Victims of Crime Assistance Act 1996: Report (html)

14. Making an application under the proposed Act for victims of crime financial assistance

Introduction

14.1 This chapter considers and makes recommendations about the processes and procedures for making an application under the proposed Act, including:

• how to apply for assistance

• the burden of proof that the decision maker will apply when considering applications—for example, when deciding whether a criminal act occurred

• the documentary evidence that must be provided in support of an application

• the inspection and publication of scheme application materials and the use of such materials in other legal proceedings

• application time limits.

14.2 The recommendations in this chapter seek to ensure that the processes and procedures for making an application under the proposed Act are fair and equitable, consistent and predictable, and enable the timely determination of applications.

14.3 This chapter relates to issues raised in the first, second, third and fourth matters of the supplementary terms of reference, which asked the Commission to consider whether:

• the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) can be simplified to make it easier for applicants to understand their entitlements

• the VOCAA recognises the appropriate people as victims

• evidence required to meet eligibility tests under the VOCAA can be simplified

• application time limits under the VOCAA are appropriate.

How to make an application

14.4 This section of the chapter considers the current VOCAA requirements for commencing an application and makes recommendations for how this process can be simplified and made more accessible under the proposed scheme.

14.5 These recommendations seek to help meet the objectives of the scheme, as outlined in the supplementary terms of reference. In particular, they seek to ensure that the scheme is fair and equitable, by making the application process accessible. By simplifying the process, these recommendations also seek to establish a scheme that is efficient and sustainable for the state.

Current law

14.6 Under the VOCAA, applications for assistance must be commenced by way of a written application in the prescribed form and must be accompanied by any documentary evidence required.^[1]

14.7 If an applicant has not reported the act of violence to the police, the form must be accompanied by a statutory declaration by the applicant setting out the circumstances of the act of violence and the reasons why the applicant did not report it.^[2]

14.8 The VOCAA specifies the information an application must set out.^[3] This is reflected in the Victims of Crime Assistance Tribunal (VOCAT) application form, which comprises 12 parts:

1) details of the applicant

2) section to be completed if the claim is being made on behalf of a child or a person with disability

3) the circumstances of the act of violence, including the perpetrator’s name if known

4) details of any reporting to police, including station, police officer, rank and date, and whether criminal proceedings have commenced against the perpetrator

5) the effects of the act of violence on the applicant, including any physical and psychological effects, and whether the applicant has experienced grief, stress or trauma. The form also asks whether the applicant attended hospital.

6) whether the applicant would prefer to have the matter determined ‘on the papers’ or whether they would like a hearing before VOCAT. If the applicant wishes to have a hearing, they can ask for the proceedings to be conducted in closed court.

7) whether the applicant has applied for assistance under any other schemes, including the Victims Assistance Program, WorkCover, the Transport Accident Commission, and any benefits the applicant has received or is entitled to receive under a superannuation or insurance scheme

8) the type of assistance that the applicant wishes to claim from VOCAT, including expenses incurred, expenses to assist in recovery and special financial assistance. The applicant must indicate whether they are applying as a primary, secondary or related victim, or whether the applicant is claiming funeral expenses only.

9) if the act of violence resulted in a death, the applicant must provide details of the deceased

10) if the applicant is a related victim, they must list every person who they believe may be or may claim to be a related victim, and they can also apply for assistance with funeral expenses.

11) the applicant’s authorisation for VOCAT to obtain any other evidence necessary

12) an acknowledgment by the applicant that all information provided is true and correct.^[4]

14.9 An application and the supporting documentation must be lodged either in hard copy or online via the VOCAT website.^[5] Hard-copy applications must be lodged with or posted to the VOCAT venue closest to the applicant’s place of residence.^[6] If an applicant applies online, the application will automatically be lodged with the correct venue.^[7]

14.10 There is no fee for filing an application for assistance, whether it is done online or in hard copy.^[8]

14.11 There is a separate application form for applications for interim assistance.^[9] This form requires the applicant to outline the assistance sought and why an interim award is appropriate.

14.12 The VOCAA provides that applicants may withdraw an application at any time prior to the hearing or determination of the application.^[10] They must do so in writing to VOCAT.^[11] VOCAT must then make an order striking out the application.^[12]

Responses

14.13 In response to the consultation papers, Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the ‘current form used for applying to VOCAT itself is an indication of the problematic aspects of the current system’.^[13]

14.14 The Commission was told that the current application form is difficult for victims to complete on their own, and that the form does not account for diverse victim experiences, particularly for victims of family violence.^[14]

14.15 As the Women’s Legal Service Victoria and Domestic Violence Victoria submitted, completing the application form often necessitates legal advice, because it is not self-evident which victim category an applicant falls into, and how this may affect their entitlements.^[15]

14.16 The Aboriginal Family Violence Prevention & Legal Service Victoria also submitted that because family violence ‘typically involves a pattern of conduct over a prolonged period of time’, the requirement to describe a single incident of violence ‘can create misperceptions about what can or cannot be the subject of a claim’ and can deter some applicants from making an application.^[16]

14.17 To address these issues, and to better reflect the lived experiences of family violence victims, the Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the application form should be amended to enable victims to:

• list multiple family violence incidents or, where abuse is ongoing, list a range of dates over which the violence occurred

• list one or multiple perpetrators to reflect the nature of family violence in extended family settings

• outline any cumulative harm suffered, as opposed to harm resulting from any one incident

• outline any harm suffered by their children or other family members.^[17]

14.18 In addition, Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the application form should clarify the circumstances in which any assistance received from other sources will impact on the claim, so that victims know that they will not necessarily be disadvantaged as a result of receiving other forms of assistance.^[18]

14.19 Hume Riverina Community Legal Service expressed concern about the requirement that interstate applicants and applicants of Aboriginal and Torres Strait Islander origin must file their application with VOCAT’s Principal Registry in Melbourne. It was submitted that this requirement ‘places an unnecessary burden’ on such victims and ‘may result in them having to travel from Albury/Wodonga to Melbourne for hearings or to have their matter finalised’.^[19] It was proposed that ‘there should be discretion for interstate and Koori applicants to file in the Registry closest to their residential address’.^[20]

14.20 More generally, the Commission was told that the application form and information provided to applicants should be ‘overhauled’ to improve accessibility, including by translating the form into languages other than English.^[21] The accessibility of the current application form, and accessibility issues more generally are discussed in Chapter 17.

