) or mentally ill within the meaning of the Mental Health Act 2014 (Vic), or was in any other way disabled or impaired when the act of violence occurred

c. Whether the applicant suffered any financial hardship when the act of violence occurred

d. Whether the person who committed, or is alleged to have committed, the act of violence was in a position of power, influence or trust in relation to the applicant

e. The nature of the relationship between the applicant and the person who committed, or is alleged to have committed, the act of violence

f. All other circumstances that the decision-maker considers relevant.^[212]

13.113 Inner Melbourne Community Legal also submitted that greater guidance is needed regarding how vulnerable victims can access special financial assistance where their financial affairs are administered by a third party, such as the State Trustee.^[213]

The quantums of special financial assistance

13.114 A significant number of stakeholders told the Commission that the quantums of special financial assistance are inadequate.^[214] Stakeholders noted that the amounts of special financial assistance have not increased since June 2007^[215] and are very low by contemporary standards.^[216] The Judicial Advisory Group on Family Violence described the amount of special financial assistance available for victims of family violence as ‘grossly inadequate’ in some cases.^[217]

13.115 The Commission was also told that even the maximum amount of special financial assistance ($10,000) may only be enough to purchase a car that lasts for a few years, and not nearly enough for victims who need to relocate.^[218]

13.116 Stakeholders also told the Commission that special financial assistance may not fulfil its intended function of recognising victims of crime, as ‘some amounts are so low that they become an insult’.^[219]

13.117 Stakeholder views on special financial assistance quantums also accord with findings from the Queensland review of its victims of crime financial assistance scheme, which resulted in amendments to the Victims of Crime Assistance Act 2009 (Qld).^[220]

13.118 Stakeholders held varied views about what the special financial assistance quantums should be. There were proposals to increase the maximum award of special financial assistance to $20,000^[221] and $30,000.^[222] Springvale Monash Legal Service submitted that the lowest award of financial assistance should be no less than $2000.^[223]

13.119 Stakeholders also submitted that the amounts of special financial assistance should be indexed.^[224] Adviceline Injury Lawyers considered indexing the amounts every year and rounding up to the nearest $100.^[225] Ryan Carlisle Thomas Lawyers considered increasing the maximum special financial assistance awards to a ‘base rate’ and thereafter revising them in accordance with increases in the consumer price index.^[226]

13.120 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that one way to moderate the costs of increased special financial assistance would be to review ‘the operation of “exceptional circumstances” awards [recovery expenses], and simplifying the requirements of the scheme’.^[227]

Discussion and recommendations

13.121 The Commission acknowledges stakeholder concerns regarding the existing structure of the award categories under the VOCAA.

13.122 In particular, the Commission notes stakeholder submissions that the existing categories of award should be restructured.^[228]

13.123 The Commission considers that the current categories of award as provided by the VOCAA should be abolished and replaced with new simplified categories of award. In the Commission’s view, this new approach should be modelled on the approach adopted in New South Wales.^[229]

13.124 As noted above, the New South Wales victims of crime financial assistance scheme is based on four pillars of support:

• counselling

• immediate needs—up to $5000 to cover urgent expenses, including emergency medical treatment, relocation expenses, crime scene clean-up and safety measures in the home

• financial assistance for economic loss—up to $30,000 for out-of-pocket expenses, including loss of earnings,^[230] medical and dental expenses and justice-related expenses, such as the costs of having to attend court

• recognition payments—a lump sum payment of up to $15,000.^[231]

13.125 These distinct pillars of support were designed to target the unique and varying needs of victims of crime.^[232] By establishing a separate stream for immediate needs, victims are able to receive urgent financial assistance in a more timely manner.^[233] Moreover, the separation of counselling support from other financial assistance allows victims to access counselling before making an application for financial assistance.^[234] The separate counselling pillar also enables victims to access ongoing counselling services—if required—even when a victim has exhausted the maximum quantum available for other forms of financial assistance.^[235]

13.126 The structure of the NSW scheme also promotes victim accessibility through its clarity and simplicity. As the Victorian Victims of Crime Commissioner submitted, the pillar system reduces reliance on lawyers and supports scheme transparency.^[236]

13.127 The Commission considers that adopting a similar approach in Victoria would help make it easier for victims to understand the types of assistance they may be eligible for, and enable a more flexible approach to providing assistance. In the Commission’s view, each category of assistance should have a name that clearly indicates its purpose rather than having non-specific categories such as ‘special financial assistance’. In naming the categories, the Commission has noted Springvale Monash Legal Service’s submission that award categories should be described in ordinary terms to enable applicants to better understand what assistance they are entitled to claim.^[237]

13.128 The Commission considers that improved clarity regarding award entitlements would also help to promote consistency and transparency in awards. In the Commission’s view, this new approach would also better assist victims in their recovery journey by helping to ensure victims have better access to the assistance they need to recover from the harm suffered as a result of a criminal act.

New streams of assistance

13.129 The Commission considers that under the proposed Act victims should be eligible for assistance under the following six streams of assistance:

1) immediate needs—to replace interim awards under the existing scheme

2) funeral expenses

3) counselling expenses

4) practical assistance—including assistance for health, housing and safety expenses; financial support; education and return to work; the replacement of lost or damaged clothing worn at the time of the criminal act; and other expenses necessarily incurred to access assistance under the scheme, such as travel and childcare costs.

5) recovery payments and recovery plans—a lump sum payment which combines the functions of the recovery expenses and special financial assistance categories under the existing scheme; victims would also have the option of requesting a recovery plan to help manage this payment.

6) recognition—a non-pecuniary category of assistance which provides recognition to victims through a recognition statement, victim conference and/or a pathway to restorative justice.

13.130 The Commission’s proposed approach is therefore similar to the NSW pillars model.

13.131 However, compared to the New South Wales scheme, the Commission’s proposed approach includes additional sub-categories of assistance, such as housing, education and return-to-work expenses. In the Commission’s view, these sub-categories of assistance correspond with the purpose and objectives of the proposed Act, and help clarify the types of assistance available. In addition, and instead of a recognition payment, the Commission considers that for the reasons discussed in Chapter 10, the recognition stream should provide non-pecuniary recognition to victims, with the lump sum recovery payment being focused on addressing victims’ material recovery needs.

13.132 The Commission’s proposed approach also accords with the Victims of Crime Commissioner’s submission that establishing a pillar system similar to that in New South Wales, would help to make the Victorian scheme more equitable, just and transparent, as well as reduce reliance on lawyers.^[238]

13.133 In the Commission’s view, the proposed approach also responds directly to stakeholder concerns about the operation of the existing categories of award and the need for certain new categories.

13.134 Each stream of assistance is discussed further below. However, before doing so, this section first:

• considers whether the proposed Act should provide financial assistance for property loss or damage

• explains the Commission’s proposal to abolish the existing recovery expenses and special financial assistance categories of assistance and combine them to create a new stream of assistance, ‘recovery payments and plans’.

The exclusion of property loss or damage

13.135 The Commission considers that the proposed Act should continue to provide that victims cannot receive financial assistance for property loss or damage, except in relation to relocation expenses and lost or damaged clothing. In the Commission’s view, maintaining this exclusion would help safeguard the scheme’s sustainability. As Michael Kirby wrote:

the practical problems of providing a total form of compensation [that includes victims who suffer property loss or damage] are enormous and would appear to be so expensive as almost certainly to make them unacceptable and to delay unfairly the implementation of a scheme for victims of crimes causing death or bodily injury.^[239]

13.136 The Commission is also of the view that continuing to exclude property loss and damage would help ensure that the scheme does not operate as a disincentive for property insurance.

13.137 However, as discussed above in Chapter 12, the Commission considers victims should be eligible for assistance for the psychological harm caused by property damage that occurs in the course of a criminal act.

Reconceiving recovery expenses and special financial assistance

13.138 In the Commission’s view, the VOCAA’s recovery expenses provisions, which limit the award of such expenses to where there are exceptional circumstances, create uncertainty. In particular, the Commission notes stakeholder concerns about the lack of clarity regarding what expenses are covered, inconsistent awards as a result of VOCAT’s broad discretion to make such payments, and the narrow interpretation of exceptional circumstances. Taken together, the Commission considers that the practical operation of the provisions is to unfairly and inappropriately limit the award of assistance to aid recovery.

13.139 The Commission also acknowledges stakeholder views regarding the operation of the special financial assistance category of assistance. In particular, the Commission notes that providing a lump sum payment for symbolic recognition of a victim’s experience may create an unhelpful hierarchy between victims based on whether or not they receive such a payment and the amount. The Commission also acknowledges stakeholder views that eligibility for special financial assistance is too limited and that the quantum of such payments should be increased. Finally, the Commission notes that the quantum ranges which currently apply to special financial assistance payments focus too much on the offence rather than its impact on the victim. At the same time, in the absence of guiding factors, the ranges provide too much discretion to Tribunal members in determining the amount of such payments.

13.140 To address the issues identified with the recovery expenses and special financial assistance categories of assistance under the existing scheme, the Commission considers that these two categories should be abolished in their present form and combined to create a new stream of assistance called ‘recovery payments and plans’, which would be available to all eligible victims under the proposed Act.

13.141 In the Commission’s view, a recovery payment should be in the form of a lump sum payment. Rather than providing symbolic recognition of a victim’s experience, it would be awarded to provide financial assistance for any recovery expenses that do not fit within the other streams of assistance. Recovery payments would therefore cover the types of expense that are currently provided for by the recovery expenses category. In addition to assisting with such expenses, the Commission considers that giving victims’ full autonomy in determining their recovery expenses, and allowing them to design their own recovery pathway, would be empowering and may contribute to a victim’s recovery.

13.142 A ‘recovery plan’ would allow victims who receive a recovery payment to allocate the payment to particular recovery expenses, and for the payments to be held in trust on their behalf. Except in certain circumstances as outlined below, the Commission considers that having a ‘recovery plan’ should be optional at the request of the victim.

13.143 The Commission’s proposed recovery payments and plans stream of assistance—and how it addresses the issues associated with the recovery expenses and special financial assistance categories under the existing scheme—is discussed in detail in the section below, ‘Recovery payments and plans’.

Recommendation—new streams of assistance

33 The proposed Act should provide that eligible victims may apply for the following streams of assistance:

(a) immediate needs

(b) funeral expenses

(c) counselling

(d) practical assistance

(e) recovery payments and recovery plans—lump sum payments to assist in the victim’s recovery

(f) recognition:

(i) recognition statement

(ii) victim conference (at victim’s request)

(iii) pathway to restorative justice (at victim’s request).

Immediate needs

13.144 This part discusses, and makes recommendations about, the circumstances in which victims may be granted financial assistance for their urgent and immediate needs, for example, urgent medical expenses or an immediate need for counselling. Currently these types of award are called ‘interim awards’.

Current law

13.145 Applicants can apply for an interim award of assistance pending the final determination of their application.^[240]

13.146 An interim award will be counted towards the total financial assistance available to victims up to the statutory limit of $60,000 for primary victims and $50,000 for secondary and related victims.^[241] If an application is dismissed, VOCAT may order the applicant to repay the interim award.^[242]

13.147 Interim awards may be awarded in any circumstances that VOCAT considers appropriate.^[243] On its website, VOCAT states that the majority of interim awards are made for counselling and funeral expenses.^[244] Since 2010, primary victims have also been able to access interim awards for safety-related expenses without needing to demonstrate exceptional circumstances.^[245]

13.148 For example, VOCAT’s website states that applicants who are attending the Magistrates’ Court for the purposes of obtaining an interim intervention order under the Family Violence Protection Act 2008 (Vic) may be eligible to apply for an interim award for safety-related expenses.^[246]

Responses

13.149 In its supplementary consultation paper, the Commission asked whether interim awards are adequate to meet victims’ needs, including with respect to quantum and timeliness.^[247]

13.150 Most stakeholder concerns regarding interim awards related to timeliness. For example, the Victims of Crime Commissioner told the Commission that ‘current evidentiary requirements and waiting times for interim payments … make it extremely difficult and frustrating for victims to get the support they need, at times when they need it the most’.^[248]

13.151 Some stakeholders also expressed concern about the requirement for applicants to reimburse an interim award if their application is ultimately unsuccessful. Inner Melbourne Community Legal stated that fear of having to reimburse an interim award ‘can stop [applicants] from applying for much needed assistance’.^[249] In order to address this issue, as well as the delay in determining an application, Inner Melbourne Community Legal proposed adopting the NSW approach of having a separate ‘immediate needs’ category of award.^[250] This approach was also supported by safe steps Family Violence Response Centre.^[251]

Discussion and recommendations

13.152 As discussed above, the Commission considers that under the proposed Act, the existing categories of award under the VOCAA should be reformulated as six streams of assistance, and that one of these streams be awards for immediate needs.

13.153 The Commission acknowledges the benefits of having an immediate needs stream of assistance that victims can access. This category of award should be retained under the proposed Act and should be a separate and distinct category of award.

13.154 As is the case under the VOCAA, the Commission is of the view that the decision maker should have discretion to grant an award for immediate needs where the decision maker considers it is appropriate to do so. Stakeholders did not identify any issues with the current exercise of this discretion.

13.155 As discussed in the Commission’s supplementary consultation paper, the fact that under the VOCAA interim awards are not final, and may be required to be reimbursed later or deducted from awards or varied, can result in uncertainty for applicants and inefficiency for the Tribunal.^[252] Stakeholders confirmed that the requirement for applicants to reimburse interim awards if unsuccessful may prevent victims from seeking assistance for their immediate needs.^[253]

13.156 To address these concerns, the Commission considers that awards for immediate expenses should be final and that applicants should not be required to refund such awards in the event that their application for other forms of assistance is unsuccessful. However, the Commission notes that applicants seeking an award of financial assistance for immediate needs would still be required to satisfy the eligibility criteria under the proposed Act, as discussed in Chapter 12—for example, they would need to establish that they were the victim of a criminal act and, depending on the type of criminal act, may also need to establish that they suffered an injury as a result of that criminal act.

13.157 To help ensure the sustainability of the proposed scheme, the Commission considers that there should be a monetary cap on the amount that can be awarded to a victim for immediate needs. As in New South Wales, the Commission considers that the maximum amount that may be awarded for immediate needs should be prescribed by regulation.^[254] In New South Wales, this amount is currently $5000.^[255] The Commission considers that this quantum cap should also apply under the proposed scheme.

13.158 In addition, and to further ensure the sustainability of the proposed scheme, the Commission considers that the scheme decision maker should have discretion to take into account any amount previously awarded to a victim for immediate needs when determining the amount of assistance to award that victim under other streams of assistance.

13.159 The Commission also acknowledges stakeholder concerns regarding the timeliness of the determination of interim awards under the existing scheme. The Commission discusses, and makes recommendations about, timeframes for decision making under the proposed Act—including the determination of applications for assistance for immediate needs—in Chapter 15.

Recommendation—immediate needs

34 The proposed Act should provide that an award for immediate needs:

(a) may be made where the scheme decision maker considers it appropriate to do so

(b) is final and is not required to be refunded where a victim’s application/s for other streams of assistance is unsuccessful

(c) may be taken into account in determining the amount of assistance to award a victim under other streams of assistance, where a victim’s application/s for such other streams is successful.

Funeral expenses

Current law

13.160 Under the VOCAA, related victims can make a claim for assistance for funeral expenses incurred as a direct result of the death of the primary victim.^[256]

13.161 A person who incurs the funeral expenses of a primary victim, but who is not a related victim, is also able to make a claim for assistance for those expenses.^[257]

13.162 The quantum of awards for funeral expenses is not prescribed by the VOCAA but VOCAT has adopted guidelines to assist VOCAT in determining whether funeral expenses claims are reasonable.^[258] VOCAT’s guidelines outline the types of funeral expense covered and what VOCAT considers to be reasonable amounts for each of these expenses. For example, the guideline states that the reasonable total cost of a burial is $15,235, which includes cemetery fees, the cost of a coffin or casket and other associated costs.^[259]

13.163 The maximum cumulative amount that may be awarded to a pool of related victims will be reduced by any award made in respect of funeral expenses.^[260]

Responses

13.164 In the supplementary consultation paper, the Commission asked whether the VOCAA should be amended to reflect the rising cost of funerals and whether funeral expenses should be excluded from the total maximum cumulative amount of assistance available for a pool of related victims.^[261]

13.165 A number of stakeholders told the Commission that the current maximum amount for funeral expenses is insufficient and does not reflect the rising cost of funerals.^[262]

13.166 One stakeholder submitted that any new quantum for funeral expenses should be indexed and subject to annual review by the Governor-in-Council.^[263]

13.167 Another stakeholder told the Commission that the quantum available for funerals should be flexible and reflect different cultural requirements—for example, more may be awarded where an applicant’s culture requires a family member to travel with the body of a victim to be repatriated.^[264]

13.168 In a consultation meeting with victim representatives, the Commission also heard that one applicant had encountered difficulties trying to claim assistance for the cost of cremation.^[265]

13.169 A number of stakeholders also expressed concern about funeral expenses being included in the related victim pool, as they can deplete the pool.^[266]

Discussion and recommendations

13.170 The Commission considers that under the proposed Act, the existing categories of award under VOCAA should be reformulated as six streams of assistance, and that one of these streams should be for ‘funeral expenses’.