Discussion and recommendations

14.21 The Commission considers that applications for state-funded financial assistance under the proposed Act should continue to be required to be made in writing, in the specified form, and to be supported by documentary evidence.

14.22 However, to address stakeholder concerns regarding the current form’s complexity and its failure to reflect victims’ lived experiences, particularly the experiences of family violence victims, the Commission considers that changes to the application form are required.

14.23 As VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated in their joint submission, ‘Simplifying the administrative processes involved in lodging and progressing VOCAT applications is an important part of improving the scheme’s accessibility.’^[22]

14.24 The Commission considers that the proposed Act should provide that a victim may apply for any stream of assistance, within the application time limits, by completing the prescribed application form, and that multiple streams of assistance may be applied for at the same time using the same form.

14.25 There should be a single application form for all streams of assistance, including immediate needs, in contrast to the current application process, where there is a separate application form for applications for interim assistance.

14.26 Such an approach would help simplify and streamline the application process, making it more accessible for applicants, who would not need to determine which form they need to complete.

14.27 In addition, the application form should enable applicants to list multiple criminal acts committed by the same perpetrator. The form should also enable applicants to indicate whether the criminal act or acts took place in the context of a broader pattern of abuse and to indicate the time period over which it took place.

14.28 These changes would help make the form more accessible for victims who do not experience a criminal act as an isolated, one-off event.

14.29 To assist the decision maker in determining an application and to reduce the administrative burden on victims, the Commission considers that similarly to section 39 of the VOCAA, the proposed Act should enable the scheme decision maker, with the applicant’s consent, to obtain any information, evidence or documentation it considers necessary to determine an application. Similarly to section 26(1)(c) of the VOCAA, the proposed Act should require that the application form contain an authorisation to this effect.

14.30 The Commission also acknowledges the views of some stakeholders that it may be unclear to victims why the current VOCAT form requires them to provide details of any assistance they have applied for under other schemes.^[23] It was submitted that some victims may assume they will be disadvantaged by having applied to other schemes.^[24]

14.31 In Chapter 11, the Commission concluded that the proposed scheme should no longer be a scheme of ‘last resort’. Instead, the Commission considered that the broad aims of such an objective would be better met by more specific and strengthened provisions in the proposed Act relating to:

• circumstances where offender recovery or contribution may be pursued

• interaction with other schemes or entitlements.

14.32 In support of these proposed provisions, the Commission considers that applicants should continue to be required to provide details of any assistance they have applied for, or for which they may be eligible under any other scheme. However, the Commission considers that the application form should include an explanation of why victims are required to provide this information, expressly stating:

• the circumstances in which an award of financial assistance, or eligibility for an award of financial assistance, under another scheme may reduce the amount of financial assistance a victim would otherwise be eligible for under the proposed Act

• the circumstances in which victims may be required to refund an award under the proposed Act.

14.33 The overlap between the proposed scheme and other schemes, and the circumstances giving rise to refunds, are discussed in Chapter 16.

14.34 The Commission notes the concern expressed by Hume Riverina Community Legal Service regarding the requirement that certain applicants must file their application with VOCAT’s Principal Registry in Melbourne.^[25] As discussed in Chapter 17, the Commission considers that the proposed scheme should undertake more specific and targeted outreach activities with relevant frontline and community sector organisations. This should include co-locating scheme staff at these locations on a part time basis to assist victims with submitting applications or paperwork to increase the overall accessibility of the proposed scheme.

14.35 As is currently the case, the Commission considers that a victim should continue to be able to withdraw an application made under the proposed Act at any time, by giving written notice to the scheme decision maker.

Recommendations—how to make an application

54 The proposed Act should provide that an application for assistance must be made in writing in the specified form, supported by the required documentary evidence.

55 The proposed Act should provide that a victim may apply for any stream of assistance within the application time limits by completing the specified application form, and that multiple streams of assistance may be applied for using the same form.

56 The proposed Act should provide that the scheme decision maker may obtain, with the applicant’s consent, any information, evidence or documentation the scheme decision maker considers necessary to determine an application.

57 The proposed Act should provide that the application form:

(a) contain an authorisation for the scheme decision maker to obtain any information, evidence or documentation necessary to enable the determination of an application

(b) enable applicants to:

(i) list multiple criminal acts by the same perpetrator

(ii) indicate that the criminal act/s occurred in the context of a pattern of abuse and list a range of dates over which such abuse occurred

(c) require applicants to provide details of any assistance they have applied for, or may be eligible for, under any other scheme, and state the circumstances in which:

(i) an award of financial assistance, or eligibility for an award of financial assistance, under another scheme may reduce the amount of financial assistance a victim would otherwise be eligible for under the proposed Act

(ii) an award of financial assistance under the proposed scheme may be required to be refunded.

58 The proposed Act should provide that a victim may withdraw an application made under the proposed Act at any time, by giving written notice to the scheme decision maker.

Standard of proof

14.36 In this section, the Commission considers the standard of proof that applies under the VOCAA and makes recommendations about the standard of proof to be applied by the scheme decision maker when making a determination under the proposed Act. This includes any questions of fact that must be decided in considering an application for assistance, for example, whether a criminal act occurred and whether the injury the applicant suffered was a result of that criminal act.

14.37 The ‘standard of proof’ is the degree of certainty required to prove something at law.

The standard of proof differs in different legal proceedings.

14.38 As discussed below, the standard of proof that applies under the VOCAA is ‘on the balance of probabilities’.^[26] This is the standard of proof that generally applies in civil proceedings and is often described as ‘more likely than not’ or ‘more probable than not’. It requires that an alleged fact be more probable than not in order to be accepted by the decision maker as true. This is a lower standard of proof than ‘beyond reasonable doubt’, which is used in criminal matters.

Current law

14.39 As noted above, the standard of proof that applies to any question of fact that VOCAT must decide in relation to an application for state-funded financial assistance under the VOCAA is ‘on the balance of probabilities’.^[27]

14.40 In determining whether this standard has been met in applications made under the VOCAA, VCAT has frequently applied the test set out in Briginshaw v Briginshaw (the Briginshaw test).^[28] In that case, Justice Dixon stated:

when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.^[29]

14.41 Under this test, the strength of the evidence required to determine whether or not a fact exists on the balance of probabilities may vary depending on the seriousness of an allegation.^[30] In the context of the VOCAA, in which VOCAT must find whether or not a criminal act occurred, the allegation will almost always be of a serious nature.

14.42 However, in a number of cases, VCAT has held that while the Briginshaw test is relevant, the beneficial intent of the Act should also be taken into account when making a determination of fact.^[31] In particular, VCAT has pointed to the VOCAA’s stated purpose of recognising the effect of an act of violence on victims of crime and expressing the community’s sympathy and condolence.^[32] This casts doubt on the extent to which the Briginshaw test will be applied for the purposes of determining an application made under the VOCAA.

Responses

14.43 In response to the consultation papers, the Commission was not told of any concerns with the existing standard of proof or that it is unfairly applied.^[33]

Discussion and recommendations

14.44 The Commission notes that both the Victorian Government and the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse have stated that a lower standard of proof may be appropriate for redress schemes for child abuse. The Victorian Government, in a discussion paper considering options to implement a state redress scheme for institutional child abuse, stated that a modified standard of proof

might be more appropriate to meet the needs of child abuse victims, given the challenges in meeting the ‘balance of probabilities’ standard of proof.^[34]

14.45 In addition, in its final report, the Royal Commission into Institutional Responses to Child Sexual Abuse stated that ‘the standard of proof for a redress scheme should be lower than the common law standard of proof’.^[35] It therefore recommended that ‘reasonable likelihood’ should be the standard of proof adopted for its recommended redress scheme for persons sexually abused as a child in an institutional context.^[36]

14.46 However, the Commission did not receive any submissions indicating that the current standard of proof that applies under the VOCAA creates any particular barriers for victims or is unfairly applied. The Commission notes that most other state-funded victims of crime assistance schemes in Australia use ‘on the balance of probabilities’ as the standard of proof.^[37] Accordingly, the Commission considers that the proposed Act should continue to provide that in deciding any matter under the proposed Act, the standard of proof should continue to be ‘on the balance of probabilities’.

14.47 In addition, the Commission considers that the absence of criminal proceedings against an alleged offender, or the acquittal of an alleged offender, should not be taken to indicate that, on the balance of probabilities, the criminal act did not occur for the purposes of the proposed Act, or to otherwise cast doubt on an applicant’s claim.

14.48 Accordingly, the Commission considers that the proposed Act should expressly provide that the scheme decision maker may determine, for the purposes of the proposed Act that a criminal act occurred, regardless of the existence, status or outcome of any other legal proceedings.

Recommendation—standard of proof

59 In determining an application for financial assistance, the proposed Act should provide that the scheme decision maker:

(a) must be satisfied on the balance of probabilities about the existence of any relevant matter

(b) may determine that a criminal act occurred regardless of the existence, status or outcome of any other legal proceedings, including where those other proceedings are pending or where the alleged offender has been acquitted in criminal proceedings relating to the alleged criminal act.

Documentary evidence requirements

14.49 This section considers the documentary evidence requirements for applications under the VOCAA and makes recommendations for how these requirements can be simplified and made more accessible for applicants under the proposed Act.

14.50 These recommendations are intended to ensure that the proposed scheme operates fairly and is equitable and is efficient and sustainable for the state.

Current law

14.51 The VOCAA requires that applications for assistance be accompanied by ‘any documentary evidence (such as medical certificates or statements of earnings) indicated in the form as being required to accompany the application’.^[38] The application form includes a Guide to Completing the Application for Assistance Form which outlines these documentary evidence requirements.^[39]

14.52 VOCAT’s website provides additional information about the supporting documentation that should be filed in relation to each category of assistance claimed.^[40] This is outlined at Table 3 below.

Table 3: Documentation to be filed with VOCAT in support of application^[41][42][43]

14.53 Part 4 of the application form asks the applicant whether the act of violence has been reported to police and if so, to provide specified details. If the applicant has not reported the act of violence to the police, the form requires that in accordance with section 26(2) of the VOCAA, the application be accompanied by a statutory declaration setting out the circumstances of the act of violence and the reasons the applicant failed to report it.^[44]

14.54 The application must contain an authorisation for VOCAT to obtain any other evidence or document that it requires to determine the application—for example, public hospital records or police reports.^[45] VOCAT also has powers under the VOCAA to obtain evidence, investigate and obtain information.^[46]

14.55 Once an application is received, VOCAT writes to the applicant or their lawyer to acknowledge receipt of the application and it may seek further evidence from the applicant, including:

• a report from the applicant’s treating doctor if physical injury is claimed

• receipts or invoices for the expenses claimed

• a copy of the applicant’s police statement

• copies of any intervention orders

• a report from the counsellor if the applicant is seeking counselling

• information about Medicare rebates.^[47]

14.56 VOCAT asks the applicant to file all additional documentation in support of the application and a completed Statement of Claim form within four months of receiving VOCAT’s acknowledgment letter.^[48] The applicant must notify VOCAT in writing within this time that the application is ready to proceed or the application may be struck out.^[49] 

14.57 However, Whittlesea Community Legal Service, in its 2011 Discussion Paper stated that four months may not be long enough for applicants to compile and lodge all supporting evidence.^[50] In particular, in the case of medical and counselling expenses, ‘it may be difficult for an applicant to get appointments with medical practitioners or psychologists/psychiatrists who can provide appropriate supporting documentation to the Tribunal’ within this timeframe.^[51]

14.58 If the applicant needs more than four months, they must make a written request to VOCAT outlining what material is still outstanding and how much time the applicant requires to obtain it. VOCAT can then extend the period within which all material must be filed.^[52]

14.59 As noted in the supplementary consultation paper, the Commission was informed that VOCAT frequently requests further documentation, particularly where the alleged perpetrator has not been charged or convicted, or there is little corroborating evidence.^[53] The Commission was told that VOCAT often seeks information from Victoria Police to help determine whether a crime occurred, as well as the criminal history of the alleged offender and the victim.^[54] It also seeks information about a victim’s injuries via medical records or from Victoria Police.^[55]

Responses

14.60 Echoing the concerns raised by Whittlesea Community Legal Service noted above, Springvale Monash Legal Service submitted that obtaining relevant supporting documentation is one of the main difficulties of running a VOCAT matter, and one of the primary reasons for delay and costs.^[56]

14.61 In addition, stakeholders expressed concern about the following aspects of the current documentary evidence requirements:

• evidence required to establish mental illness or disorder for the purposes of proving injury under the VOCAA

• types of evidence accepted

• inconsistent application of evidentiary requirements

• administrative burden for applicants.