13.171 Stakeholders agreed that the scheme should continue to reimburse those who incur funeral expenses for a person who died as a result of a criminal act.

13.172 The Commission considers that under the proposed Act, any person who has incurred, or will incur, funeral expenses for a person who has died as a result of a criminal act should continue to be eligible for financial assistance, regardless of whether they are a victim under the proposed Act.

13.173 The Commission acknowledges stakeholder concerns regarding funeral expenses as an expense that reduces the maximum cumulative amount that may be awarded to a victim, and to a pool of related victims.

13.174 However, the Commission considers that under the proposed Act, any funeral expenses should not reduce the amount of assistance a victim may otherwise be eligible for, or reduce the amount that any other victim may claim in relation to the same criminal act.^[267]

13.175 The Commission also acknowledges stakeholder views that the current amounts listed in the guidelines as indicative of reasonable funeral expenses may be inadequate for some victims. However, to help ensure the sustainability of the proposed scheme, the Commission considers that only reasonable funeral expenses should be covered, and that what constitutes reasonable funeral expenses should be outlined in guidelines. These amounts should be periodically reviewed in line with rising costs and inflation. The requirement for expenses to be reasonable more generally is discussed further below.

13.176 However, the Commission also considers that the guidelines should provide that the scheme decision maker may award funeral expenses that exceed the reasonable amounts listed in the guidelines where the scheme decision maker considers it reasonable in the victim’s circumstances to do so, including where this is necessary to accommodate cultural requirements, for example, where an applicant’s culture requires a family member to travel with the body of a victim to be repatriated.^[268]

13.177 In light of the approach of other jurisdictions, and in the interests of sustainability, the Commission considers that a cap should apply to limit the overall maximum amount that may be claimed for funeral expenses. The Commission considers that this amount should be $15,000, which is broadly consistent with the total maximum available under the current VOCAT guidelines for funeral expenses.^[269]

13.178 The Commission acknowledges that some stakeholders expressed the view that amounts available for funeral expenses under the existing scheme are inadequate.^[270] However, the Commission notes that a total maximum of $15,000 is already significantly higher than the total maximum amount available for funeral expenses in other jurisdictions. For example, Queensland, the Australian Capital Territory and New South Wales each impose a cap of $8,000 on funeral expenses.^[271] Recommendations regarding total maximum quantums of assistance are outlined below.

Recommendations—funeral expenses

35 The proposed Act should provide that an award for funeral expenses may be made by the scheme decision maker to any person who has incurred, or will incur, the funeral expenses of a person who has died as a result of a criminal act.

36 To assist the scheme decision maker in determining awards for funeral expenses, guidelines should be developed and should be made publicly available.

Counselling

Current law

13.179 Under the VOCAA, primary, secondary and related victims are eligible for expenses actually incurred, or reasonably likely to be incurred, for ‘reasonable counselling services’.^[272] All applications for counselling must be made using the prescribed Application for Counselling form.^[273]

13.180 Where an applicant is seeking counselling for the first time since the act of violence, VOCAT will usually pay for the first five hours of counselling for the purposes of providing ‘psychological first aid’.^[274]

13.181 If an applicant is seeking an award of more than five hours of counselling, or has already received five hours of counselling through another scheme (such as the Victims Assistance and Counselling Program), the application must be accompanied by a treatment plan.^[275] The victim must have authorised the treatment plan, which must then be approved by VOCAT. An award will authorise the applicant to incur counselling expenses for services provided by a particular counsellor in accordance with the treatment plan.

13.182 Under the VOCAA, all applications for counselling must be accompanied by a report from the victim’s treating counsellor.^[276]

13.183 If the victim seeks additional assistance for counselling expenses beyond what VOCAT initially awarded, an additional report must be provided.^[277] VOCAT will only make an award for additional counselling expenses where it is satisfied of various factors, including whether there is ‘proper clinical justification’ and whether it is ‘likely to be effective in achieving and maintaining the victim’s recovery’.^[278]

13.184 Victims’ and counsellors’ travel expenses for counselling services are not included in a counselling award.^[279] However, an applicant may make a separate request for such expenses.^[280]

13.185 There is no cap on the number of counselling sessions that a victim may be awarded, nor on the overall quantum of a counselling award (although the expenses must be reasonable). However, the applicant’s treatment plan must specify the number of counselling sessions recommended by the counsellor. If VOCAT makes an award for these sessions, any application for counselling beyond these sessions must be accompanied by an additional report which again outlines a treatment plan and specifies the number of recommended counselling sessions.^[281]

13.186 The Chief Magistrate has issued a Guideline to aid VOCAT in awarding financial assistance relating to counselling reports and sessions.^[282]

13.187 Under the VOCAA, any amount awarded for counselling expenses is included in the total maximum quantum for which the victim is eligible—$60,000 for primary victims (in addition to $10,000 for special financial assistance) and $50,000 for secondary and related victims.^[283]

Responses

13.188 A number of stakeholders told the Commission that awards for counselling should be treated differently to other expenses, because of the importance of counselling in helping victims recover from trauma. Proposals included:

• providing ongoing counselling without a time limit or maximum number of sessions^[284]

• having different eligibility criteria for counselling^[285]

• awarding counselling separately from other types of financial assistance^[286]

• having another body administer counselling awards.^[287]

13.189 The most common submission in relation to counselling awards was that such awards should be ongoing and not limited by time period or number of sessions. Some stakeholders submitted that all victims should be eligible for ongoing counselling,^[288] while knowmore made this submission in relation to victims of child abuse.^[289] Many of the stakeholders supporting this view were victim representatives.^[290]

13.190 In a consultation with victim representatives, the Commission heard that victims of crime may need ongoing counselling for many years to manage their trauma.^[291] The Commission was also told that decisions about whether to grant financial assistance for additional counselling should not focus on whether the counselling is achieving recovery for the victim, but whether it is assisting the victim.^[292]

13.191 Victim representatives also told the Commission that victims should not be required to fill out additional forms or ‘re-apply’ for counselling, as such requirements can be re-traumatising.^[293] Furthermore, it may be important for victims to know that free counselling will always be available and that they will not have to ‘jump through hoops’

to access it.^[294]

13.192 Knowmore told the Commission that if counselling were ongoing, victims’ counselling expenses should be subject to ongoing review.^[295]

13.193 The NSW financial assistance scheme for victims of crime provides ongoing counselling in certain circumstances. The NSW Commissioner of Victims Rights may authorise payment for an initial 10 counselling sessions and ‘for such further periods of counselling’ as the Commissioner considers appropriate, up to a total of 22 sessions.^[296] In a consultation meeting with the NSW Commissioner of Victims Rights and Victims Services NSW, the Commission was told that applicant victim is able to exceed this amount upon the recommendation of the counsellor.^[297] The Victims Rights and Support Regulation 2013 (NSW) provides that this may only occur where the Commissioner is ‘satisfied that there are exceptional reasons for doing so’.^[298] The Commission was told that the highest number of hours granted to an individual was 360 hours.^[299]

13.194 Rather than making counselling awards ongoing, some stakeholders proposed simplifying the variation process in relation to counselling. For example, Women’s Legal Service Victoria and Domestic Violence Victoria proposed:

Insert[ing] provisions into the Act that allow applications by survivors of family violence to vary [awards]to be simplified, including giving consideration to contingency award options for additional counselling to avoid delays in accessing counselling for survivors of family violence.^[300]

13.195 There was some support for expanding the eligibility requirements in relation to counselling.^[301] For example, some members of the Judicial Advisory Group on Family Violence supported counselling being made available to victims of non-criminal family violence.^[302] PartnerSPEAK proposed that counselling assistance be made available for the partners and children of online sex offenders, in addition to other forms of assistance.^[303] PartnerSPEAK told the Commission that the partners of online sex offenders often suffer post-traumatic stress disorder upon learning about their partner’s offending behaviour.^[304]

13.196 Broadening the eligibility criteria for counselling to include these groups would be consistent with the approach taken in New South Wales. In a consultation meeting with the NSW Commissioner of Victims Rights, the Commission was told that in New South Wales, the eligibility requirements are easier to satisfy for counselling assistance than for other forms of financial assistance.^[305] Victims of non-criminal family violence, including financial and psychological abuse, and the partners and children of online sex offenders are able to access counselling support.^[306] Reports from these counselling sessions can be used to substantiate a claim for other pillars of financial assistance.^[307] The Commission was told that it may emerge during counselling that a victim is eligible for other forms of assistance.

13.197 Another proposal was that counselling support should be provided separately to other forms of financial assistance so that it can be delivered in a more timely way.^[308] As the Eastern Metropolitan Regional Family Violence Partnership explained:

If financial assistance was awarded specifically for counselling before any other kind of category was reviewed for eligibility, the victim could begin therapy and thereby potentially lessen any PTSD symptoms on their path to recovery.^[309]

13.198 Merri Health Victims Assistance Program submitted that financial assistance for counselling for victims of crime should be administered through the Victims Assistance Program rather than VOCAT because this ‘would simplify the process for victims and make this process timelier’ and that ‘the Victims Assistance Program is ideally placed to support victims with counselling’.^[310]

Discussion and recommendations

13.199 The Commission acknowledges stakeholder views that awards of financial assistance for counselling are important to victims’ recovery and that currently, various barriers undermine the effectiveness of such awards and their therapeutic purpose. In particular, the Commission notes the significant administrative burden on victims in applying for assistance for counselling expenses, including the need to re-apply after the completion of an approved treatment plan, which can cause delays and interruptions.

13.200 In addition, the Commission notes that under the existing scheme any financial assistance awarded for counselling contributes to the overall maximum quantum to which a victim is eligible. This can reduce the amount of assistance available for other expenses. Awards for other types of assistance can also reduce the quantum for counselling.

13.201 The Commission also acknowledges that the six-year period within which a victim can access assistance under the VOCAA means that long-term counselling is not available. This is despite the fact that trauma and other psychological harm may be re-triggered by various events and milestones, and may re-emerge many years after the crime.

13.202 The Commission considers that all streams of assistance should operate independently of each other, including the counselling stream, so that any amount awarded to a victim for one stream does not reduce the amount of assistance that may be available to the same victim under other streams. This is similar to the approach taken in New South Wales where awards for counselling do not reduce the quantum available for other types of assistance.^[311]

13.203 Similarly to the approach in New South Wales, the Commission considers that under the proposed Act, victims should be eligible for the reasonable costs of up to 20 counselling sessions, and in exceptional circumstances, for any number of further counselling sessions as may be required, without any time limit or quantum cap. This would mean that a victim could continue to receive financial assistance for counselling on the basis of individual need, regardless of how long ago the criminal act occurred. In practice, the Commission notes that most victims are unlikely to exceed 20 counselling sessions—according to the Victims Support Agency:

The vast majority of VOCAT applicants use less than 10 sessions, with very few using more than 25 sessions.^[312]

13.204 However, in the interests of sustainability, the Commission considers that victims should only be eligible for financial assistance for reasonable counselling costs. Currently, guidelines issued by the Chief Magistrate provide that counselling awards must be paid in accordance with the specified fees. The Commission considers that similar guidelines should be developed to guide decision makers under the proposed scheme. This is discussed further below.

13.205 In addition, to help reduce the administrative burden placed on applicants, the Commission considers that victims should be able to make a request for further counselling to the scheme decision maker, who would then determine whether exceptional circumstances exist.

13.206 The Commission considers that in determining whether exceptional circumstances exist, the scheme decision maker should be required to consider certain factors identified in publicly available guidelines. These factors should include whether the counselling is assisting, or would assist the victim, and not whether there has been or will be a tangible improvement in their recovery at the time at which the application is made. In the Commission’s view, this approach would help improve the transparency of awards and would respond to stakeholder concerns that decisions about whether to grant financial assistance for additional counselling are currently focused on whether the counselling is achieving recovery for the victim, rather than whether it is assisting the victim.^[313]

13.207 The Commission considers that the guidelines should also specify, for the purposes of the proposed scheme, the reasonable cost per counselling session and for report writing.

13.208 To further reduce the administrative burden for victims, the Commission considers that the scheme decision maker should be empowered under the proposed Act to obtain information from the victim’s counsellor for the purposes of determining the application, where the victim so consents.

13.209 The power to determine applications for counselling should be delegated to scheme case managers. This approach responds to stakeholder concerns that it can be traumatising for victims to have to prove their need for further counselling after experiencing a traumatic crime, and would also help to streamline the assistance process.

13.210 In the Commission’s view, this proposed approach would help ensure that all victims are able to access as much counselling as is reasonably necessary to assist in their recovery.

13.211 The Commission acknowledges that counselling has been made available to a broader range of persons under the NSW financial assistance scheme for victims of crime, including victims of non-criminal family violence, and that some stakeholders proposed a similar expansion in Victoria.

13.212 However, in the Commission’s view, such an expansion may threaten the sustainability of the proposed scheme and is inconsistent with its proposed purpose. The Commission therefore considers that counselling assistance should be limited to persons who are victims as defined under the proposed Act.

Recommendations—counselling

37 The proposed Act should provide that an award for the reasonable costs of counselling may be made by the scheme decision maker:

(a) on initial application, for up to 20 counselling sessions

(b) in exceptional circumstances, as determined on application, for such further counselling sessions as are required.

38 To assist the scheme decision maker in determining awards for counselling, guidelines should be developed and should be made publicly available.

Practical assistance

Current law

13.213 Under the VOCAA, primary victims are currently eligible for the following types of assistance that would fall within the new ‘practical assistance’ category of award:

• medical expenses as a direct result of the act of violence^[314]

• loss of earnings of up to $20,000 as a direct result of the act of violence^[315]

• loss or damage to clothing worn at the time of the act of violence^[316]

• safety-related expenses as a direct result of the act of violence.^[317]

13.214 Under the VOCAA, secondary victims are eligible for medical expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of witnessing, or becoming aware of, the act of violence.^[318] In exceptional circumstances secondary victims may also be eligible for up to $20,000 for loss of earnings.^[319]

13.215 Related victims are eligible for:

• medical expenses actually and reasonably incurred or reasonably likely to be incurred, or funeral expenses as a direct result of the death of the primary victim^[320]

• distress experienced or reasonably likely to be experienced as a direct result of the death of the primary victim^[321]

• loss of money that the related victim, but for the death of the primary victim, would have been reasonably likely to receive from the primary victim during a period of up to two years after that death^[322]

• other expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of the primary victim’s death.^[323]

13.216 In addition, all victims may claim travel expenses necessarily incurred by completing a travel expenses declaration form.^[324]

Responses

13.217 The issues raised by stakeholders in relation to the existing categories of award, and stakeholder proposals for new categories of award, are outlined above. In particular, stakeholders expressed concern that under the VOCAA, victims are not expressly entitled to certain types of assistance that may be important for their recovery, including assistance for relocation and resettlement expenses,^[325] therapeutic expenses such as mobility aids,^[326] childcare expenses incurred to access assistance such as counselling,^[327] re-education and return-to-work expenses,^[328] and financial counselling.^[329]

13.218 The following section outlines how the Commission’s proposed new practical assistance stream would operate, including the scope of coverage of each sub-category, and how it would address the concerns raised by stakeholders in relation to the existing types of assistance available under the VOCAA.

Discussion and recommendations

13.219 In the Commission’s view, all victims should be eligible to receive financial assistance for practical expenses to address their basic needs which may have been impacted by the crime, including in relation to health, housing, safety and financial security. The practical assistance stream should cover some types of assistance that are currently available under the VOCAA, such as medical expenses, loss of earnings, safety expenses, and loss of or damage to clothing worn by the victim at the time of the criminal act.

13.220 The Commission notes that some of the categories of practical assistance under the VOCAA currently meet victims’ needs. In particular, the interpretation of ‘medical expenses’ under the VOCAA has enabled victims to claim for a wide range of therapeutic expenses. In Ractliffe v Victims of Crime Assistance Tribunal,^[330] the cost of an occupational therapy assessment for the purpose of regaining a driver’s licence was considered to be a medical expense.^[331]

13.221 However, the Commission also acknowledges stakeholder concerns that other categories of practical assistance under the VOCAA are limited and do not adequately address the needs of some victims. In particular, stakeholders told the Commission that some types of assistance, such as for housing expenses and expenses relating to return-to-work programs, are not expressly available under the VOCAA.^[332] This is despite the fact that they may be important in assisting a victim to recover from a criminal act. To address these concerns, the Commission considers that the practical assistance stream should include financial assistance for the following sub-categories of expense:

• health expenses, including medical expenses and therapeutic supports

• housing expenses, including both relocation and resettlement expenses

• safety-related expenses

• financial support, include loss of earnings, dependency payments and financial counselling

• expenses related to education and returning to work

• lost or damaged clothing worn at the time of the criminal act

• other expenses reasonably incurred to access assistance provided under the proposed Act or to attend justice-related appointments for the purpose of making an application under the proposed Act.

13.222 The type of assistance that the Commission considers should be available within each of these sub-categories is discussed below.

13.223 However, as is currently the case under the VOCAA, the Commission considers that practical assistance under the proposed Act should only be available where a decision maker considers such expenses to be reasonable. The requirement for an expense to be reasonable is also discussed below.