14.62 Each of these is discussed in turn below.

Evidence required to establish mental illness or disorder

14.63 Under the VOCAA, ‘injury’ is defined as including ‘actual physical bodily harm’ and ‘mental illness or disorder’. Stakeholders told the Commission that the evidentiary requirements for establishing that an applicant has suffered a mental illness or disorder can be difficult to satisfy for some applicants for the following reasons:

• not all psychologists are trained in victims of crime work, and the process of obtaining a psychological report therefore has the potential to re-traumatise victims, particularly since the purpose of the assessment is not therapeutic support^[57]

• even where a report is provided by a psychologist or counsellor who is already treating the applicant, obtaining a psychological report can disrupt the therapeutic relationship between the psychologist and the applicant^[58]

• in regional areas, there may be a lack of psychologists and counsellors able to provide such reports^[59]

• it can be difficult for Aboriginal people in rural and regional areas to obtain a report from culturally competent psychologists and psychiatrists^[60]

• some psychologists and counsellors may be reluctant to write reports due to uncertainty as to whether they will get paid by VOCAT, particularly if the application is unsuccessful or an applicant withdraws it before it is determined.^[61]

14.64 The Commission also heard during consultations with victim representatives that the documentary evidence requirements are a further example of the criminal justice system requiring victims to constantly ‘prove themselves’.^[62]

14.65 The Commission was told that VOCAT’s reliance on psychological reports to establish injury can be very costly for applicants^[63] and for the scheme as a whole.^[64] The time taken to obtain such reports can also lead to delays in the application process.^[65]

14.66 Springvale Monash Legal Service submitted that VOCAT’s reliance on psychological reports increases the scheme’s vulnerability to fraudulent claims by external parties.^[66]

Types of evidence accepted

14.67 A significant number of stakeholders expressed concern about the narrow types of evidence that VOCAT will accept as proof of physical injury or mental illness or disorder.^[67] These stakeholders told the Commission that applicants should be able to use a broader range of documentary evidence to support their applications, including reports from a range of health, therapeutic and support services. Anglicare Victoria Victims Assistance Program stated that a document similar to a Victim Impact Statement could be used to support applications and enable victims to express the impact of the crime without requiring professional reports.^[68]

14.68 Inner Melbourne Community Legal submitted that broadening the types of evidence accepted by the scheme could address some barriers to assistance experienced by victims who did not seek medical or professional assistance following the crime, other than, for example, by disclosing the crime to a support service, such as a family violence service.^[69]

14.69 One submission stated that VOCAT places too much reliance on police reports as the ‘only source’ of information about a crime, when consideration of a wider range of information might enable a better assessment of the context in which the offending occurred.^[70] The Commission was also told that ‘VOCAT does not seem to be set up to consider a wide range of objective sources when it comes to the subtle effects of domestic violence’.^[71]

Inconsistent application of evidentiary requirements

14.70 The Commission was told that the documentary evidence requirements for establishing mental illness or disorder are inconsistently applied, with different magistrates accepting different types of documentation. As noted above, stakeholders expressed concern about the narrow types of documentary evidence that VOCAT accepts for the purposes of establishing mental illness or disorder. In consultations, stakeholders told the Commission that some magistrates will accept counselling reports, while others require victims to obtain a report from a psychologist.^[72]

Administrative burden

14.71 The Commission was told that gathering the necessary documentation to establish injury is administratively burdensome for applicants.^[73] The Commission was given examples of victims being directed by their lawyer to obtain specific reports or documents to support their VOCAT application.^[74] In this context, the Commission was told that any state-funded financial assistance scheme should minimise the need for victims to chase reports and paperwork in this manner.^[75]

14.72 To address the administrative burden for applicants, victims of crime representatives told the Commission that the onus should not be on applicants to gather the requisite documentary evidence to support a VOCAT application.^[76]

14.73 The Commission was told that there is a lack of understanding by applicants about the supporting materials required by VOCAT and that failing to provide the correct documents can adversely affect a victim’s claim.^[77]

14.74 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that a case management approach could alleviate the administrative burden placed on applicants—under such an approach, ‘the evidence needed to support a particular application could be identified and discussed with a victim at the outset [which] could alleviate the need to engage legal representation’.^[78]

Discussion and recommendations

14.75 The Commission notes stakeholder views that the current documentary evidence requirements can be difficult for some applicants to satisfy.^[79] In particular, the Commission notes that the administrative burden of collecting the necessary documentation can be onerous for applicants, and that the types of evidence accepted by VOCAT as proof of injury are narrow. While some stakeholders submitted that VOCAT can be flexible in accepting broader types of evidence, the Commission was told that this does not occur consistently, raising issues of fairness and transparency.^[80] Applicants without legal representation may also be unaware that documentary evidence requirements are not always strictly applied, with the effect that such applicants may be disadvantaged when making their application.

14.76 The Commission notes that current documentary evidence requirements can operate to delay the determination of applications, disadvantage applicants or even deter some victims from applying for assistance in the first place.

14.77 However, the Commission also notes that, as with any public scheme providing financial benefits, the decision maker must have sufficient information to determine applications and to ensure that only those applicants who meet the eligibility requirements are awarded assistance.

14.78 In the Commission’s view, ensuring that the evidentiary burden is not too onerous for applicants, while also ensuring that decision makers have sufficient information to determine applicants’ eligibility for assistance, are key considerations in formulating the documentary evidence requirements under the proposed Act.

14.79 To clarify the purpose for which documentary evidence is required, the Commission considers that there should be three categories of documentary evidence required:

1) evidence required to establish that the applicant was the victim of a criminal act; this could include documentary evidence of a close personal relationship

2) evidence required to establish that the applicant suffered an injury as a result of the criminal act

3) evidence required to establish expenses incurred or reasonably likely to be incurred by the applicant.

14.80 Each of these categories of evidence is discussed further below.

14.81 Due to the inconsistent application of the existing documentary evidence requirements and the significant barriers they create for some victims, the Commission considers that the documentary requirements that apply under the proposed scheme should be listed in the proposed Act, and not prescribed by regulation. In the Commission’s view, this would help to ensure that the proposed scheme is accessible and transparent by making it easier for victims to identify the documentary evidence requirements that apply. In addition, due to the significant impact that documentary evidence requirements can have on scheme accessibility, the Commission considers that such requirements should not be narrowed without parliamentary scrutiny.

Documentary evidence to establish a criminal act

14.82 Except for the provision of a statutory declaration as noted above, neither the VOCAA, nor the VOCAT Guide to Completing the Application for Assistance Form specify any documentation that is required to be submitted by the applicant as evidence that the applicant was the victim of a criminal act.

14.83 In acknowledgement of the fact that some victims may never report a criminal act to the police, the Commission considers that under the proposed Act, an applicant should be able to provide a broader range of documentary evidence to establish that they were the victim of a criminal act. This would be consistent with the approach in some other jurisdictions. For example, in New South Wales, applicants seeking a recognition payment or assistance for economic loss are required to provide a police report or a ‘report from a government agency, such as DOCS or NSW Housing’ to establish that the applicant was the victim of a criminal act.^[81] In the Australian Capital Territory, the application form for primary victims requires the victim to specify whether the act of violence was reported to a doctor, psychologist, social worker or counsellor, or to a government agency or to a non-government agency, such as a domestic violence service or rape crisis centre.^[82]

14.84 To ensure transparency and clarity of requirements, for both decision makers and applicants, the Commission considers that these documentary evidence requirements should be specified in the proposed Act.

14.85 In the Commission’s view, the proposed Act should provide that an applicant must provide at least one of the following in support of their application to establish that they were the victim of a criminal act:

• record of conviction of the perpetrator

• if the criminal act was reported to the police, details of that report, including the date of the report and officer and police station at which the report was made

• a Family Violence Intervention Order, Family Violence Safety Notice or Personal Safety Intervention Order

• a medical report, including a report from the applicant’s general practitioner

• a report from a psychologist

• a report from a counsellor

• a report from a social worker

• a report from a government department or agency, such as the Department of Health and Human Services

• a report from a family violence service

• a report from a non-government agency, such as an agency administering the Victims Assistance Program, as determined by the decision maker.

14.86 So that victims are not prevented from applying for assistance in circumstances where they have not previously reported the criminal act to any person and are therefore unable to satisfy the above proposed requirements, the Commission considers that as an alternative, the applicant should be able to provide a statutory declaration outlining the details of the criminal act and the reasons why the applicant has been unable to provide the prescribed documentary evidence.

Documentary evidence to establish an injury

14.87 As noted above, stakeholders submitted that, in practice, VOCAT sometimes accepts documentary evidence outside the types of documentation it formally prescribes.^[83] The Commission considers that such inconsistent practices raise issues of transparency and fairness.

14.88 In addition, the Commission notes stakeholder views that the types of documentary evidence accepted by VOCAT for the purpose of proving injury, particularly mental illness or disorder, are too narrow and can be difficult to satisfy for some victims who do not seek medical assistance in the aftermath of a crime and/or who cannot or do not wish to see a psychologist or psychiatrist to prove that they have a mental illness or disorder.^[84] The Commission also notes concerns raised by some stakeholders that in certain circumstances, undergoing a psychological assessment for non-therapeutic purposes can be re-traumatising for victims.^[85]

14.89 The Commission considers that the proposed Act should specify the types of evidence required to establish that an applicant has suffered injury as a result of the criminal act. This approach would help ensure greater transparency regarding the evidentiary requirements and ensure fairness, as all applicants would be aware of the evidentiary requirements and these requirements would be applied consistently. This would address the current gap, as reported by stakeholders, between the formal evidentiary requirements and those that apply in practice.

14.90 In addition, the Commission considers that the evidentiary requirements for proof of injury should be broadened to enable a wider range of documentation to be submitted to prove injury—which the Commission proposes be defined as ‘physical harm’ or ‘psychological or psychiatric harm’, or exacerbation of one or either of these. Again, this proposed approach would be similar to the approach taken in other jurisdictions. In the Australian Capital Territory, the application form requires applicants to provide details of ‘any person or agency who saw or treated your injury’.^[86] In New South Wales, applicants seeking a recognition payment or assistance for economic loss must provide ‘a medical, dental or counselling report verifying that [the applicant has] been injured (physical or psychological)’.^[87]

14.91 The Commission notes that most of the barriers associated with the documentary evidence requirements, as identified by stakeholders, relate to the evidentiary requirements for proving mental illness or disorder. However, as submitted by Inner Melbourne Community Legal, the Commission notes that victims who suffer physical harm—including victims of family violence—may not seek medical assistance in the immediate aftermath of a crime and may therefore be unable to prove their physical injury.^[88] Such victims may therefore be ineligible for assistance unless they can demonstrate that they have suffered a mental illness or disorder.^[89] The Commission therefore considers that its proposed broadening of the types of documentary evidence that can be provided to establish injury should also apply for the purposes of establishing physical injury.

14.92 Accordingly, the Commission considers that similarly to New South Wales and the Australian Capital Territory, the proposed Act should allow victims to provide a broader range of documentation to support their claim. The Commission considers that the

proposed Act should provide that applicants must provide at least one of the following to establish that they suffered injury as a result of a criminal act:

• a medical report, including from the applicant’s general practitioner

• hospital records

• a report from a psychologist or psychiatrist

• a report from a counsellor

• a report from a social worker

• a report from a family violence service

• a report from a government agency

• a report from an alternative non-government agency as determined by the decision maker.

14.93 The Commission notes that in some cases there may be overlap between the documentary evidence requirements for establishing that the applicant was the victim of a criminal act, and the documentary evidence requirements for establishing that the applicant suffered injury as a result of that criminal act.

Documentary evidence to establish expenses

14.94 The Commission considers that, as with existing requirements under the VOCAA,^[90] applicants should continue to be required to provide receipts, invoices, quotes, or other relevant documentary evidence (such as evidence of loss of earnings) to substantiate any assistance claimed under the immediate needs, funeral expenses, counselling and practical support streams of assistance, including expenses incurred or reasonably likely to be incurred.

Close personal relationship

14.95 In Chapter 13, the Commission concluded that people who were in a close personal relationship with a person who was injured or died as a result of a criminal act should be included in the definition of victim under the proposed Act. The Commission also considers that ‘close personal relationship’ should be broadly defined to address stakeholder concerns that the VOCAA does not adequately reflect the diversity of relationships that exist in the community.