Health

13.224 The Commission considers that under the health sub-category of the practical assistance stream, victims should be eligible for awards of financial assistance to cover medical expenses, as is the case under the VOCAA. This stream of assistance would cover, for example, medical, dental and pharmaceutical expenses.

13.225 In response to stakeholder views that victims’ health needs can generate expenses beyond immediate medical expenses, the Commission considers that victims should be able to access financial assistance for personal care expenses related to health needs, including mobility aids, home modifications, and in-home care.

13.226 Broadening the type of health expenses that can be claimed would provide holistic support that recognises victims’ ongoing and longer-term health needs and any adjustments needed to accommodate them.

13.227 The Commission acknowledges the considerable burden placed on family members who assume the role of carer as a result of a criminal act, and some stakeholders suggested that this burden should be recognised and addressed by the proposed scheme.^[333] However, in the interests of scheme sustainability, the Commission considers such assistance should not extend to the carers of victims injured by a criminal act. In addition, the Commission notes that under its proposed expansive definition of victim under the proposed Act, carers who establish that they had a close personal relationship with a person who was injured or died as a result of a criminal act would be eligible to apply for financial assistance under the proposed Act, as a victim in their own right.

Housing

13.228 The Commission considers that the housing sub-category of assistance should enable financial assistance to be provided for housing-related expenses, including rental assistance and relocation and resettlement costs.

13.229 The Commission acknowledges stakeholder views that after experiencing a criminal act, victims’ housing needs often encompass both relocation and resettlement costs. While the Commission was told that VOCAT awards relocation expenses in some circumstances, victims’ entitlement to such expenses, and which category they fall under, is unclear. As Inner Melbourne Community Legal submitted, assistance for emergency housing is often provided as a safety-related expense but many victims of family violence also lose access to their furniture and personal effects and need assistance in this regard.^[334]

13.230 The Commission therefore considers that the housing sub-category should include both relocation and resettlement expenses. Relocation expenses should include costs associated with moving and storage,^[335] while resettlement expenses should include the costs of items such as furniture to enable victims to re-establish themselves in a new home.^[336] The Commission acknowledges that this type of assistance may be particularly important for victims of family violence who may be required to leave their home and may lose access to their furniture and possessions.^[337]

13.231 The Commission considers that explicitly stating that victims are eligible for financial assistance for relocation and resettlement as part of the housing sub-category would provide greater clarity to applicants regarding the types of assistance available. This would also promote consistency, as it would help ensure that all applicants who need assistance with housing expenses apply for it, rather than only those who are made aware of this type of assistance through the advice of their legal representative.

Safety

13.232 As outlined in the Commission’s supplementary consultation paper,^[338] the introduction of awards for safety-related expenses in 2010 has been ‘generally considered to be a positive step’.^[339] The Commission has been told that this category of assistance is viewed as especially useful for victims of family violence,^[340] who often face ongoing concerns for their safety.

13.233 Accordingly, the Commission considers that this sub-category of assistance should be retained and that awards should be able to be made for both short and long-term security expenses, including window or lock repairs and self-defence courses.

Financial support

13.234 Similarly to the VOCAA,^[341] the Commission considers that victims should continue to be eligible for financial assistance for loss of earnings if they were working at the time of the criminal act and are unable to work due to injury or their involvement in the criminal trial, and they cannot receive income assistance elsewhere.

13.235 However, the Commission considers that the current time limit—which only allows victims to claim loss of earnings within the two years following the offence—should be abolished under the proposed Act. This shift in approach would reflect the fact that a victim’s recovery may not be a linear process and that a victim may suffer loss of earnings as a result of the crime beyond this timeframe.

13.236 As is the case under the VOCAA, the Commission considers that victims who were dependent on a person who died as a result of a criminal act should be eligible under the financial support stream of assistance for loss of money they would have received from that person, had the criminal act not occurred. This would be consistent with the joint submission received from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, which supported retaining dependency payments.^[342]

13.237 However, as discussed in Chapter 12, the Commission is of the view 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 financial support under the proposed Act, where the injury has impacted on that other person’s ability to earn an income and therefore provide financial support to the applicant.

13.238 The Commission acknowledges the view expressed by some stakeholders that some victims may find it difficult to manage their finances in the aftermath of a crime, for example, due to the effects of trauma.

13.239 The Commission therefore considers that under the proposed Act, victims should be eligible for financial assistance for financial counselling expenses as part of the financial support stream of assistance. This would provide victims with support in managing their financial affairs more broadly. In addition, as discussed below, the Commission considers

that victims who are awarded a lump sum recovery payment under the proposed Act should be able to request a recovery plan to help allocate their lump sum to specific recovery expenses.

13.240 The Commission acknowledges stakeholder views that victims who are unemployed at the time of the crime are ineligible for assistance for loss of earnings despite the fact that their future earning potential may have been affected. However, in the interests of scheme sustainability, the Commission considers that financial assistance for loss of earnings should continue to be available only to those who can demonstrate actual loss of earnings. Furthermore, the Commission considers that the ‘education and return to work’ category of assistance would address this gap, as discussed below.

13.241 Currently, the VOCAA imposes a cap of $20,000 on claims for loss of earnings. The Commission acknowledges that this amount may not cover the full extent of loss of earnings suffered by a victim. However, in the interests of ensuring scheme sustainability, the Commission considers that this cap should be retained in relation to awards for financial support.

13.242 The Commission also notes that other publicly funded schemes, such as Centrelink, are likely to provide assistance for victims who were dependent on someone who died or was injured as a result of a criminal act, and for victims who suffer long-term loss of earnings.

Education and return to work

13.243 Stakeholders told the Commission that return-to-work programs and re-education opportunities are very important for victims’ recovery.^[343] This is particularly so for victims who were unemployed or studying at the time of the crime, who have had their future employment trajectory affected, but are ineligible for assistance for loss of earnings. The Commission therefore considers that under the proposed Act, victims should be eligible for assistance to help cover these expenses.

13.244 Under the VOCAA, financial assistance is often provided for education and return-to-work expenses. However, Inner Melbourne Community Legal stated that ‘better clarity around what they can generally claim would assist applicants to understand their entitlements’.^[344] In the Commission’s view, having a separate sub-category for ‘education and return to work’ would provide this clarity.

13.245 The Commission considers that guidelines should be produced which outline the types and/or amounts of expense that the scheme considers to be ‘reasonable’. This is discussed further below.

Lost or damaged clothing

13.246 Stakeholders did not identify any issues with the VOCAA provisions that allow for awards to cover the cost of any lost or damaged clothing.

13.247 The Commission therefore considers that financial assistance for this type of expense should be retained.

Other expenses

13.248 In the Commission’s view, a sub-category of ‘other expenses’ should be included in the practical assistance stream to cover additional expenses that victims reasonably incur:—for example, travel or childcare costs to enable a victim to attend counselling sessions. In addition, this sub-category should cover costs reasonably incurred to attend justice-related appointments where a victim has engaged a legal representative to assist with the application process.

13.249 As identified in the supplementary consultation paper,^[345] the current lack of an award category for childcare expenses may affect the ability of victims who do not have access to affordable childcare to make practical arrangements for their safety.^[346] This was confirmed by stakeholders. As safe steps Family Violence Response Centre submitted, such awards would enable victims to ‘plan for their safety and attend medical and counselling appointments’.^[347]

Recommendation—practical assistance

39 The proposed Act should provide that an award for practical assistance may be made by the scheme decision maker for the following expenses incurred, or reasonably likely to be incurred:

(a) health-related expenses

(b) housing-related expenses, including relocation and resettlement expenses

(c) safety-related expenses

(d) financial support, including loss of earnings, dependency payments and financial counselling

(e) education, re-training and return-to-work expenses

(f) expenses for lost or damaged clothing worn at the time of the criminal act

(g) other expenses reasonably incurred to access assistance provided under the proposed Act, including travel and childcare expenses, and to attend justice-related appointments.

Recovery payments and plans

13.250 The Commission considers that the existing ‘special financial assistance’ and ‘recovery expenses’ categories of award should be consolidated into a new, flexible category called ‘Recovery payments and plans’.

13.251 This proposal is intended to address the issues identified by stakeholders with the current recovery expenses and special financial assistance categories.

Discussion and recommendations

13.252 Stakeholders told the Commission that awards for recovery expenses create uncertainty for victims because VOCAT is inconsistent in the types of expense that it recognises in this category.

13.253 In addition, the Commission was told that the requirement for exceptional circumstances can unfairly disadvantage victims of more ‘common’ offences, such as family violence and sexual assault, because they are not viewed as exceptional.^[348]

13.254 Stakeholders identified a number of issues with the special financial assistance category. In particular, the Commission was told that providing a lump sum payment for symbolic recognition of a victim’s experience may create an unhelpful hierarchy between victims based on whether or not they receive such a payment and the amount.

13.255 In addition, stakeholders told the Commission that eligibility for special financial assistance is too limited and the quantum is inadequate. The Commission heard that the award amounts for special financial assistance focus too much on the offence rather than on its impact on the victim and, in the absence of guiding factors, VOCAT members have too much discretion in determining the amount.

13.256 This section outlines how the Commission’s proposed new ‘recovery payments and plans’ category would address the issues identified by stakeholders in relation to these categories and better assist victims in their recovery.

Purpose of recovery payments

13.257 Under the VOCAA, lump sum payments of special financial assistance may be provided to primary victims as a symbolic expression of the state’s sympathy and condolence. The Commission acknowledges that some victims derive benefit from this recognition.

13.258 However, as discussed in Chapters 10 and 11, the Commission is of the view that this recognition can and should be provided in non-pecuniary ways, and that financial assistance under the proposed Act should be reserved for expenses to assist in the victim’s recovery. Accordingly, the Commission in this section of the chapter considers whether providing a lump sum payment to victims would assist in their recovery.

13.259 The Commission was told that lump sum payments can play an important role in a victim’s recovery and may complement financial assistance provided for expenses. In particular, lump sum payments can promote victim agency by enabling victims to determine their own recovery pathway to fund certain expenses that may not fall within the other streams of assistance.^[349]

13.260 The Commission acknowledges that victims’ recovery pathways may not be linear and that victims’ needs may not always neatly fall within the scheme’s categories of assistance. In particular, a lump sum payment that is not required to be spent in any particular way may fund expenses that may not reflect common understandings of what a victim needs to recover from a traumatic criminal act.

13.261 In light of the contribution that a lump sum payment can make to a victim’s recovery, the Commission considers that lump sum payments should be retained and re-named ‘recovery payments’ so that their purpose is clear.

13.262 However, in proposing this approach, and linking recovery payments to a victim’s recovery rather than a symbolic expression of sympathy or condolence, it is not the Commission’s intention that recovery payments should only be awarded to the extent that a victim can identify specific recovery needs. In addition, it is not intended that victims would receive smaller recovery payments under the proposed Act, compared to the amount they may have been awarded for special financial assistance under the existing scheme. The Commission’s proposed approach is intended to clarify the purpose of lump sum payments and ensure they better reflect the impact of the criminal act on the victim, rather than to reduce the amount of financial assistance that is awarded to victims.

Eligibility

13.263 In the Commission’s view, all victims should be eligible for recovery payments. This would avoid any hierarchies of victimhood and presumptions about victim experiences and needs. However, as discussed below, the Commission considers that decision makers should have discretion in determining the amount of a recovery payment, taking into account a victim’s specific circumstances, and having regard to a non-exhaustive list of factors in the proposed Act.

13.264 The Commission notes that because all victims would be eligible for a recovery payment, this stream of assistance would subsume any payment that related victims may receive under the existing scheme for distress experienced as a result of the death of a primary victim.

Quantum

13.265 Because the new recovery payments and plans stream combines two existing categories, the Commission has considered the existing maximum quantums that apply to these two categories and any issues identified by stakeholders.

13.266 The maximum amount that may be awarded for special financial assistance is $10,000. Currently, no maximum quantum applies to recovery expenses— they may be awarded where they are actually and reasonably incurred, or reasonably likely to be incurred by a primary victim. However, these expenses will form part of the overall quantum to which the primary victim is eligible.^[350]

13.267 The Commission acknowledges stakeholder views that the maximum amount of $10,000 currently available under the VOCAA for special financial assistance is inadequate.

13.268 The Commission is also of the view that the current maximum amount for special financial assistance is not in line with maximum lump sum payment amounts in some other jurisdictions. While in Queensland, the maximum amount that can be awarded for special assistance is $10,000, the NSW scheme can award lump sum payments of up to $15,000^[351] and the ACT scheme up to $26,250.^[352]

13.269 The Commission therefore considers that under the proposed Act, all victims should be eligible for a maximum amount of $20,000 as a recovery payment, or $25,000 for victims of ‘related criminal acts’.

13.270 Increasing the maximum lump sum payment under the scheme to $20,000 and extending eligibility to all victims (not just primary victims) raises questions of scheme sustainability. However, the Commission considers that these concerns would be addressed by the fact that recovery payments would combine the special financial assistance and recovery expenses categories. In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that one way to moderate the costs of an increase would be to review ‘the operation of “exceptional circumstances” awards [recovery expenses], and simplifying the requirements of the scheme’.^[353]

13.271 The Commission acknowledges stakeholder concerns regarding the current payment categories, which impose quantum ranges for special financial assistance awards based on the type of offence. Stakeholders submitted that these categories are inflexible and place too much emphasis on the offence, rather than its impact on the victim. The Commission therefore considers that under the proposed Act, there should be no such categories imposing quantum ranges for recovery payments.

13.272 Instead, decision makers should have broad discretion in determining the amount of a recovery award but should be required to take into account a victim’s specific circumstances. In the Commission’s view, this would help ensure that any amount awarded as a recovery payment reflects the extent to which the criminal act impacted on the victim. In particular the greater the impact of the crime, the greater the recovery payment should be.

13.273 The Commission therefore considers that in determining the amount of a recovery payment, decision makers should be required to have regard to the following non-exhaustive list of factors to be contained in the proposed Act:

• Whether the criminal act was directly perpetrated against the victim. A person may be more seriously impacted by a criminal act where the person was the target of the criminal act and/or would be considered to be the victim of the offence for the purposes of criminal law proceedings. However, it is not intended that this factor should be strictly applied. For example, the impact on a child who witnesses family violence may be just as significant as the impact on the person who was the direct target of that violence.

• The nature of the victim’s injury, including whether the criminal act resulted in the victim suffering a serious injury or serious disease. The decision maker should consider the seriousness of the injury, its impact on the victim’s day-to-day life, whether the injury is temporary or long-term, the likelihood of recovery and the nature of the recovery process.

• Whether the criminal act resulted in the death or serious injury of a person with whom the victim was in a close personal relationship. The victim is likely to have been deeply impacted by the criminal act in these circumstances, particularly if they have taken on a carer’s role as a result of it.

• Whether the victim was dependent on a person who died or was seriously injured as a result of the criminal act. A victim is likely to be significantly impacted by the criminal act if it affected the ability of a person to care or provide for the victim.

• Whether the victim was particularly vulnerable at the time of the criminal act, including because of the victim’s age, or because they had a mental illness, cognitive impairment or disability. The Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) currently provide for an ‘uplift’ for a victim who was a child, elderly or impaired at the time of the act of violence in limited circumstances only.^[354] However, in the Commission’s view, being subjected to any offence as a child, an older person or a person with a physical, psychological or cognitive impairment is reason alone for an uplift. Research demonstrates that experiencing violent crime can cause very significant harm to these vulnerable groups.^[355] This is similar to the approach taken in the Australian Capital Territory, where the age of the victim at the time of the act of violence (if they were under 18 or over 65) and the fact that a victim suffered from impaired physical, psychological or intellectual capacity at the time may be ‘circumstances of aggravation’.^[356]

• Whether the person who committed the criminal act was in a position of power, influence or trust in relation to the victim. The impact of a criminal act may be compounded where the victim trusted the offender, or where the offender had power or influence over the victim. For example, the victim may suffer from the loss of the relationship in addition to the injury suffered, or experience a sense of violation as a result of a breach of trust.

• Whether the criminal act occurred in the context of a pattern of abuse, including a pattern of family violence, as defined in the Family Violence Protection Act 2008 (Vic), or child abuse, as defined in the Child Wellbeing and Safety Act 2005 (Vic). The Commission acknowledges stakeholder concerns that currently, special financial assistance awards do not adequately recognise cumulative harm.^[357] This factor would enable non-criminal forms of abuse—including non-criminal family violence—and the cumulative impact of such violence, to effectively operate as an ‘uplift’ on the amount of a recovery payment.

• Whether there was a series of related criminal acts. Considering whether a victim suffered multiple related criminal acts and the impact that this may have had on the victim would be a similar approach to that in the Australian Capital Territory, where related criminal acts must be considered in a single application but ‘a series of offences that are related’ may be considered as a ‘circumstance of aggravation’ for the purposes of calculating lump sum payments.^[358]

• Whether the victim, or the person against whom the criminal act was committed (the direct victim), was involved in any criminal activity that was the primary reason that the criminal act that is the subject of the application was committed. This factor is intended to potentially reduce the amount of a recovery payment awarded to a victim where the victim’s (or direct victim’s)^[359] own criminal activity was the main reason that the criminal act was committed against them. This factor is not intended to be applied strictly to prevent vulnerable victims from receiving a recovery payment and is only one of many factors that the decision maker must consider. Nevertheless, the Commission considers that the scheme should not appear to reward applicants whose own criminal conduct has resulted in the act of violence committed against them and that it may be appropriate in certain circumstances to reduce an applicant’s recovery payment in light of an applicant’s own criminal activity. However, the Commission considers that an applicant’s criminal history more broadly, and other matters relating to an applicant’s character or attitude, should not be taken into account in calculating recovery payment amounts. This issue is discussed in Chapter 15.

13.274 This contextual approach was proposed by some stakeholders, including VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, in relation to family violence.^[360]

13.275 These factors may operate as uplift factors, enabling the amount of a recovery payment to be increased depending on, for example, whether the criminal act was committed directly against the victim and the severity of the victim’s injury. However, one factor may operate to decrease the amount that would otherwise be awarded—if the victim’s own involvement in criminal activity was the primary reason that the criminal act was committed against the victim.

13.276 The Commission considers that guidelines should be produced by the scheme to give further guidance to decision makers in determining recovery payment amounts and how the above factors should be applied. This would help ensure consistency in awards, as discussed further below.

Recovery plans as an alternative to a recovery payment

13.277 The Commission acknowledges stakeholder views that some victims can find it difficult to manage large sums of money in the aftermath of a criminal act.^[361] The Commission considers that victims who are entitled to a recovery payment should have the option to request that some or all of it be provided to them in accordance with a recovery plan.

13.278 Under a recovery plan, the amount that would otherwise be provided to a victim as a lump sum recovery payment (or a portion thereof) would be held in trust and administered by a scheme case manager on behalf of the victim for the purposes of paying for agreed specified expenses to assist in the victim’s recovery.

13.279 A recovery plan would be designed together with the victim and would enable amounts of money to be designated for specific recovery expenses—for example, a pet, gym membership or education or training course. Such amounts could then be provided directly to the retailer or service provider.

13.280 In the Commission’s view, the recovery plan should be optional for victims over 18 years of age, that is if the victim so chooses. This is to ensure that the scheme is not paternalistic in its approach towards victims. However, the Commission considers that recovery plans should be mandatory for victims under 18 until they turn 18. In addition, the Commission considers that the scheme decision maker should have the discretion to provide a victim with a recovery plan in circumstances in which the applicant is unable to manage a lump sum payment due to mental illness, cognitive impairment or disability. As discussed in Chapter 15, the scheme decision maker should also have the discretion to provide the victim with a recovery plan where they are satisfied on the balance of probabilities that the alleged perpetrator is likely to benefit from the recovery payment. In such cases it is proposed that the role of the scheme case manager would be to provide oversight to ensure that the payment is used only for expenses that will assist the victim in their recovery.

13.281 This approach would be a departure from the existing approach, where lump sum payments for special financial assistance are held on trust for children until they reach 18 years, with the effect that such child victims are unable to access the funds until after they turn 18. However, the Commission’s proposed approach would address the concerns expressed by the President of the Children’s Court by ensuring child victims of crime receive timely assistance.^[362] This approach also accords with the joint submission from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, that financial assistance for children who witness family violence may be more effective if used in a timely manner to provide ‘services focused on a child victim’s capacity-building, such as on-going counselling and funding of educational needs’.^[363]

Recommendations—recovery payments and

recovery plans

40 The proposed Act should provide that a lump sum recovery payment may be awarded by the scheme decision maker up to a specified maximum amount as determined according to the victim’s circumstances, including:

(a) whether the criminal act was directly perpetrated against the victim

(b) the nature of the victim’s injury, including whether the criminal act resulted in the victim suffering a serious injury or serious disease

(c) whether the criminal act resulted in the death or serious injury of a person with whom the victim was in a close personal relationship

(d) whether the victim was dependent on a person who died or was seriously injured as a result of a criminal act

(e) whether the victim was particularly vulnerable at the time of the criminal act, including because of the victim’s age, or because they had a mental illness, cognitive impairment or disability

(f) whether the person who committed, or is alleged to have committed, the criminal act was in a position of power, influence or trust in relation to the victim

(g) whether the criminal act occurred in the context of a pattern of abuse, including a pattern of family violence, as defined in the Family Violence Protection Act 2008 (Vic), or child abuse, as defined in the Child Wellbeing and Safety Act 2005 (Vic)

(h) whether there was a series of related criminal acts

(i) whether the victim’s, or direct victim’s, involvement in any criminal activity was the primary reason that the criminal act that is the subject of the application was committed.

41 The proposed Act should provide that the scheme decision maker may, at the request of an applicant, or at the discretion of the scheme decision maker having regard to an applicant’s mental illness, cognitive impairment or disability, award a recovery payment in accordance with a recovery plan which:

(a) details how some or all of the award is to be used to assist the victim’s recovery

(b) requires the award sum the subject of the plan to be held in trust and administered by a scheme case manager in accordance with the plan for the victim’s benefit.

42 The proposed Act should provide that a recovery plan is mandatory for victims who are under the age of 18 at the time the award is made.

Recognition

13.282 In its supplementary consultation paper, the Commission asked whether, in addition to the financial assistance, there are other ways to promote the recovery of victims from the effect of crime.^[364]

13.283 In response, the Commission heard that, for many victims, ‘acknowledgment and validation are the most valued outcomes from their participation in the victims of crime assistance scheme’.^[365] As discussed in Chapter 10, the Commission considers that the proposed Act should provide a new approach to the recognition of victims. In particular, the Commission considers that ‘recognition’ should be established as a separate stream of assistance.

13.284 The Commission is of the view that recognition of victims’ experience can and should be provided in non-pecuniary ways and that financial assistance should be focused on victims’ recovery, rather than on symbolic expressions of sympathy or condolence. As such, no financial assistance would be provided under the proposed ‘recognition’ stream. Instead, this would provide opportunities for victims to be heard and acknowledged, including via a ‘victim conference’ and/or ‘recognition statement’.

13.285 Victim conferences, and victim recognition more broadly, are discussed in Chapter 10, where the Commission also makes recommendations relating to the recognition stream of assistance. Victim recognition is also discussed in Chapter 11 in the section on ‘Purpose, objectives and principles of the Act’.

Amounts of assistance

13.286 The following section discusses:

• the total maximum amount of financial assistance that victims are eligible for under the VOCAA

• the requirement under the VOCAA that financial assistance is only awarded for ‘reasonable’ expenses incurred, or reasonably likely to be incurred

• the reduction of the total maximum amount of financial assistance in circumstances where there are multiple related victims or where the victim experienced multiple criminal acts which VOCAT treats as related criminal acts.

13.287 This section then makes recommendations regarding:

• the total maximum amount that may be awarded to a victim under the proposed Act in relation to each proposed stream of assistance

• the requirement that financial assistance is only awarded for expenses that are reasonable

• the total amount of financial assistance that multiple related victims may claim under the proposed Act

• the treatment of multiple criminal acts under the proposed Act where the criminal acts are related and experienced by the same victim.

Current law

13.288 Under the VOCAA, the maximum amount of financial assistance available for primary victims is $70,000 ($60,000 plus $10,000 for special financial assistance).^[366]

13.289 The maximum award for any secondary victim is $50,000.^[367]

13.290 The maximum award for any one related victim is $50,000.^[368] However, the maximum cumulative amount that may be awarded to all the related victims of any one primary victim—that is, the pool of related victims—is $100,000.^[369]

13.291 The maximum cumulative amount that may be awarded to a pool of related victims will also be reduced by an award made for funeral expenses, even if it was made to someone who was not a related victim.^[370]

13.292 In exceptional circumstances, however, VOCAT may award assistance to a related victim in excess of the maximum cumulative amount.^[371]

13.293 Any amount awarded in relation to one type of assistance (for example, medical expenses) will reduce the total amount available for other types of expense (for example, counselling).

13.294 Awards of financial assistance for loss of earnings are capped at $20,000.^[372]

13.295 The VOCAA requires most expenses to be reasonable. This applies to counselling services,^[373] medical expenses,^[374] safety-related expenses,^[375] other expenses for related victims,^[376] and recovery expenses.^[377]

13.296 The VOCAA provides that the Chief Magistrate may issue guidelines to assist Tribunal members in determining whether an expense is reasonable.^[378] For example, VOCAT has established guidelines to assist in determining whether funeral expenses are reasonable.^[379]

Related criminal acts

13.297 Related criminal acts may be treated as a single act of violence for the purposes of making an award.^[380] The effect of the related criminal acts provision is to reduce the amount of financial assistance payable to a victim of multiple related crimes.^[381]

13.298 Criminal acts are considered to be related in the following circumstances:^[382]

• they were committed against the same person and they occurred at approximately the same time

• they were committed against the same person, they occurred over a period of time and they were committed by the same person or group of people

• they were committed against the same person and they share some other common feature

• they each contributed to the injury or death for which an application is made, or

• VOCAT considers that they ought to be treated as related criminal acts.

13.299 VOCAT has the discretion not to treat related criminal acts as a single act if it considers that in ‘the particular circumstances of [the] acts, they ought not to be treated as related’.^[383]

Responses

Total maximum amounts

13.300 In its supplementary consultation paper, the Commission asked whether the maximum amounts of financial assistance available under VOCAA are adequate to meet the needs of victims.^[384]

13.301 In consultations, stakeholders told the Commission that the current maximum amounts of financial assistance available to each victim category are inadequate^[385] and that the maximum amount that may be awarded as special financial assistance is also inadequate.^[386]

13.302 In particular, stakeholders stated that the current maximum amount is not sufficient to meet victims’ ongoing medical and care needs.^[387] Stakeholders also noted that current maximum amounts do not adequately reflect the costs associated with relocation and housing often incurred by victims of family violence.^[388]

13.303 In addition, stakeholders submitted that the total maximum amounts have not increased in a very long time and should, at a minimum, be adjusted to reflect inflation.^[389]

13.304 Another concern voiced by stakeholders was that the total maximum financial assistance available under the VOCAA is out of step with other schemes. It was noted that the Commonwealth Redress Scheme for Institutional Child Sexual Abuse would provide a maximum of $150,000, substantially more than the $70,000 available under the VOCAA for primary victims and this inconsistency between schemes would cause unfairness to victims of non-institutional child abuse.^[390]

13.305 Most stakeholders considered that the total maximum award should be increased. However, views varied as to what the total maximum should be. Springvale Monash Legal Service proposed that the total maximum for primary victims should be increased to $100,000 in order to reflect inflation.^[391] Another stakeholder considered that the quantums should be at least doubled or tripled.^[392] Other stakeholders stated that the total amount available should be reviewed according to evidence-based research concerning

victims’ needs.^[393] Ryan Carlisle Thomas Lawyers considered that quantums should be indexed.^[394]

13.306 A minority view was that there should be no set maximum award and that financial assistance should be awarded according to victims’ needs.^[395]

13.307 In contrast, some stakeholders told the Commission that the current maximum is sufficient, but the average award of around $7000 is too low.^[396] Inner Melbourne Community Legal submitted that there needs to be better guidance regarding how award quantums are calculated so that there is greater consistency and reliability for applicants.^[397]

Reasonableness requirement

13.308 In its supplementary consultation paper, the Commission asked whether it was appropriate for the VOCAA to require that the costs for certain expenses, such as counselling services, be ‘reasonable’.^[398]

13.309 Stakeholders expressed divergent views in response to this question. A number of stakeholders saw no issue with the requirement.^[399] However, the Commission was told that there needs to be greater guidance about how ‘reasonable’ is interpreted by VOCAT.^[400]

13.310 In particular, some stakeholders considered that a definition of reasonable should be introduced into the VOCAA in relation to expenses.^[401] The Commission was told that the definition of reasonable should be ‘therapeutic’ in nature.^[402] Some stakeholders noted that the definition of reasonable should be focused on assistance rather than recovery,^[403] and that it should also take into account individual needs.^[404]

13.311 Other stakeholders proposed that there should be set fees for certain expenses, such as counselling,^[405] and that these should reflect actual costs and be indexed.^[406]

13.312 In contrast, some stakeholders supported removing the reasonableness requirement entirely.^[407]

13.313 Other stakeholders submitted that the requirement should only apply to counselling and medical expenses,^[408] or, conversely, that these are the types of expense to which the reasonableness requirement should not apply.^[409]

13.314 Knowmore submitted that the reasonableness requirement should not apply to counselling expenses for victims of child sexual abuse, noting the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse that counselling services for survivors should be lifelong and accessible on an episodic basis.^[410]

Related victim pool

13.315 In its supplementary consultation paper, the Commission asked whether the pool of assistance for related victims should be removed and if not, whether there should be an increase in the maximum cumulative amount of assistance available for a pool of related victims.^[411]

13.316 A number of stakeholders told the Commission that the cap on awards for multiple related victims presents difficulties for these victims.^[412] This is because it can:

• result in conflict between family members^[413]

• disadvantage large families^[414]

• complicate applications and cause delays^[415]

• result in inconsistent amounts being awarded to related victims.^[416]

13.317 Some stakeholders considered that the pool of assistance for related victims should be removed.^[417] Ryan Carlisle Thomas Lawyers submitted that the VOCAA could ‘subject related victims to a maximum award akin to primary and secondary victims’,^[418] with the same maximum award as is currently available to primary victims ($60,000).^[419]

13.318 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also supported removal of the related victim pool.^[420] To ensure that the scheme remains sustainable, they proposed narrowing the definition of related victim to include immediate family members only.^[421]

13.319 An alternative proposal was to adjust the overall maximum amount for related victims according to the number of applicants.^[422]

13.320 One stakeholder stated that a new category of award should be created for related victims called a ‘bereavement award’.^[423]

13.321 Anglicare Victoria Victims Assistance Program submitted that the related victim pool should be maintained, but that funeral expenses should be removed.^[424]

13.322 Another proposal was to also remove counselling and medical expenses from the related victim cap.^[425] Ryan Carlisle Thomas Lawyers stated that such expenses should be viewed separately to distress payments, as they are to special financial assistance in the case of primary victims.^[426]

Related criminal acts

13.323 In its first consultation paper, the Commission asked a number of questions about whether the related criminal acts provision should be amended to better address the experiences of family violence victims, including the cumulative impact of such violence.^[427]

13.324 In its supplementary consultation paper, the Commission asked whether:

• the definition of ‘related criminal acts’ should be amended to reflect the cumulative harm of long-term abuse

• victims should be given an opportunity to object if claims are to be treated as related

• there should be a higher maximum for awards of financial assistance for victims of a series of related criminal acts.^[428]

13.325 In response to the consultation papers, stakeholders confirmed that the related criminal acts provision can unfairly reduce the amount of assistance available to a victim under the existing scheme and trivialise the experience of victims of protracted abuse.^[429] This is because the related criminal acts provision can operate to reduce the amount of financial assistance that victims of multiple criminal acts might otherwise be eligible for if they were able to make multiple applications under the scheme in relation to each of those criminal acts.^[430] Victims of family violence are particularly affected by the related criminal acts provision because ‘domestic violence, almost by definition, will involve repeated acts of abuse by the same offender’.^[431]

13.326 As the Magistrates’ Court of Victoria and the Children’s Court of Victoria jointly submitted to the Royal Commission into Family Violence, the related criminal acts provision means:

that a victim of long-term, chronic family violence (a series of related acts) is placed on an equivalent footing to someone who has been injured in a one-off assault, for example in a brawl between strangers.^[432]

13.327 In addition, Merri Health Victims Assistance Program noted that the related criminal acts provision fails to reflect victims’ needs, as victims of long-term abuse can require substantially more support than victims who experience an isolated incident of violence.^[433]

13.328 Where family violence victims make multiple applications for assistance, this creates a burden for both the victim and for VOCAT, and causes delays.^[434] While there is no data in VOCAT’s 2016–17 annual report about how often the related criminal acts provision is used, and the extent to which it affects the timeliness of awards, this issue was highlighted in the joint submission of VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria.^[435]

13.329 A number of stakeholders considered that applicants should be able to object to VOCAT treating multiple acts of violence as related.^[436] However, Ryan Carlisle Thomas Lawyers stated that the VOCAA would not need to be amended to enable applicants to object, as VOCAT currently has a discretion to treat acts of violence as related, thereby providing applicants with an opportunity to object.^[437]

13.330 Another common proposal was to increase the quantum of awards for victims of related criminal acts.^[438] Some stakeholders submitted that the quantum of awards should only be increased in relation to special financial assistance.^[439] Other stakeholders proposed increasing the overall maximum amount available for victims of related criminal acts, as is done in Tasmania.^[440] Some stakeholders stated that this could be done by increasing the award by a percentage.^[441]

13.331 In addition, there was one proposal to increase the overall maximum award in the VOCAA and to give the decision maker greater discretion to provide higher awards where there has been a series of related criminal acts.^[442]

13.332 Some stakeholders submitted that the definition of related criminal acts should be amended to recognise cumulative harm.^[443] One stakeholder submitted that the definition of related criminal acts in the VOCAA should start with: ‘Having regard to the cumulative harm of long term abuse…’.^[444] Inner Melbourne Community Legal proposed adopting a similar approach to the approach in the Australian Capital Territory, which does not require related acts to be treated as one act of violence unless to do otherwise would result in the victim receiving a disproportionate award, or for another reason prescribed in the regulations.^[445]

13.333 Some stakeholders also considered explicitly excluding family violence from the related criminal acts provision.^[446]

Discussion and recommendations

13.334 The Commission acknowledges stakeholder concerns that the current maximum amounts available under the VOCAA are inadequate for victim needs,^[447] and out of step with comparable schemes.^[448] In response to submissions and consultations, the Commission considers that the maximum quantum of assistance available under the proposed Act should be increased. The proposed quantums are broadly consistent with those in other jurisdictions, as discussed below.