14.96 The Commission acknowledges stakeholder concerns that it may be distressing for a person to have to prove their relationship for the purposes of accessing assistance.^[91] However, to ensure the sustainability of the proposed scheme in light of the Commission’s proposed broadening of the eligibility criteria, the Commission considers that victims who had a close personal relationship with a person who died or was injured as a result of a criminal act committed against them should be required to provide evidence of that relationship in support of their application. This would be similar to the current requirement under the VOCAA that related victims must provide evidence of their relationship with the deceased victim when making an application for assistance for ‘distress’.^[92]

Reducing the administrative burden

14.97 To address the administrative burden associated with collecting the documentary evidence necessary to support an application, the proposed Act should provide that, at a victim’s request, and within the limits of available resources, one of the functions of a scheme case manager should be to assist victims, so as far as is reasonably practicable, to collect supporting documentary evidence and complete the application forms. The Commission considers that the proposed Act should empower the scheme decision maker, including case managers, with the victim’s consent, to request documentary evidence and to obtain any other necessary and relevant information for the purposes of determining an application made under the proposed Act.

14.98 As stated in the joint submission received from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, a case management approach, where evidentiary requirements are identified and discussed with the victim at the outset of an application, could also reduce reliance on legal advice.^[93]

Recommendations—documentary evidence requirements

Evidence required to establish a criminal act

60 To assist the scheme decision maker in determining whether the applicant was the victim of a criminal act, the proposed Act should provide that an applicant must provide at least one of the following in support of their application:

(a) a record of the conviction of the perpetrator

(b) a police report

(c) a Family Violence Intervention Order, Family Violence Safety Notice or Personal Safety Intervention Order

(d) a medical report

(e) a report from a psychologist

(f) a report from a counsellor

(g) a report from a social worker

(h) a report from a government department or agency

(i) a report from a family violence service

(j) a report from a non-government agency, as determined by the scheme decision maker.

61 The proposed Act should provide that where an applicant is unable to provide any of the required documentary evidence, the applicant must provide a statutory declaration stating the reasons why the documentary evidence has been unable to be provided.

Recommendations—documentary evidence requirements (continued)

Evidence required to establish injury

62 To assist the scheme decision maker in establishing that the applicant has suffered injury as a result of the criminal act, the proposed Act should provide that an applicant must provide at least one of the following in support of their application:

(a) a medical report, including from the applicant’s general practitioner

(b) hospital records

(c) a report from a psychologist or psychiatrist

(d) a report from a counsellor

(e) a report from a social worker

(f) a report from a family violence service

(g) a report from a government agency

(h) a report from a non-government agency, as determined by the scheme decision maker.

Evidence required to establish a close personal relationship

63 The proposed Act should provide that an applicant who had a close personal relationship with a person who died or was injured as a result of a criminal act must provide evidence of that relationship in support of their application.

Evidence required to establish expenses

64 The proposed Act should provide that an applicant must provide a written quotation, invoice, receipt, or other relevant documentary evidence in support of any claim for expenses already incurred or reasonably likely to be incurred for immediate needs, funeral expenses, counselling, and practical support.

Reducing the burden on victims—assisting victims to meet their documentary evidence requirements

65 The proposed Act should provide that at a victim’s request, and so far as is reasonably practicable within the limits of available resources, scheme case managers must assist victims with the collection of documentary evidence and/or the completion of the relevant application forms.

Use of materials in other proceedings and inspection and publication of materials

14.99 This part considers the circumstances in which documents and materials produced for the purposes of a VOCAT application can be inspected, published or used in other legal proceedings, and makes recommendations about the inspection, publication and use of documents and materials produced for the purposes of the proposed Act and scheme.

Current law

Use of materials in other proceedings

14.100 Under the VOCAA, evidence of anything said in a VOCAT hearing, or any document prepared solely for the purpose of an application under the VOCAA, is not admissible in any civil or criminal proceeding in a court or a tribunal or in any other legal proceeding within the meaning of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) except in:

• a proceeding before VOCAT itself, or in a proceeding arising out of a VOCAT proceeding

• a proceeding for an offence against the VOCAA

• a proceeding for fraud or perjury offences against the Crimes Act 1958 (Vic)

• with the consent of the person to whom the words or document principally refers or relates.^[94]

14.101 Materials relating to a VOCAT matter may also be admissible in another proceeding if a party to that proceeding requests that they be ruled admissible, and the court or tribunal considers that it is in the interests of justice to do so.^[95]

14.102 As the Commission’s report The Role of Victims of Crime in the Criminal Trial Process noted, it is possible for VOCAT records to be subpoenaed and used by the defence in criminal hearings to demonstrate inconsistencies in a victim’s evidence and to challenge the credibility of a victim.^[96] The Commission was informed that VOCAT records are regularly subpoenaed for this purpose.^[97]

14.103 In that report, the Commission recommended that applications, supporting documentation and documents provided to or prepared for, or on behalf of, VOCAT at any time in connection with an application for financial assistance under the VOCAA should be inadmissible as evidence in any criminal legal proceedings except:^[98]

• in criminal proceedings in which the applicant is the accused

• in or arising out of proceedings before VOCAT

• with the applicant’s consent.

14.104 The Commission also recommended that a person should not be required by subpoena or any other procedure to produce any application or document that would be inadmissible following the implementation of the above recommendation.^[99]

14.105 The Commission’s rationale, confirmed through consultations at the time, was that medical, psychological, psychiatric and counselling records provided to VOCAT are prepared for a specific purpose—determining an applicant’s eligibility under the VOCAA. The Commission concluded that it is not appropriate for such materials to then be used for the purposes of criminal proceedings without the victim’s consent.^[100]

14.106 The Commission stated:

Victims are entitled to apply for assistance from VOCAT to help them with their recovery. They should not be discouraged from doing so because of fear that an offender will seek to access or use their VOCAT records in criminal proceedings.^[101]

14.107 As at 28 May 2018, these recommendations are yet to be implemented and therefore remain relevant considerations in the Commission’s current examination of Victoria’s victims of crime assistance scheme.