13.335 The Commission also considers that the amounts of financial assistance available under the proposed Act should be indexed, so that the amounts continue to increase in line with inflation. This would rectify an issue identified with the VOCAA, which does not provide for the indexing of award amounts, and would respond to concerns raised by a number of stakeholders.^[449]

13.336 The Commission also considers that the quantums should be prescribed by the proposed Act, rather than by regulation. In light of significant stakeholder concern regarding the inadequacy of the maximum amounts under the VOCAA, this approach would ensure that the maximum amounts available under the proposed scheme can only be reduced by an amending enactment of parliament. However, to enable the amounts to be easily increased in response to changing victim needs and any rising costs associated with certain forms of assistance, the Commission considers that it should be possible for higher maximum amounts to be prescribed by regulation.

Total maximum amounts

13.337 The Commission considers that an increase in the total maximum quantum is appropriate, given that the quantums under the VOCAA have not increased in many years and have not been adjusted to reflect inflation.^[450]

13.338 The Commission notes that the Royal Commission into Institutional Responses to Child Sexual Abuse recommended that a total maximum of $200,000 be available for any one victim under its proposed Commonwealth Redress Scheme, with an average payment of $65,000.^[451] This is significantly higher than the total maximum amounts under the VOCAA.

13.339 The Commission’s proposed quantums for each stream of assistance are discussed below.

Immediate needs

13.340 As noted above, the Commission considers that all victims should be eligible for a maximum amount of $5000 for the immediate needs stream of assistance, which would include emergency housing, urgent safety expenses and urgent medical expenses.

13.341 Any amounts awarded for immediate needs would not automatically count towards the victim’s total maximum quantum of assistance—as discussed above, the scheme decision maker would have discretion to take into account any amount awarded for immediate needs when determining the amount to award a victim under other streams of assistance.

13.342 The Commission notes that the proposed inclusion of a maximum cap of $5000 for awards for immediate assistance represents a shift in approach from the VOCAA, which treats interim awards as an advance on the maximum award of assistance that can be awarded to a particular victim.

13.343 Under the Commission’s proposed approach, awards of financial assistance for immediate needs would be under a separate stream and would be final.

13.344 A maximum amount of $5000 for immediate needs would be consistent with the approach in New South Wales, where final awards can be granted to primary victims for immediate needs up to a maximum of $5000 to ‘cover expenses for treatment or other measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim’s safety, health or wellbeing’.^[452]

Funeral expenses

13.345 The Commission considers that victims should be eligible for a maximum amount of $15,000 for reasonable funeral expenses, to be determined in accordance with guidelines produced under the proposed Act.

13.346 This amount is broadly consistent with the maximum available under the existing VOCAT guidelines.^[453] Although some stakeholders submitted that the amounts available for funeral expenses under the existing scheme are inadequate,^[454] the existing maximum of $15,000 is already significantly higher than the maximum amount available for funeral expenses in other jurisdictions.

13.347 The Commission considers that any amount awarded for funeral expenses should

not reduce a victim’s maximum quantum for other streams of assistance, nor should it affect the amount of assistance that another victim can claim in relation to the same criminal act.

Counselling

13.348 In the Commission’s view, victims should be eligible for an initial 20 counselling sessions, with an option to access additional counselling sessions in exceptional circumstances, without a limit on the total number of sessions or the time period. This would be consistent with the approach under the NSW scheme.

13.349 What constitutes reasonable counselling expenses and exceptional circumstances should be outlined in guidelines produced under the proposed Act, is discussed further below.

Practical assistance

13.350 In the Commission’s view, victims should be eligible for a maximum amount of

$80,000 for the practical assistance stream, with a cap of $20,000 for the financial support sub-category.

13.351 This would mean that the amount available under proposed Act for practical assistance would be higher than the amounts available for comparable expenses in other states.

• Under the NSW scheme, victims may be awarded up to $30,000 for ‘economic loss’ (in addition to counselling expenses, $5000 for immediate needs and up to $10,000 for a ‘recognition payment’)^[455]

• Under the ACT scheme, victims are eligible for up to $30,000 for loss of earnings, in addition to up to $10,000 for immediate needs and up to $26,250 for a ‘recognition payment’.^[456]

• Under the South Australian scheme, victims are eligible for assistance of up to $100,000, which encompasses all types of assistance.^[457]

13.352 The Commission considers that its proposed maximum amount for practical assistance is appropriate in light of stakeholders’ concern that the current total amounts are inadequate to address victims’ needs, particularly ongoing medical and care needs,^[458] and the costs associated with relocation and housing often incurred by victims of family violence.^[459] The current quantums may also be inadequate to meet the practical needs of victims suffering permanent and serious disability as a result of a criminal act.^[460]

Recovery payment

13.353 The Commission acknowledges stakeholder views that the current maximum amount of $10,000 available to primary victims as special financial assistance is inadequate.^[461] Under the proposed Act, this amount should be doubled so that victims are eligible for a maximum amount of $20,000 for a recovery payment, or $25,000 for a victim of related criminal acts.

13.354 This amount is broadly consistent with the approach in the Australian Capital Territory, where victims are eligible for a ‘recognition payment’ of up to $26,250.^[462] However, the Commission’s proposed quantum is higher than in other states. The maximum amount that victims may receive as a ‘recovery payment’ under the NSW scheme, or as ‘special financial assistance’ under the Queensland scheme, is $10,000.^[463]

13.355 Having regard to scheme sustainability, the Commission considers that under the proposed Act, not all victims would receive the maximum amount available as a recovery payment. Under the proposed Act, in determining the amount to award a victim as a recovery payment, the decision maker would be required to consider the victim’s specific circumstances, including a number of factors, such as the nature of the victim’s injury.

Recommendation—amounts of assistance

43 The proposed Act should provide that the maximum amounts that can be awarded by the scheme decision maker should be prescribed as follows, and should be subject to indexation:

(a) the following maximum amounts:

(i) $5000 for immediate assistance

(ii) $15,000 for funeral expenses

(iii) $80,000 for practical assistance, with a cap of $20,000 for financial support

(iv) $20,000 for a recovery payment, or $25,000 for applicants who were the victim of two or more related criminal acts, or

(b) any such higher maximum amounts for any items in paragraph (a) as may be prescribed by regulation.

Reasonableness requirement

13.356 As required by the supplementary terms of reference, the proposed Act must ensure that state funds are spent appropriately and that the scheme is financially sustainable. The Commission considers that retaining a requirement that assistance may only be provided for reasonable expenses would help ensure the scheme’s sustainability by limiting the amount that may be awarded for any particular expense.

13.357 The Commission also considers that it is important that, as far as possible, victims in the same position receive the same amounts of assistance for the same types of expense. Imposing a reasonableness requirement on expenses covered by the proposed Act would help to achieve this and is consistent with other compensation schemes in both Victoria and other jurisdictions.^[464]

13.358 Under the proposed Act, it should continue to be the case that awards can only be made for reasonable expenses incurred, or reasonably likely to be incurred.

13.359 The Commission acknowledges stakeholder submissions that greater clarity is needed regarding what constitutes ‘reasonable’ under the VOCAA.^[465] To address this guidelines should be produced which outline what types of expense are considered reasonable for the purposes of the proposed Act and/or the reasonable costs for such expenses, where such costs and types of expense are likely to be similar across victims. This issue is discussed further below.

Recommendations

44 In making any award for expenses, the proposed Act should provide that the scheme decision maker must be satisfied that the expenses incurred, or reasonably likely to be incurred, are reasonable.

45 To assist the scheme decision maker in determining whether an expense is reasonable, guidelines should be developed and should be made publicly available.

Abolishing the related victim pool

13.360 In Chapter 12, the Commission proposed that the existing victim categories in the VOCAA be abolished and that the proposed Act instead include a single, expansive definition of victim.

13.361 This approach would mean that under the proposed Act, any victim would be eligible for the maximum amount of financial assistance available, regardless of whether there are applications from multiple victims relating to the same criminal act. This means that the related victim pools would not exist under the proposed Act.

13.362 In the Commission’s view, all victims should be entitled to receive the amount of assistance necessary to aid their recovery, subject to the prescribed maximum amounts. Limiting assistance through related victim pools is not a victim-centred approach and can result in some victims receiving less assistance than they may need and would otherwise be entitled to if they were not a related victim under the VOCAA.

13.363 The Commission notes that the Queensland Department of Justice and Attorney-General also recommended abolishing victim pools in its review of the Victims of Crime Assistance Act 2009 (Qld).^[466] Queensland has since introduced an amendment removing the pools of assistance from its scheme.^[467]

13.364 There are no pools of assistance for related victims in either the NSW or ACT schemes, both of which have similar victim categories to Victoria’s existing categories.^[468]

13.365 The Commission also considers that abolishing victim pools would help to address the issue of the complex application process for related victims under the VOCAA, and the resultant delays in awards.

Recommendation

46 The proposed Act should not include any collective cap on assistance for multiple victims whose claims relate to the same criminal act.

Related criminal acts

13.366 The Commission acknowledges stakeholder concerns that the current related criminal acts provision can disproportionately disadvantage those victims who experience multiple acts of violence committed by a single offender, particularly victims of family violence. The related criminal acts provision can unfairly affect victims of other forms of long-term abuse, such as child abuse, elder abuse and abuse of people with disability. These forms of abuse are also often perpetrated by the same offender and in the same location.^[469] As such, they are likely to be treated as related.

13.367 However, these concerns need to be balanced with the need to ensure the sustainability of the proposed scheme and to reduce the administrative burden on victims and the scheme decision maker.

13.368 In the Commission’s view, the related criminal acts provision has an important function in limiting the circumstances in which an individual victim is eligible for assistance where there is more than one related criminal act. This protects the sustainability of the scheme and helps ensure that the state is able to provide assistance to other victims.

13.369 The Commission considers that under the proposed Act, the concept of related criminal acts should be retained, with the effect that where the applicant was the victim of related criminal acts, as is currently defined in the Victims of Crime Assistance Act 1996 (Vic), the scheme decision maker must treat the related criminal acts as a single act of violence for the purposes of making an award of assistance.^[470]

13.370 The Commission acknowledges the concerns expressed by some stakeholders regarding the operation of the related criminal acts provision under the VOCAA, and considers that these would be addressed by the following aspects of the proposed Act:

• Victims of multiple acts of violence may be entitled to a larger recovery payment because recovery payments under the proposed Act would be determined based on the victim’s specific circumstances, including whether the criminal act occurred in the context of a pattern of abuse involving child abuse or family violence. This would address the issue that the related criminal acts provision disadvantages victims of these types of crime.

• The decision maker would be required to consider whether the alleged offender was in a position of power, influence or trust in relation to the victim and whether the victim was particularly vulnerable at the time of the criminal act, including because of the victim’s age, or because they had a mental illness, cognitive impairment or disability. These factors may also enable acknowledgment of the experiences of victims of family violence and other forms of protracted abuse by a single perpetrator.

• Victims of related criminal acts would be eligible for a higher maximum recovery payment under the proposed Act—$25,000 instead of $20,000, as outlined above. This would also address stakeholder concern that the current scheme fails to

acknowledge the experience of victims of multiple criminal acts who can only make a single application for assistance because those criminal acts are related.

13.371 As is currently the case, the Commission considers that the scheme decision maker should have the discretion not to treat two or more criminal acts as related criminal acts.

13.372 In the interests of transparency, and consistency, the Commission considers that guidelines should be developed and made publicly available, specifying the circumstances in which two or more criminal acts should be treated as related criminal acts.

Recommendations—related criminal acts

47 The proposed Act should:

(a) provide that where an applicant is the victim of ‘related criminal acts’ the scheme decision maker must treat the related criminal acts as a single criminal act for the purposes making any award of assistance

(b) include a definition of the term ‘related criminal acts’ modelled on the definition in section 4 of the Victims of Crime Assistance Act 1996 (Vic).

48 To assist the scheme decision maker in determining whether two or more criminal acts are related criminal acts, guidelines should be developed and should be made publicly available.

Form of payment

Current law

13.373 VOCAT has discretion to make all or part of an award payable to the applicant or to any other person for the applicant’s benefit.^[471]

13.374 In addition, the award may be paid as a lump sum, in instalments, or as a combination of both.^[472]

13.375 The VOCAT website states: ‘Amounts awarded to an applicant for expenses not yet incurred are only payable on the submission of an invoice or receipt relating to the particular expense.’^[473]

Responses

13.376 Most stakeholders did not identify any issues with the VOCAA’s form of payment provisions. However, in consultation’s, legal professionals told the Commission that it can be difficult for some victims to pay for expenses upfront and then have to wait for VOCAT to reimburse them.^[474] The Commission was told that some victims have to wait a considerable amount of time before they are reimbursed for medical expenses, sometimes 46 weeks or more.^[475] As such, one participant submitted that where victims produce a quote for an expense for which financial assistance is then awarded, the victim should not be required to provide a receipt in order to receive that financial assistance.^[476]

Discussion and recommendations

13.377 As most stakeholders did not express concern with the current form of payment provisions, the Commission considers that these provisions should be retained under the proposed Act.

13.378 As discussed in Chapter 10, case managers under the proposed scheme would work closely with victims throughout the application process. The form of payment provisions would enable decision makers to make an award for assistance payable directly to the victim, or directly to goods or services providers where the victim requests this from their case manager, or where the decision maker considers it otherwise appropriate. The provisions would also enable an award to be paid as a lump sum, in instalments, or partly as a lump sum and partly in instalments.

13.379 The Commission considers that these provisions could be used to address the concern expressed by some stakeholders that it may be difficult for some victims to pay for expenses upfront.

Recommendation—payment of awards

49 The proposed Act should provide that the scheme decision maker has the discretion to make all or part of any award:

(a) payable to the applicant or to any other person for the applicant’s benefit

(b) as a lump sum payment, a payment by instalments, or a payment partly as a lump sum and partly in instalments.

Variation of awards

Current law

13.380 Under the VOCAA, victims may apply to have their award varied within the six years after the award was made.^[477] VOCAT has broad discretion to vary awards ‘in any manner that the Tribunal thinks fit’.^[478] VOCAT may vary the terms of an award or increase or decrease the amount.^[479]

13.381 In considering an application for variation, VOCAT must have regard to:

• any fresh evidence

• any change of circumstances

• any other payments received by the applicant

• any other relevant factors.^[480]

13.382 VOCAT must not vary an award if the application for variation is made more than six years after the original award, unless the applicant was under 18 when the award was made.^[481] Where this is the case, the applicant may apply for a variation up until age 24.^[482]

Responses

13.383 The supplementary consultation paper identified two key issues regarding variations of awards:

• The variation process. Most variations require additional paperwork to be filed via lawyers and other professionals, increasing delay and limiting flexibility and continuity in provision of services such as counselling.

• The variation window. VOCAT must not vary an award if the application for variation is made more than six years after the original award was made, unless the applicant was then under 18.^[483]

13.384 In its supplementary consultation paper, the Commission asked whether the six-year period for variation of an award should be extended to account for victims’ long-term needs.^[484] If so, the Commission asked what the time limit should be and whether this should apply to specific crimes or types of award only.