Inspection of documents

14.108 Section 42A of the VOCAA allows for the inspection of documents filed in a VOCAT proceeding in certain circumstances. The VOCAA provides that the applicant in the proceeding and, on payment of any prescribed fee, any other person, may inspect and obtain a copy of any document filed in a VOCAT proceeding.^[102]

14.109 However, as an exception to the above, the VOCAA provides that:

• a person may not inspect or obtain a copy of a document which VOCAT has ordered remain confidential,^[103] and

• a person, not being the applicant in the proceeding, may not, without the leave of VOCAT, inspect or obtain a copy of a document which in the opinion of a registrar of VOCAT ought to remain confidential.^[104]

14.110 VOCAT has published a Practice Direction which specifies the procedure to be followed when a request is made under the VOCAA to inspect or obtain a copy of a document filed in a VOCAT proceeding, including ‘classified’ documents, such as medical or counselling reports.^[105]

14.111 However, the inspection of documents provisions in the VOCAA do not prevent documents filed in a VOCAT proceeding from being subpoenaed, even if VOCAT considers the documents to be confidential.^[106] If VOCAT receives a subpoena to access documents that it considers should not be inspected under section 42A, it will provide the documents to the issuing court in a sealed envelope, noting its objection to their inspection or release without leave of the court.^[107] The court hearing the matter may then order that the documents be inspected or released, notwithstanding VOCAT’s objection.^[108]

Publication of materials

14.112 The VOCAA provides that, except in accordance with an order from VOCAT, a person must not publish material produced as part of an application to VOCAT.^[109] This includes evidence given at a hearing,^[110] the content of specified documents^[111] and any information likely to lead to the identification of a party or another person at a VOCAT hearing.^[112]

14.113 It is an offence to publish any material without an order by VOCAT allowing the publication.^[113] VOCAT may only grant the order if it believes that it is in the public interest to do so.^[114]

Responses

Use of materials in other proceedings

14.114 In the Commission’s supplementary consultation paper, stakeholders were asked whether VOCAT application materials should be admissible as evidence in criminal or family law proceedings.^[115]

14.115 Stakeholders confirmed that such materials are sometimes used in other legal proceedings and that this is problematic for some victims.^[116]

14.116 As knowmore submitted to the Commission, VOCAT application materials can contain sensitive personal information detailing the victim’s abuse (including childhood sexual abuse) and resultant psychological injury.^[117] If such materials are subpoenaed for use in other proceedings, this information may then be disclosed in those proceedings and used against the victim to discredit them—for example, by arguing that the victim made the complaint to police in order to obtain financial advantage via a VOCAT application.^[118]

14.117 A number of stakeholders also told the Commission that it is the practice of some defence lawyers to subpoena VOCAT application materials pre-trial.^[119] The Director of Public Prosecutions (DPP) also submitted that victims have been cross-examined on their VOCAT application materials.^[120] In one case, the DPP stated that VOCAT application materials were used by the defence to secure a re-trial which resulted in an acquittal because of inconsistencies between the victim’s evidence at trial and their VOCAT application materials.^[121]

14.118 Knowmore submitted that the use of VOCAT application materials in family law proceedings is also an issue for some victims.^[122] In particular, knowmore stated that psychiatric reports produced for the purposes of a VOCAT application have been used against its clients in family law proceedings.^[123]

14.119 Given how VOCAT application materials can be used by alleged offenders in other legal proceedings, many stakeholders expressed the view that materials produced for the purposes of a VOCAT application should be inadmissible in other proceedings, including criminal or family law proceedings.^[124]

14.120 For example, Women’s Legal Service Victoria and Domestic Violence Victoria submitted that access to and use of records related to VOCAT applications should be restricted and protected from subpoena due to the sensitive nature of the information,^[125] and to ensure victims are not re-traumatised by having this information made available to the alleged perpetrator.^[126]

14.121 Stakeholders also expressed the view that because VOCAT records directly relate to a victim’s recovery, they should be deemed to have been provided for a ‘therapeutic’ purpose.^[127] Any access to or use of these records without the applicant’s consent would conflict with this purpose.^[128]

14.122 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted that VOCAT application materials may have limited probative value in other proceedings, but that it is difficult for VOCAT members to assess this, as they do not have access to the other proceedings.^[129] The submission therefore questioned whether the ability to subpoena VOCAT application materials should be retained.^[130]

14.123 However, other stakeholders submitted that victims should be able to consent to VOCAT application materials being used in other proceedings where this might benefit them, such as for a plea in mitigation or as evidence of their victimisation in an application for revocation or discharge of infringements.^[131]

14.124 Some stakeholders stated that VOCAT materials should continue to be admissible, but that the interests of justice test in section 65 of VOCAA should be amended to better protect victims by limiting access to such materials in certain circumstances.^[132]

Inspection of documents

14.125 Knowmore submitted that in addition to VOCAT application materials being inadmissible in other legal proceedings, such materials should also not be shared with other schemes, such as the Transport Accident Commission (TAC) or WorkCover.^[133] These materials can also be used against victims in the context of applications for compensation under these schemes—for example, knowmore submitted that it assisted a client whose institutional records relating to the sexual abuse she suffered in state care were used against her in TAC proceedings as evidence that her pain and suffering was the result of pre-existing trauma from this abuse.^[134]

14.126 Knowmore’s submission did not state the mechanism by which VOCAT application materials are shared with other schemes, but it may be that the inspection provisions contained in the VOCAA are the basis on which VOCAT documents are accessed by other schemes.

14.127 Inner Melbourne Community Legal stated that ‘access and use of VOCAT records should be restricted’ because such records ‘pertain directly to [a] victim’s recovery’ and the release of the documents without the victim’s consent would run contrary to this.^[135]

Publication of materials

14.128 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted that there is lack of clarity regarding the publication provisions in the VOCAA.^[136] It was submitted that some judicial officers in higher jurisdictions had interpreted the existing publication prohibition as requiring VOCAT members to make an order under section 43(3) of the VOCAA every time VOCAT material is subpoenaed to that higher court, on the basis that the release of such materials to a party by a prothonotary or registrar is an act of publication, even where an order was made by the judge under rule 42A(10) of the Supreme Court (General Civil Procedure) Rules 2015.^[137]

14.129 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria questioned whether it should be possible to subpoena VOCAT application materials for the purposes of other legal proceedings. However, if the current provisions are retained, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the meaning of ‘published’ in section 43 of the VOCAA should be clarified.^[138]

Discussion and recommendations

Use of VOCAT application materials in other proceedings

14.130 The Commission notes widespread stakeholder concern regarding the use of VOCAT application materials in other legal proceedings without the victim’s consent.^[139] In particular, the Commission notes the concern that alleged perpetrators may access VOCAT application materials to discredit victims in criminal and family law proceedings.^[140] This can result in victims being subjected to cross-examination about their VOCAT application during a criminal trial.^[141] Stakeholders also expressed concern that the use of VOCAT application materials in other proceedings may result in personal and sensitive information about the crime being used for non-therapeutic and unintended purposes.^[142]

14.131 In the Commission’s view, the current use of VOCAT application materials in such ways conflicts with the beneficial intent of a victims of crime assistance scheme and the objectives of the VOCAA, which include assisting victims recover from crime.^[143] It may be re-traumatising for a victim if an alleged perpetrator obtains information about the impact of the crime on the victim, including any physical and/or psychological injuries, and then uses that information against the victim. This may also undermine the benefit of any assistance provided under the scheme.