13.385 The Commission also asked how the variation process impacts on victims and whether there is a need to make the process more accessible and timely.^[485]

Variation process

13.386 Some stakeholders spoke positively about the variation process. Legal professionals told the Commission that the variation process works ‘quite well’.^[486] They stated that the variation process is sufficiently straightforward that some victims applying for variations do not require legal assistance, as psychologists are able to submit documentation direct to VOCAT.^[487] However, another submission stated that this is not the case, but that treating professionals should be able to make requests for further treatment directly to VOCAT, as is the case for the WorkCover and Transport Accident Commission (TAC) schemes.^[488]

13.387 Other stakeholders considered the variation process inefficient and inconsistent. The Commission was told about a matter where a victim was granted an award for dental expenses and then went overseas for three years before having the dental work done.^[489] When the victim returned, the dentist specified in the award was no longer practising. The victim therefore sought a variation from VOCAT to enable him to obtain treatment from another dentist. A registrar refused the variation on the basis that the victim should have had the dental treatment earlier. This decision was overturned on appeal but legal costs were refused because VOCAT held that the applicant could have obtained the variation without legal assistance, even though the variation was initially denied.^[490]

13.388 Other stakeholders submitted that the variation process is administratively burdensome, with victims having to provide fresh evidence and subsequent reports, which result in delays and increased costs for the victim and the scheme.^[491] The Aboriginal Family Violence Prevention & Legal Service Victoria told the Commission that the process is ‘unnecessarily legalistic, time-consuming and burdensome’.^[492] The Commission was also told the variation process is ‘more churn and burn and waste of time/resources/money’.^[493]

13.389 Ryan Carlisle Thomas Lawyers submitted that some victims are discouraged from applying for variations because of the administrative burden.^[494] The Commission was told that the variation process may be traumatic for some victims,^[495] with one victim likening it to having to ‘beg’ for additional counselling, and having to go through yet ‘another process’.^[496]

13.390 Inner Melbourne Community Legal submitted that where victims are seeking additional counselling or medical expenses, a form completed by a GP should be sufficient.^[497]

13.391 It was also submitted that the variation process is unclear and that victims are not aware of the six-year time limit.^[498] In particular, the Commission was told that there is confusion about whether the six-year variation period commences from the date of the crime or from the date that the award is made.^[499]

13.392 The Commission was told that applications for variations should be determined more quickly and that the decision making time is inconsistent between courts.^[500] In particular, the magistrate who originally heard the application may want to consider any variations sought in relation to that application, which can cause delays in processing the variation request.^[501]

13.393 Delays in determining variation applications frequently occur where the variation involves assistance for counselling. One stakeholder therefore proposed that decisions regarding counselling assistance, including variation applications, should be determined administratively rather than judicially.^[502]

Variation window

13.394 A significant number of stakeholders considered the six-year variation window to be too narrow.^[503] Hume Riverina Community Legal Service stated that the variation window is an ‘arbitrary’ limit.^[504]

13.395 The Commission was told that this time period does not recognise the potentially lifelong effects of crime. Victims’ representatives told the Commission that the full extent of grief for the loss of a loved one may not be realised until at least five years after their death.^[505]

13.396 The Commission heard that the effects of family violence may extend over a number of years.^[506] One stakeholder noted that unforeseen expenses related to family violence often emerge in the longer term, especially for child victims of family violence.^[507] Similarly, another stakeholder noted that where the victim is a child, it is not always obvious what the child’s future needs will be.^[508] VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposed expanding the factors that VOCAT must consider when determining out-of-time applications to include ‘specific regard for the presence of family violence, sexual assault or child abuse’.^[509]

13.397 The Commission was told that the six-year time limit does not adequately account for the complexity of medical and dental injuries, which may take longer than six years to treat or to stabilise sufficiently to determine the extent to which treatment will be needed.^[510]

13.398 Some stakeholders told the Commission that there should be no time limit on victims’ access to counselling and that victims should not be required to continue to fill out forms or re-apply or vary awards for counselling, as such requirements can be re-traumatising.^[511]

13.399 The Commission was told that lawyers will sometimes seek an interim award while determining the client’s longer-term needs. This is because once a final award has been granted, ‘the clock starts ticking’ for variations.^[512]

Discussion and recommendations

The benefits of a variation process or a process to enable additional awards of assistance

13.400 As identified in the supplementary consultation paper, there are benefits to having a procedure to vary awards after they are made.^[513] Variations have given VOCAT the flexibility to provide additional awards as victims’ situations change or new needs emerge. Variations also acknowledge that a victim’s journey is not always predictable. This was confirmed by consultations and submissions, which identified issues with the variation process and time limit but not with variations themselves.

13.401 As with the existing scheme, the Commission considers that there are benefits associated with imposing a time limit within which such applications for further assistance may be made. A time limit contributes to certainty and sustainability, as it provides an indication of the extent to which additional funds may be needed for such additional awards of assistance at any point in time.

13.402 The Commission is also of the view that victims’ longer-term needs—for example, where a victim is permanently unable to work—are likely to be met through other support or welfare systems, such as the public health and social security systems. This may reduce the need for a victims of crime scheme to provide ongoing assistance beyond a particular timeframe.

13.403 The proposed Act should provide a mechanism which enables victims who have already received an award of assistance to apply for further assistance related to the criminal act the subject of their initial application, without needing to re-establish their eligibility. However, given the administrative nature of the proposed scheme, the Commission considers the variation process should be reconceived as a right for eligible victims, where they have already received an award of assistance, to be able to apply for further assistance related to the criminal act the subject of their initial application, without needing to re-establish their eligibility.

13.404 In addition, having regard to the views expressed by stakeholders, the Commission considers that different time limits and processes should apply under the proposed Act. These proposals are discussed below.

Increasing the application time limit for awards of additional assistance

13.405 The Commission notes that there is little precedent for increasing the time limit beyond six years, given that the time limits which apply under victims of crime assistance schemes in other Australian jurisdictions vary between three and seven years.^[514] However, the Commission acknowledges stakeholder concerns that the current six-year window does not adequately take into account the potential long-term effects of crime on victims.

13.406 The Commission notes that the Betrayal of Trust report stated that VOCAT’s inability to provide ongoing financial support to victims is a significant limitation of the scheme.^[515] The Committee acknowledged that although comparable compensation schemes—such as those of the Transport Accident Commission and the Department of Veterans’ Affairs—are not designed to cater indefinitely for ongoing costs, they do assist victims to recover from their injury over a longer period of time than six years.^[516] For example, one victim told the inquiry that assistance from Veterans’ Affairs provides a more appropriate ‘safety net’ for victims.^[517]

13.407 The Commission considers that the application window for further assistance should be extended from the current six-year time limit to a period of 10 years from the grant of an initial award under the proposed Act—or, for child victims, 10 years from the date that the victim turns 18. As submitted by the Judicial Advisory Group on Family Violence, the Commission considers that extending the time limit for only certain types of crime would be unfair, ‘as variation may be necessary to meet the needs of any crime victim’.^[518]

13.408 In addition, to reflect the potentially lifelong effects of crime, it should be possible to extend the window beyond 10 years in exceptional circumstances.

13.409 However, to ensure scheme sustainability, the Commission considers that it should only be possible to obtain further assistance beyond the 10-year period for health-related expenses where the injury suffered as a result of the criminal act has either persisted beyond, or developed after, that 10-year period.^[519]

13.410 To ensure transparency and consistency, the Commission considers that guidelines to assist the scheme decision maker should be developed and made publicly available, outlining the circumstances in which exceptional circumstances are likely to be found to extend the 10-year application window.^[520]

13.411 As outlined in the section above on ‘Counselling’, the Commission considers that victims should be eligible for the reasonable costs of up to 20 counselling sessions and, in exceptional circumstances, for any number of further counselling sessions as are required, without any time limit or maximum quantum applying. The Commission therefore notes that under the proposed Act, no time limit would apply for the counselling stream of assistance.

Applications for further assistance process

13.412 The Commission acknowledges stakeholder concerns that the current variation process can be administratively burdensome for victims and often requires legal assistance.

13.413 To reduce the administrative burden, the Commission considers that eligible victims should be able to make an application for further assistance at any time during the 10-year period following their initial award of assistance—or, for child victims, up until 10 years from the date they turned 18—and that they should be able to do so by written request to the scheme decision maker. In practice, the Commission considers that the power to grant further assistance should be delegated to scheme case managers.

Awareness of time period

13.414 In response to stakeholder concern that there is a lack of awareness under the existing scheme about when the variation period commences and when it expires, the Commission considers that the scheme decision maker should be required to notify victims in writing that their 10-year time period for any further applications for assistance is due to expire one year prior to that expiration date.

Recommendations—additional awards of assistance

50 The proposed Act should provide that where a victim has received an award of financial assistance, they may apply to the scheme decision maker:

(a) for additional awards of assistance, without the need to re-establish eligibility:

(i) for adult victims, for a 10-year period following the date of their initial award of assistance, or

(ii) for victims who were under the age of 18 at the time of their initial award of assistance, for a 10-year period from the date that victim turns 18, and

(b) after the end of the applicable time period, for awards of assistance for additional health-related expenses, without the need to re-establish eligibility, where:

(i) the expenses relate to an injury suffered as a result of the criminal act that persists beyond the end of the 10-year period, or

(ii) the injury does not develop until after the end of the 10-year period.

51 The proposed Act should provide that in making an award for additional health-related expenses outside the applicable time period, the scheme decision maker must be satisfied that there are exceptional circumstances justifying the making of the award.

52 The proposed Act should provide that where a victim has received an award of financial assistance, they must be notified in writing that the applicable time period is due to expire, one year prior to that expiration date.

53 To assist the scheme decision maker in determining an application for additional health-related expenses lodged outside the applicable time period, including in determining whether there may be exceptional circumstances, guidelines should be developed and made publicly available.

Consistency in awards

Current law

13.415 The VOCAA provides that the Chief Magistrate may issue guidelines for VOCAT to take into account when determining whether an expense is reasonable. For example, such guidelines have been produced for the purposes of determining reasonable legal costs^[521] and funeral expenses.^[522]

Discussion

13.416 In the Commission’s view, developing guidelines to aid the scheme decision maker in determining award amounts, and making them publicly available, would promote consistency in awards. Such guidelines can also improve transparency, by making it clear to applicants on what basis awards are determined and amounts likely to be awarded. As stated in the joint submission received from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, guidelines may improve consistency and predictability in a number of areas of broad discretion, including what goods and services are ‘reasonable and specific to recovery’ and reasonable amounts for these goods and services.^[523]

13.417 Consistency in awards, and lack of transparency about how award amounts are determined, were consistent concerns for stakeholders. The Commission therefore considers that under the proposed Act guidelines should be produced to guide the scheme decision maker in determining both award amounts and as to what constitutes a reasonable expense.

13.418 As outlined in the recommendations above, and as a minimum, the Commission considers that to assist the scheme decision maker, guidelines should be developed and made publicly available in relation to:

• immediate needs—the circumstances in which the scheme is likely to grant an award for immediate assistance

• funeral expenses—types and amount of expenses considered to be reasonable

• counselling expenses—reasonable cost per session and for report writing and the circumstances in which exceptional circumstances are likely to apply to enable an award of counselling to be made beyond the initial 20 sessions

• housing expenses—types and amounts of relocation and resettlement expenses that are considered to be reasonable

• safety expenses—types and amounts of expenses that are considered to be reasonable

• financial support—how loss of earnings and dependency payments are calculated, and number of financial counselling sessions and cost per session considered to be reasonable

• education and return to work—types and amounts of expenses that are considered to be reasonable

• other expenses—types and amounts of expenses that are considered to be reasonable

• recovery payments—how the factors that the decision maker is required to consider in determining recovery payment awards should be applied in practice. For example, the guidelines could indicate the average recovery payment should fall in the middle of the maximum amount of $20,000 (or $25,000 for victims of related criminal acts) and identify which factors are intended to increase or decrease the payment amount.

• recovery plans—the form of such plans and the process for developing and varying them

• related criminal acts—the circumstances in which two or more criminal acts should be treated as related criminal acts, to assist a scheme decision maker in exercising their discretion under the related criminal acts provision

• additional awards of assistance—the circumstances in which exceptional circumstances are likely to apply to enable additional awards to be made beyond the applicable 10-year time period.

13.419 The Commission notes that as other expenses, such as medical expenses, may vary widely depending on the nature of a victim’s injury, it may not be possible to produce cost guidelines for such expenses.

1. Victims of Crime Assistance Act 1996 (Vic) s 8(2).

   ↑

2. Ibid s 8(3).

   ↑

3. Ibid ss 1(2)(b), 8A.

   ↑

4. Ibid s 8(4).

   ↑

5. Ibid s 10(2).

   ↑

6. Ibid s 10(3).

   ↑

7. A ‘family member, in relation to a person’ is defined in s 10A(3) of the VOCAA as a spouse, domestic partner, former spouse, former domestic partner, a child who normally or regularly resides with that person, a person who is or has been ordinarily a member of the household of that person or a relative of that person. ‘Relative’ is further defined in s 10A(4) of the VOCAA as a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law, mother-in-law, son, daughter, grandson, granddaughter, step-son, step-daughter, son-in-law, daughter-in-law, brother, sister, half-brother, half-sister, brother-in-law, sister-in-law, uncle, aunt, uncle-in-law, aunt-in-law, nephew, niece, cousin, or anyone who would be a relative of the domestic partner if they were married.

   ↑

8. Victims of Crime Assistance Act 1996 (Vic) s 10A(1).

   ↑

9. Ibid s 10A(2).

   ↑

10. Ibid s 13(2).

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11. Ibid s 13(4).

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12. Ibid s 13(3).

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13. Ibid s 12(1). The VOCAA also provides that in in exceptional circumstances VOCAT may award assistance which causes this limit to be exceeded: ibid s 12(2).

    ↑

14. Ibid s 13(1).

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15. Ibid s 8(3).

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16. Ibid ss 10A, 14(4).

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17. See J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [90]; RN v Victims of Crime Assistance Tribunal [2005] VCAT 2651 (14 December 2005) [30].

    ↑

18. AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (23 December 2010) [81]–[82]. See also RN v Victims of Crime Assistance Tribunal [2005] VCAT 2651 (14 December 2005) [30].

    ↑

19. Victims of Crime Assistance Tribunal, Other Expenses to Assist Recovery (26 September 2016) <www.vocat.vic.gov.au/assistance-available/financial-assistance-available/other-expenses-assist-recovery>. See also Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 26.

    ↑

20. See, eg, MK v Victims of Crime Assistance Tribunal [2013] VCAT 1582 (10 September 2013) [78]; Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) [49]–[51]; JM v Victims of Crime Assistance Tribunal [2002] VCAT 496 (17 June 2002) [31]; Hay v Victims of Crime Assistance Tribunal [2002] VCAT 45 (15 February 2002) [26]–[29].

    ↑

21. See, eg, ML v Victims of Crime Assistance Tribunal [2006] VCAT 292 (28 February 2006) [29].

    ↑

22. See, eg, Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) [50].

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23. See, eg, Gatto v Victims of Crime Assistance Tribunal [2010] VCAT 966 (2 June 2010) [9]. An award was originally made by VOCAT for one year of Taekwando classes, but no award was made by VCAT for an additional year.

    ↑

24. See, eg, the original award made by VOCAT in ML v Victims of Crime Assistance Tribunal [2006] VCAT 292 (28 February 2006) [6].

    ↑

25. See, eg, Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) [50].

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26. See, eg, the original award made by VOCAT in ML v Victims of Crime Assistance Tribunal [2006] VCAT 292 (28 February 2006) [6].

    ↑

27. Hay v Victims of Crime Assistance Tribunal [2002] VCAT 45 (15 February 2002) [27]–[29].

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

    ↑

29. Ibid s 1(2)(b).

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30. Ibid s 8A(5).

    ↑

31. See Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 74–6.

    ↑

32. Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) regs 7–9.

    ↑

33. Victims of Crime Assistance Act 1996 (Vic) s 56.

    ↑

34. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 82.

    ↑

35. Submissions 14 (Inner Melbourne Community Legal), 25 (Public Health Association of Australia), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria). This was also noted as an option in Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

    ↑

36. Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal). See also Submission 49 (Victims of Crime Commissioner, Victoria).

    ↑

37. See, eg, submissions 14 (Inner City Melbourne Legal), 49 (Victims of Crime Commissioner, Victoria), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

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

    ↑

39. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria). It was submitted that this should be in addition to a ‘recognition payment’.

    ↑

40. Ibid.

    ↑

41. Submission 25 (Public Health Association of Australia).

    ↑

42. Consultation 20 (Academics).

    ↑

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

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44. Ibid.

    ↑

45. See consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

    ↑

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

    ↑

47. Submissions 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal), 31 (Victorian Council of Social Service), 37 Submission 37 (safe steps Family Violence Response Centre).

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48. Submission 14 (Inner Melbourne Community Legal).

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49. Submissions 11 (Seniors Rights Victoria), 45 (Daniel Myles et al).

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

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51. Submissions 22 (YourLawyer) and 27 (Name withheld).

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

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53. Submission 27 (Name withheld); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

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54. Submission 14 (Inner Melbourne Community Legal).

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

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56. Submission 27 (Name withheld).

    ↑

57. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 82. 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). See also Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence–Report on the Stepping Stones Project (Women’s Legal Service Victoria, 2015).

    ↑

58. See, eg, submissions 11 (Seniors Rights Victoria), 14 (Inner Melbourne Community Legal), 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre).

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

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

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61. Submission 11 (Seniors Rights Victoria).

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62. Submission 14 (Inner Melbourne Community Legal).

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63. Ibid.

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64. Ibid.

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65. See, eg, submissions 9 (Alannah & Madeline Foundation), 19 (Schembri & Co Lawyers), 45 (Daniel Myles et al).

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66. Submission 45 (Daniel Myles et al).

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67. Submission 11 (Seniors Rights Victoria).

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68. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria). This proposal was made in conjunction with a proposal to narrow the definition of ‘exceptional circumstances’ for the purposes of awards for recovery expenses.

    ↑

69. Ibid.

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70. Ibid.

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71. Submission 22 (YourLawyer).

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72. Submission 27 (Name withheld).

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73. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre)—but only for primary victims, as the submission refers to amending section 8 of the VOCAA.

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

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75. Submission 27 (Name withheld); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

    ↑

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

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77. Submission 27 (Name withheld).

    ↑

78. Ibid.

    ↑

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

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80. Submission 14 (Inner Melbourne Community Legal).

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81. Ibid.

    ↑

82. Ibid.

    ↑

83. Submission 38 (Ryan Carlisle Thomas Lawyers).

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84. Ibid.

    ↑

85. Submissions 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers).

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86. Submission 38 (Ryan Carlisle Thomas Lawyers).

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87. Ibid.

    ↑

88. Submission 30 (CASA Forum).

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89. Submission 14 (Inner Melbourne Community Legal).

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90. Ibid.

    ↑

91. Submission 45 (Daniel Myles et al).

    ↑

92. Ibid.

    ↑

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

    ↑

94. Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee). See also consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

95. Ibid.

    ↑

96. Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

97. Ibid.

    ↑

98. Submission 27 (Name withheld).

    ↑

99. Ibid.

    ↑

100. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria). This proposal was made in addition to a proposal to introduce a cap on ‘distress’ payments for related victims. See also Victims of Crime Assistance Act 1996 (Vic) s 13(2)(e).

     ↑

101. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 85.

     ↑

102. Ibid.

     ↑

103. Ibid.

     ↑

104. Ibid 84.

     ↑

105. For example, the applicant’s claim for a gym membership was successful in Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011), but was unsuccessful in ML v Victims of Crime Assistance Tribunal [2006] VCAT 292 (28 February 2006).

     ↑

106. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 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), 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre), 39 (Victorian Aboriginal Legal Service), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, 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), 5 (Victims of Crime Commissioner, Victoria), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals), 20 (Academics).

     ↑

107. [2005] VCAT 2651 (14 December 2005).

     ↑

108. Ibid [35].

     ↑

109. Ibid [37].

     ↑

110. Submissions 24 (Darebin Community Legal Centre), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service), 58 (Judicial Advisory Group on Family Violence Supplementary Submission); Consultations 2 (Legal Professionals—Private Practice), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

111. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

112. Consultation 2 (Legal Professionals—Private Practice). See also ibid.

     ↑

113. Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

114. Consultation 5 (Victims of Crime Commissioner, Victoria).

     ↑

115. Consultation 13 (Regional Consultation—Mildura Legal Professionals). See also submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

116. Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

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

     ↑

118. Submissions 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 28 (South Metropolitan Integrated Family Violence Executive) in relation to family violence victims), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 58 (Judicial Advisory Group on Family Violence Supplementary Submission) (in relation to family violence victims), 49 (Victims of Crime Commissioner, Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 13 (Regional Consultation—Mildura Legal Professionals), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

119. Submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 2 (Legal Professionals—Private Practice).

     ↑

120. Submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

121. Submissions 5 (Anglicare Victoria Victims Assistance Program), 26 (Hume Riverina Community Legal Service), 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

122. Submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

124. Submissions 13 (Adviceline Injury Lawyers), 27 (Name withheld).

     ↑

125. Submission 27 (Name withheld).

     ↑

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

     ↑

127. Ibid.

     ↑

128. Submission 24 (Darebin Community Legal Centre) but the submission’s first proposal is to remove the ‘recovery expenses’ category of award altogether.

     ↑

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

     ↑

130. Submission 52 (Slavery Links).

     ↑

131. Submission 16 (Project Respect).

     ↑

132. Ibid.

     ↑

133. Submissions 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 5 (Victims of Crime Commissioner, Victoria), 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

134. Submission 24 (Darebin Community Legal Centre).

     ↑

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

     ↑

136. Consultations 7 (Family Violence and Advocacy Organisations), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

137. Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

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

     ↑

139. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

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

     ↑

141. Ibid.

     ↑

142. Ibid.

     ↑

143. Submission 14 (Inner Melbourne Community Legal).

     ↑

144. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) Ch 7, 70.

     ↑

145. Ibid.

     ↑

146. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 93.

     ↑

147. Ibid 94.

     ↑

148. Ibid 89.

     ↑

149. Ibid 91.

     ↑

150. Ibid.

     ↑

151. Ibid 85.

     ↑

152. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 18 (cohealth), 25 (Public Health Association of Australia), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria), 41 (Springvale Monash Legal Service).

     ↑

153. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 18 (cohealth), 25 (Public Health Association of Australia), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria).

     ↑

154. Victims of Crime (Financial Assistance) Act 2016 (ACT); Victims Rights and Support Act 2013 (NSW).

     ↑

155. Submissions 5 (Anglicare Victoria Victims Assistance Program), 18 (cohealth), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

157. Submission 41 (Springvale Monash Legal Service).

     ↑

158. Ibid.

     ↑

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

     ↑

160. Ibid; Victims of Crime Assistance Act 1996 (Vic) s 1(2)(a).

     ↑

161. Submission 27 (Name withheld).

     ↑

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

     ↑

163. Consultation 6 (Victims’ Advocacy Organisations).

     ↑

164. Ibid.

     ↑

165. Consultation 9 (Domestic Violence Victoria Members).

     ↑

166. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership)—all child victims, 44 (Aboriginal Family Violence Prevention & Legal Service Victoria) —but the submission’s first preference is for child victims to be deemed primary victims; in the alternative, submission 44 proposes making special financial assistance available to all secondary and related child victims.

     ↑

167. Submissions 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 22 (YourLawyer), 41 (Springvale Monash Legal Service) —submission 41 also proposes recognising such child victims as ‘primary victims’.

     ↑

168. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal).

     ↑

169. Submission 13 (Adviceline Injury Lawyers).

     ↑

170. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

171. Submission 35 (Brockway Legal).

     ↑

172. Submission 13 (Adviceline Injury Lawyers)—including parents or guardians or immediate family.

     ↑

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

     ↑

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

     ↑

175. Submission 13 (Adviceline Injury Lawyers).

     ↑

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

     ↑

177. Submission 15 (Merri Health Victims Assistance Program).

     ↑

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

     ↑

179. Submissions 1 (Judicial Advisory Group on Family Violence), 13 (Adviceline Injury Lawyers), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

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

     ↑

181. Submissions 35 (Brockway Legal), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

182. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

183. Submission 14 (Inner Melbourne Community Legal); Consultation 5 (Victims of Crime Commissioner, Victoria).

     ↑

184. Submission 14 (Inner Melbourne Community Legal).

     ↑

185. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Service), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria). See also 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).

     ↑

186. Submission 14 (Inner Melbourne Community Legal); Consultation 5 (Victims of Crime Commissioner, Victoria). See also submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria), noting that the ranges make it difficult for applicants to predict the award they will receive.

     ↑

187. Submissions 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 41 (Springvale Monash Legal Service).

     ↑

188. Submission 15 (Merri Health Victims Assistance Program).

     ↑

189. Submission 41 (Springvale Monash Legal Service).

     ↑

190. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 87.

     ↑

191. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 78.

     ↑

192. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence, 19 June 2015, 53.

     ↑

193. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 55–7.

     ↑

194. This was noted by the Victorian Magistrates’ and Children’s Courts in Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence, June 2015, 59.

     ↑

195. Submissions 1 (Judicial Advisory Group on Family Violence), 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 17 (Centre for Excellence in Child and Family Welfare), 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Service), 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), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 3 (Legal Professionals—Community Legal Centres), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals), 14 (Chief Magistrate’s Family Violence Taskforce), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

196. Submissions 1 (Judicial Advisory Group on Family Violence), 15 (Merri Health Victims Assistance Program) 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Service), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria)—but the submission’s first preference is to abolish the categories altogether, 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

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

     ↑

198. Submission 5 (Anglicare Victoria Victims Assistance Program). See also submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

     ↑

199. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program).

     ↑

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

     ↑

201. Submissions 13 (Adviceline Injury Lawyers), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 37 (safe steps Family Violence Response Centre).

     ↑

202. Submission 17 (Centre for Excellence in Child and Family Welfare).

     ↑

203. Submission 41 (Springvale Monash Legal Service).

     ↑

204. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 87.

     ↑

205. Submissions 5 (Anglicare), 9 (Alannah & Madeline Foundation), 11 (Springvale Monash Legal Service), 15 (Merri Health Victims Assistance Program), 35 (Brockway Legal), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

206. Submissions 9 (Alannah & Madeline Foundation), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

207. Submissions 9 (Alannah & Madeline Foundation), 11 (Seniors Rights Victoria), 41 (Springvale Monash Legal Service).

     ↑

208. Submissions 9 (Alannah & Madeline Foundation), 41 (Springvale Monash Legal Service).

     ↑

209. Submissions 35 (Brockway Legal), 41 (Springvale Monash Legal Service).

     ↑

210. Submission 41 (Springvale Monash Legal Service).

     ↑

211. Submission 14 (Inner Melbourne Community Legal). See also submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria) in relation to children.

     ↑

212. Submission 41 (Springvale Monash Legal Service).

     ↑

213. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

215. Submissions 1 (Judicial Advisory Group on Family Violence), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

216. See, eg, consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

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

     ↑

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

     ↑

219. Submission 13 (Adviceline Injury Lawyers). See also submissions 38 (Ryan Carlisle Thomas Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

220. See Department of Justice and Attorney-General (Qld), Final Report on the Review of the Victims of Crime Assistance Act 2009 (2015) 18 and Victims of Crime Assistance Act 2009 (Qld) sch 2 s 2. This amendment was inserted by Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) s 95(5).

     ↑

221. Submission 19 (Schembri & Co Lawyers). Adviceline Injury Lawyers (Submission 13) submitted that it should be at least $20,000 but recommended $30,000.

     ↑

222. Submission 13 (Adviceline Injury Lawyers).

     ↑

223. Submission 41 (Springvale Monash Legal Service).

     ↑

224. Submissions 13 (Adviceline Injury Lawyers), 38 (Ryan Carlisle Thomas Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

225. Submission 13 (Adviceline Injury Lawyers).

     ↑

226. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

228. Submissions 14 (Inner Melbourne Community Legal), 25 (Public Health Association of Australia), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria). This was also noted as an option in submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal).

     ↑

229. See Victims Rights and Support Act 2013 (NSW).

     ↑

230. Financial assistance for loss of earnings is capped at $20,000: ibid ss 8(2)(b), 9(a).

     ↑

231. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 6.

     ↑

232. Ibid 53.

     ↑

233. Ibid 58–9. See also consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

     ↑

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

     ↑

235. Ibid.

     ↑

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

     ↑

237. Submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

239. Michael Kirby, ‘Compensation for Victims of Criminal Injuries in Australia’ (Paper presented at the British Institute of International and Comparative Law Conference, Windsor Great Park, United Kingdom, 27 March 1981) 6.

     ↑

240. Victims of Crime Assistance Act 1996 (Vic) s 56.

     ↑

241. Ibid s 56(4).

     ↑

242. Ibid s 56(3).

     ↑

243. Ibid s 56(1).

     ↑

244. Victims of Crime Assistance Tribunal, Urgent Financial Assistance (28 September 2016) <www.vocat.vic.gov.au/assistance-available/urgent-financial-assistance>.

     ↑

245. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 37. See also Victims of Crime Assistance Tribunal, Safety-Related Expenses: Victims of Crime Assistance Tribunal, Information Sheet (2010).

     ↑

246. Victims of Crime Assistance Tribunal, Assistance Available—Safety-related Expenses (2017) <www.vocat.vic.gov.au/assistance-available/financial-assistance-available/safety-related-expenses>.

     ↑

247. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 86.

     ↑

248. Submission 49 (Victims of Crime Commissioner, Victoria). See also submission 37 (safe steps Family Violence Response Centre).

     ↑

249. Submission 14 (Inner Melbourne Community Legal).

     ↑

250. Ibid.

     ↑

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

     ↑

252. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 85–6.

     ↑

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

     ↑

254. Victims Rights and Support Act 2013 (NSW) s 26(1)(b).

     ↑

255. Victims Rights and Support Regulation 2013 (NSW) reg 8(1).

     ↑

256. Victims of Crime Assistance Act 1996 (Vic) s 13(2)(b).

     ↑

257. Ibid s 15.

     ↑

258. Victims of Crime Assistance Tribunal, Funeral Expenses, Guideline 3 of 2016 (1 January 2016) <www.vocat.vic.gov.au/vocat-guideline-3-2016-financial-assistance-funeral-expenses>.

     ↑

259. Ibid.

     ↑

260. Victims of Crime Assistance Act 1996 (Vic) s 12(1).

     ↑

261. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 81.

     ↑

262. Submissions 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 35 (Brockway Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

263. Submission 27 (Name withheld).

     ↑

264. Submission 18 (cohealth).

     ↑

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

     ↑

266. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 18 (cohealth), 27 (Name withheld), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

267. This is the approach in New South Wales: see Victims Rights and Support Act 2013 (NSW). A maximum amount applies for each ‘pillar’ of assistance, with the effect that an award under one pillar does not reduce the amount available under another. See also submission 49 (Victims of Crime Commissioner, Victoria) where the NSW Scheme is also discussed.

     ↑

268. Submission 18 (cohealth).

     ↑

269. The reasonable total cost of a burial is currently considered to be $15,235, which includes cemetery fees, the cost of a coffin or casket and other associated costs: Victims of Crime Assistance Tribunal, Funeral Expenses, Guideline 3 of 2016 (1 January 2016) <www.vocat.vic.gov.au/vocat-guideline-3-2016-financial-assistance-funeral-expenses>.

     ↑

270. Submissions 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 35 (Brockway Legal). See also Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

271. Queensland Government, Financial Assistance Available and Who Can Apply (6 November 2017) <www.qld.gov.au/law/crime-and-police/victims-and-witnesses-of-crime/financial-assistance/victims-categories>; Department of Justice (NSW), Guide: Financial Support for Family Members of Homicide Victims (July 2016) <www.victimsservices.justice.nsw.gov.au/Documents/fs_family-members.pdf>; ACT Human Rights Commission, Victims of Crime Commissioner, Guide to Completing a Financial Assistance Application (Funeral Expenses) (30 June 2017) <www.victimsupport.act.gov.au/__data/assets/pdf_file/0011/1078931/Funeral-Assistance-GUIDE-TO-COMPLETING-AN-APPLICATION-post-1-July-2017.pdf>.

     ↑

272. Victims of Crime Assistance Act 1996 (Vic) ss 8(2)(a), 10(2)(a), 13(2)(a).

     ↑

273. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2014 —Awards for Counselling Expenses, 1 July 2014, 2.

     ↑

274. Ibid.

     ↑

275. Ibid.

     ↑

276. Ibid 3. The Practice Direction states that ‘the report is the basis for measuring the effectiveness of the treatment provided, and will be relevant in the assessment of any future application or an award for further counselling expenses’: at 2.

     ↑

277. Ibid 3.

     ↑

278. Ibid 2.

     ↑

279. Ibid 4.

     ↑

280. Ibid. See also Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2016— Award of Assistance for Travel Expenses,
     
     11 December 2015.

     ↑

281. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2014—Awards for Counselling Expenses, 1 July 2014. See attached Form 3 ‘Subsequent Report—Recommendation for Additional Hours of Counselling’ (July 2014) 3.

     ↑

282. Victims of Crime Assistance Tribunal, Cost Guideline (Counselling), Guideline 2 of 2018 (29 December 2017) <www.vocat.vic.gov.au/index.php/vocat-guideline-2-2018-cost-guideline-counselling>.

     ↑

283. Victims of Crime Assistance Act 1996 (Vic) ss 8(1), 8A, 10(1), 13(1).

     ↑

284. Submissions 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 43 (knowmore)—child sexual abuse, 57 (Victims of Crime Assistance League); Consultations 8 (Victims Representatives—Victims of Crime Consultative Committee), 18 (PartnerSPEAK)—in relation to partners and children of online sex offenders.

     ↑

285. Submissions 1 (Judicial Advisory Group on Family Violence), 10 (Eastern Metropolitan Regional Family Violence Partnership); Consultation 18 (PartnerSPEAK).

     ↑

286. Submission 10 (Eastern Metropolitan Regional Family Violence Partnership). Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria) proposed removing counselling expenses from the related victim pool.

     ↑

287. Submission 15 (Merri Health Victims Assistance Program).

     ↑

288. Submissions 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 57 (Victims of Crime Assistance League); Consultations 8 (Victims Representatives—Victims of Crime Consultative Committee), 18 (PartnerSPEAK)—in relation to partners and children of online sex offenders.

     ↑

289. See, eg, submission 43 (knowmore).

     ↑

290. Submissions 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 57 (Victims of Crime Assistance League); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

     ↑

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

     ↑

292. Submissions 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service). See also the discussion in the Commission’s supplementary consultation paper in relation to the provision of counselling where a victim is not demonstrating ‘improvement’ in relation to the VOCAA’s requirement that the assistance be ‘reasonable’: Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 83.

     ↑

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

     ↑

294. Ibid.

     ↑

295. Submission 43 (knowmore).

     ↑

296. Victims Rights and Support Regulation 2013 (NSW) regs 5(1), 5(3).

     ↑

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

     ↑

298. Victims Rights and Support Regulation 2013 (NSW) reg 5(3).

     ↑

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

     ↑

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

     ↑

301. Submissions 1 (Judicial Advisory Group on Family Violence), 10 (Eastern Metropolitan Regional Family Violence Partnership); Consultation 18 (PartnerSPEAK).

     ↑

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

     ↑

303. Consultation 18 (PartnerSPEAK).

     ↑

304. Ibid.

     ↑

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

     ↑

306. Ibid.

     ↑

307. Ibid.

     ↑

308. Submission 10 (Eastern Metropolitan Regional Family Violence Partnership).

     ↑

309. Ibid.

     ↑

310. Submission 15 (Merri Health Victims Assistance Program).

     ↑

311. Victims Rights and Support Act 2013 (NSW).

     ↑

312. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime: An Examination of the Counselling Experiences of 62 Applicants to the Victorian Victims of Crime Assistance Tribunal (June 2011) 63.

     ↑

313. This was proposed in submissions 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

     ↑

314. Victims of Crime Assistance Act 1996 (Vic) s 8(2)(b).

     ↑

315. Ibid s 8(2)(c).

     ↑

316. Ibid s 8(2)(d).

     ↑

317. Ibid s 8(2)(e).

     ↑

318. Ibid s 10(2).

     ↑

319. Ibid s 10(3).

     ↑

320. Ibid s 13(2)(b).

     ↑

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

     ↑

322. Ibid s 13(2)(d).

     ↑

323. Ibid s 13(2)(e).

     ↑

324. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2016—Award of Assistance for Travel Expenses, 11 December 2015, Form 1, ‘Travel Expenses Declaration Form’. The Practice Direction fixes a per kilometre rate at which VOCAT may reimburse expenses incurred by an applicant for travel by car. Claims for other types of travel expenses must be accompanied by an invoice, receipt or ticket for the cost of the travel: at 1.

     ↑

325. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

327. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre)—but only for primary victims, as the submission refers to amending section 8 of the VOCAA.

     ↑

328. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

330. [2015] VCAT 205 (4 March 2015).

     ↑

331. Ibid [14].

     ↑

332. See, eg, submissions 14 (Inner Melbourne Community Legal), 45 (Daniel Myles et al).

     ↑

333. See submission 45 (Daniel Myles et al).

     ↑

334. Submission 14 (Inner Melbourne Community Legal).

     ↑

335. Ibid.

     ↑

336. Ibid.

     ↑

337. Ibid.

     ↑

338. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 82.

     ↑

339. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 48.

     ↑

340. Ibid.

     ↑

341. Victims of Crime Assistance Act 1996 (Vic) s 8(2)(c).

     ↑

342. However, only in relation to children and spouses or de facto partners of a primary victim: submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

343. Submission 45 (Daniel Myles et al).

     ↑

344. Submission 14 (Inner Melbourne Community Legal).

     ↑

345. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 82.

     ↑

346. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 48.

     ↑

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

     ↑

348. Submissions 24 (Darebin Community Legal Centre), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service), 58 (Judicial Advisory Group on Family Violence Supplementary Submission); Consultations 2 (Legal Professionals—Private Practice), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

349. Consultation 9 (Domestic Violence Victoria Members).

     ↑

350. Victims of Crime Assistance Act 1996 (Vic) s 8(3).

     ↑

351. Victims Rights and Support Regulation 2013 (NSW) reg 12(a).

     ↑

352. Victims of Crime (Financial Assistance) Regulations 2016 (ACT) reg 8. This is the amount awarded for a sexual offence punishable by imprisonment for 14 years or more, or attempt or conspiracy to commit homicide, and where the victim suffers a very serious injury that is likely to be permanent.

     ↑

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

     ↑

354. Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) reg 8(b). See also Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 90.

     ↑

355. Violent crimes can have a serious impact on older victims, child victims and victims with disability due to such victims often being physically weaker and more emotionally and/or psychologically vulnerable than others: see Etienne G Krugg et al (eds), World Report on Violence and Health (World Health Organisation, 2002), especially Chapter 3, ‘Child Abuse and Neglect by Parents and Other Caregivers’ and Chapter 5, ‘Abuse of the Elderly’.

     ↑

356. Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 8(1)(f)(i), (ii).

     ↑

357. Submissions 1 (Judicial Advisory Group on Family Violence), 5 (Anglicare Victoria Victims Assistance Program), 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), 19 (Schembri & Co Lawyers), 24 (Darebin Community Legal Centre), 26 (Hume Riverina Community Legal Service), 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 3 (Legal Professionals—Community Legal Centres), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals), 14 (Chief Magistrate’s Family Violence Taskforce), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

358. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 8(1)(b).

     ↑

359. The direct victim’s involvement would be considered if the applicant to the proposed scheme was not the person against whom the criminal act was committed.

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

364. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 85.

     ↑

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

     ↑

366. Victims of Crime Assistance Act 1996 (Vic) ss 8(1), 8A.

     ↑

367. Ibid s 10(1).

     ↑

368. Ibid s 13(1).

     ↑

369. Ibid s 12(1).

     ↑

370. Ibid.

     ↑

371. Ibid s 12(2).

     ↑

372. Ibid s 8(2)(c).

     ↑

373. Ibid ss 8(2)(a), 10(2)(a), 13(2)(a).

     ↑

374. Ibid ss 8(2)(b), 10(2)(b), 13(2)(b).

     ↑

375. Ibid s 8(2)(e).

     ↑

376. Ibid s 13(2)(e).

     ↑

377. Ibid ss 8(3), 10A and 13(4).

     ↑

378. Ibid s 45(1A).

     ↑

379. Victims of Crime Assistance Tribunal, Funeral Expenses, Guideline 3 of 2016 (1 January 2016) <www.vocat.vic.gov.au/vocat-guideline-3-2016-financial-assistance-funeral-expenses>.

     ↑

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

     ↑

381. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 9. However, as outlined in the Commission’s supplementary consultation paper, there are limited circumstances in which the existence of a series of related criminal acts can increase the amount of special financial assistance available. See Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) Ch 7, 69–70.

     ↑

382. Victims of Crime Assistance Act 1996 (Vic) ss 4(1)(a), (b), (c).

     ↑

383. Ibid ss 4(1)(a),(b).

     ↑

384. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 79.

     ↑

385. Submissions 1 (Judicial Advisory Group on Family Violence), 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 9 (Alannah & Madeline Foundation), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 19 (Schembri & Co Lawyers), 27 (Name withheld), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 45 (Daniel Myles et al); Consultations 7 (Family Violence and Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

386. Submissions 1 (Judicial Advisory Group on Family Violence), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 37 (safe steps Family Violence Response Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 35 (Brockway Legal), 58 (Judicial Advisory Group on Family Violence Supplementary Submission); Consultations 8 (Victims Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

387. Submissions 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 45 (Daniel Myles et al).

     ↑

388. Consultations 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies). See Submission 9 (Alannah & Madeline Foundation) in relation to children.

     ↑

389. Submissions 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service).

     ↑

390. Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

391. Submission 41 (Springvale Monash Legal Service).

     ↑

392. Submission 27 (Name withheld).

     ↑

393. Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

394. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

395. Consultation 6 (Victims’ Advocacy Organisations).

     ↑

396. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal).

     ↑

397. Submission 14 (Inner Melbourne Community Legal).

     ↑

398. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 83.

     ↑

399. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 18 (cohealth), 27 (Name withheld), 35 (Brockway Legal).

     ↑

400. Submissions 18 (cohealth), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 32 (Australian Psychological Society), 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service).

     ↑

401. Submissions 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service).

     ↑

402. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

403. Submissions 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

     ↑

404. Submission 18 (cohealth).

     ↑

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

     ↑

406. Submissions 26 (Hume Riverina Community Legal Service), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

407. Submissions 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program).

     ↑

408. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

409. Submission 14 (Inner Melbourne Community Legal).

     ↑

410. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) 186–93, Recommendation 9, cited in submission 43 (knowmore).

     ↑

411. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 82.

     ↑

412. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 27 (Name withheld), 31 (Victorian Council of Social Service), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 6 (Victims’ Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

413. Submissions 15 (Merri Health Victims Assistance Program), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

414. Submissions 13 (Adviceline Injury Lawyers), 38 (Ryan Carlisle Thomas Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 8 (Victims Representatives—Victims of Crime Consultative Committee).

     ↑

415. Submissions 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

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

     ↑

417. See, eg, Submissions 27 (Name withheld), 31 (Victorian Council of Social Service), 38 (Ryan Carlisle Thomas Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 8 (Victims Representatives—Victims of Crime Consultative Committee).

     ↑

418. Submission 38 (Ryan Carlisle Thomas Lawyers). See also Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

419. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

421. Ibid.

     ↑

422. Submission 13 (Adviceline Injury Lawyers).

     ↑

423. Submission 27 (Name withheld).

     ↑

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

     ↑

425. Submissions 38 (Ryan Carlisle Thomas Lawyers). See also 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

426. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

427. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 6, 77.

     ↑

428. Ibid 96.

     ↑

429. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 33 (Eastern Community Legal Centre), 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); Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

430. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 65.

     ↑

431. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 9.

     ↑

432. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence, June 2015, 59.

     ↑

433. Submission 15 (Merri Health Victims Assistance Program).

     ↑

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

     ↑

435. Ibid.

     ↑

436. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 35 (Brockway Legal), 41 (Springvale Monash Legal Service).

     ↑

437. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

438. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 33 (Eastern Community Legal Centre), 35 (Brockway Legal), 41 (Springvale Monash Legal Service).

     ↑

439. See, eg, submissions 19 (Schembri & Co Lawyers), 33 (Eastern Community Legal Centre), 35 (Brockway Legal), 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

440. Submissions 5 (Anglicare Victoria Victims Assistance Program), 13 (Adviceline Injury Lawyers), 35 (Brockway Legal).

     ↑

441. Submissions 13 (Adviceline Injury Lawyers), 35 (Brockway Legal).

     ↑

442. Submission 27 (Name withheld).

     ↑

443. Submissions 5 (Anglicare Victoria Victims Assistance Program), 9 (Alannah & Madeline Foundation), 17 (Centre for Excellence in Child and Family Welfare).

     ↑

444. Submission 27 (Name withheld).

     ↑

445. Submission 14 (Inner Melbourne Community Legal).

     ↑

446. Submissions 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

447. Submissions 1 (Judicial Advisory Group on Family Violence), 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 9 (Alannah & Madeline Foundation), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 19 (Schembri & Co Lawyers), 27 (Name withheld), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 45 (Daniel Myles et al); Consultations 7 (Family Violence and Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

448. See consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

449. See, eg, submissions 13 (Adviceline Injury Lawyers), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 38 (Ryan Carlisle Thomas Lawyers), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

450. Submissions 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service). The Commission also notes that its proposed total maximum quantum broadly accords with the submission received from Springvale Monash Legal Service, which stated that the total maximum quantum should be increased to $100,000: submission 41 (Springvale Monash Legal Service).

     ↑

451. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) 22. In October 2017, the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth) was introduced into the Commonwealth Parliament to implement the Commonwealth’s response to Royal Commission’s recommendations. The Bill includes a payment of up to $150,000 to survivors, rather than the Royal Commission’s recommended $200,000: Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth) cl 18. In November 2017, the Senate referred the Bill to the Senate Community Affairs Legislation Committee for inquiry and report. The Committee delivered its report in March 2018: Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018).
     
     The Victorian National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Vic), if passed, would refer powers to the Commonwealth to ensure that Victorian state institutions participate in the scheme.

     ↑

452. Victims Rights and Support Act 2013 (NSW) s 26(1)(b).

     ↑

453. The reasonable total cost of a burial is currently considered to be $15,235, which includes cemetery fees, the cost of a coffin or
     
     casket and other associated costs: Victims of Crime Assistance Tribunal, Funeral Expenses, Guideline 3 of 2016 (1 January 2016)
     
     <www.vocat.vic.gov.au/vocat-guideline-3-2016-financial-assistance-funeral-expenses>.

     ↑

454. Submissions 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 35 (Brockway Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

455. Victims Rights and Support Act 2013 (NSW).

     ↑

456. Victims of Crime (Financial Assistance) Act 2016 (ACT).

     ↑

457. This is the maximum award for a primary victim in South Australia: Victims of Crime Act 2001 (SA) s 20(3)(c).

     ↑

458. Submissions 4 (Crime Victims Support Association), 6 (Forgetmenot Foundation Inc.), 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 45 (Daniel Myles et al).

     ↑

459. Consultations 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies). See Submission 9 (Alannah & Madeline Foundation) in relation to children.

     ↑

460. See, eg, a media report concerning a victim of an assault who was badly injured and has been unable to return to work. The assault victim made an application for financial assistance to VOCAT in 2013 and was awarded $70,000, the maximum amount available to a primary victim under the VOCAA. Four years later, in 2017, the assault victim described this money as ‘drying up’: William Vallely, ‘Damages Do Not Fit the Crime: Victim’, Bendigo Advertiser (online), 21 July 2017 <www.bendigoadvertiser.com.au/story/4804647/victims-plea-for-justice/>.

     ↑

461. Submissions 1 (Judicial Advisory Group on Family Violence), 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 37 (safe steps Family Violence Response Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 35 (Brockway Legal); Consultations 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 13 (Regional Consultation—Mildura Legal Professionals), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

462. Victims of Crime (Financial Assistance) Act 2016 (ACT).

     ↑

463. Victims Rights and Support Act 2013 (NSW); Victims of Crime Assistance Act 2009 (Qld).

     ↑

464. See, eg, Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 26(1)–(2), 53; Victims Rights and Support Act 2013 (NSW) ss 47(2)–(3).

     ↑

465. Submissions 18 (cohealth), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 32 (Australian Psychological Society), 35 (Brockway Legal), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service).

     ↑

466. Department of Justice and Attorney-General (Qld), Final Report on the Review of the Victims of Crime Assistance Act 2009 (2015) 16 (Recommendation 4).

     ↑

467. See Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) s 38.

     ↑

468. Victims of Crime (Financial Assistance) Regulations 2016 (ACT) reg 5; Victims Rights and Support Regulation 2013 (NSW) reg 10.

     ↑

469. See, eg, Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131 (2017) 20, for the context in which elder abuse usually occurs. See also Australian Institute of Health and Welfare, Child Protection Australia 2015–16, Child Welfare Series No 66 (2017) for data relating to child abuse occurring within the home.

     ↑

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

     ↑

471. Ibid s 55(1)(a).

     ↑

472. Ibid s 55(1)(b).

     ↑

473. Victims of Crime Assistance Tribunal, Determining an Application—Supporting Documentation (2016) <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

     ↑

474. Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

475. Ibid.

     ↑

476. Ibid.

     ↑

477. Victims of Crime Assistance Act 1996 (Vic) s 60.

     ↑

478. Ibid. However, VOCAT is still bound by the provisions of the Act relating to the payment and amounts of assistance: ibid s 60(4).

     ↑

479. Ibid s 60(1).

     ↑

480. Ibid s 60(3).

     ↑

481. Ibid s 60(2).

     ↑

482. Ibid.

     ↑

483. Ibid s 60(2).

     ↑

484. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 9, 132.

     ↑

485. Ibid 133.

     ↑

486. Consultation 2 (Legal Professionals—Private Practice). See also consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

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

     ↑

488. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

490. Ibid.

     ↑

491. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

493. Submission 27 (Name withheld).

     ↑

494. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

495. Submission 43 (knowmore).

     ↑

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

     ↑

497. Submission 14 (Inner Melbourne Community Legal).

     ↑

498. Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

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

     ↑

500. Ibid.

     ↑

501. Ibid; Consultation 14 (Regional Consultation with Legal Professionals—Mildura).

     ↑

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

     ↑

503. Submissions 5 (Anglicare Victoria Victims Assistance Program), 6 (Forgetmenot Foundation Inc.), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 58 (Judicial Advisory Group on Family Violence Supplementary Submission); Consultations 2 (Legal Professionals—Private Practice), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

504. Submission 26 (Hume Riverina Community Legal Service).

     ↑

505. Consultation 8 (Victims Representatives—Victims of Crime Consultative Committee). See also submission 26 (Hume Riverina Community Legal Service).

     ↑

506. See, eg, submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

     ↑

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

     ↑

508. Submission 18 (cohealth).

     ↑

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

     ↑

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

     ↑

511. Consultations 8 (Victims Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

512. Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

513. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) Ch 9, 131.

     ↑

514. A seven-year time limit applies in New South Wales, the Australian Capital Territory, Queensland and the Northern Territory. See Victims Rights and Support Act 2013 (NSW) s 40(6); Victims of Crime (Financial Assistance) Act 2016 (ACT) s 49(2); Victims of Crime Assistance Act 2009 (Qld) s 101(3); Victims of Crime Assistance Act 2006 (NT) s 46(1). See also Submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

     ↑

515. 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, 558.

     ↑

516. Ibid.

     ↑

517. Ibid.

     ↑

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

     ↑

519. The Judicial Advisory Group on Family Violence supported this approach: see submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

     ↑

520. An alternative approach would be to include a definition of ‘exceptional circumstances’ and examples of when such circumstances are likely to arise. See, eg, Victims of Crime Assistance Act 2009 (Qld) s 28 which provides a definition of ‘exceptional circumstances’ and examples of when such circumstances are likely to arise for the purposes of ‘special assistance’ payments.

     ↑

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

     ↑

522. Victims of Crime Assistance Tribunal, Funeral Expenses, Guideline 3 of 2016 (1 January 2016) <www.vocat.vic.gov.au/vocat-guideline-3-2016-financial-assistance-funeral-expenses>.

     ↑

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

     ↑