14.132 The Commission reiterates the recommendation from its report The Role of Victims of Crime in the Criminal Trial Process that applications, supporting documentation and documents provided to, or prepared for or on behalf of VOCAT in connection with an

application for financial assistance under VOCAA should be inadmissible as evidence in any criminal legal proceedings except:^[144]

• in criminal proceedings in which the applicant is the accused

• in or arising out of proceedings before VOCAT (for the purposes of the proposed Act, this exception would be ‘in or arising out of proceedings relating to the application to which the applicant is a party’)

• with the applicant’s consent.

14.133 The Commission also reiterates the recommendation in The Role of Victims of Crime in the Criminal Trial Process that a person should not be required by subpoena or any other procedure to produce any application or document that would be inadmissible following the implementation of the above recommendation.^[145]

14.134 The Commission acknowledges stakeholder submissions that it may also be harmful to victims if their materials produced for the purposes of applying to a victims of crime assistance scheme are used in other types of proceedings, including family law proceedings. The Commission therefore considers that the above recommendation should be extended, so that materials produced for the purposes of an application under the proposed Act are inadmissible in any other legal proceedings, except with the applicant’s consent.

14.135 It should continue to be possible to subpoena scheme application materials where such materials are admissible in legal proceedings following the implementation of the above recommendations—for example, in criminal proceedings in which the applicant is the accused.

14.136 The Commission notes that its proposed approach would be similar to the approach in New South Wales. The Victims Rights and Support Act 2013 (NSW) provides that an application for assistance, any supporting documents, and any documents provided or prepared in connection with an application are not admissible as evidence in any other criminal or civil proceeding, except where the applicant is an accused person in criminal proceedings or in proceedings before the Tribunal to determine any issue relating to the application.^[146] In addition, a person cannot be compelled to produce an inadmissible document.^[147]

Inspection of materials

14.137 The Commission notes that VOCAT’s 2016–17 Annual Report does not provide any information regarding the extent to which the inspection of materials provisions under the VOCAA are used.

14.138 However, the Commission acknowledges the concern expressed by knowmore that under the existing scheme, victims’ VOCAT application materials may be shared with other schemes and used against victims in the context of applications for compensation under these other schemes.^[148] The Commission also notes Inner Melbourne Community Legal’s submission that access to scheme materials should generally be restricted due to the sensitive and personal information they contain.^[149]

14.139 As outlined above, the Commission considers that materials produced for the purpose of an application under the proposed Act should be inadmissible in any other legal proceedings, with some exceptions.

14.140 The Commission considers that a similar rationale applies to the inspection of VOCAT application materials by persons other than the victim. The Commission therefore considers that under the proposed Act, application materials should only be able to be inspected:

• by the applicant

• by other persons with the applicant’s consent, or

• under a subpoena in the limited circumstances specified in Recommendation 66 below.

14.141 The Commission notes, however, that further consideration may need to be given to requests for scheme materials by other Victorian or Commonwealth agencies in circumstances where the victim does not consent to the release of the materials but the agency is empowered to access this information under legislation and/or as a result of information-sharing arrangements.

Publication of materials

14.142 In response to the consultation papers, the Commission received limited stakeholder submissions regarding the operation of the VOCAA publication provisions. As noted above, an exception to this was the issue raised in the joint submission from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, which noted a lack of legislative clarity regarding the word ‘publish’ in the VOCAA and the effect of this for the release of materials in response to a subpoena.^[150]

14.143 The Commission notes that VOCAT’s 2016–17 Annual Report does not provide any information regarding the extent to which the publication provisions under the VOCAA are used.

14.144 However, the Commission considers it important that the proposed Act continue to restrict the publication of materials to protect the identity and privacy of applicants, alleged perpetrators and any other participants in an application under the proposed Act.

14.145 Under the proposed scheme, decision makers would not be concerned with attributing guilt to alleged perpetrators. Instead, decision makers would be required to determine whether an applicant is a victim of a criminal act, and whether as a result of that criminal act, they suffered an injury. In addition, the Commission has proposed that victim conferences should not be for the purposes of fact finding or making financial assistance determinations. Nevertheless, the Commission notes that a determination under the proposed Act, and an acknowledgment of the victim’s experience through a victim conference or in a statement of acknowledgment, could raise concerns that an alleged perpetrator has not been given the right of reply. This is notwithstanding that such an acknowledgment or award of assistance under the proposed Act would not be a determination of criminal guilt, and would be solely for the benefit of the victim.

14.146 In this context, the Commission notes the ease with which private information can be made public through social media and the potential for a victim to use a determination under the proposed Act as the basis for making information public about an alleged perpetrator, which may have the effect of alleging guilt.

14.147 Similarly, the Commission notes that should an alleged perpetrator become aware of a victim’s application to the scheme, this information could also be made public and disseminated, thus causing fear, harm or distress to a victim.

14.148 In order to protect the privacy of any individuals the subject of an application or determination, including victims and alleged perpetrators, the Commission considers that the proposed Act should prohibit the publication of information in any form or medium that would identify any individuals the subject of an application.

14.149 In this context, the Commission notes the concept of ‘open justice’, which recognises ‘the crucial importance of public disclosure of what is happening in our legal processes’,^[151] in particular, that ‘those who have been charged with offences must be seen to have been subjected to a fair process according to law’.^[152] The Commission also notes that open justice is ‘a constitutional hallmark of the exercise of judicial power’.^[153]

14.150 However, the Commission considers that the proposed prohibition, and the proposed inspection of materials provision discussed above, do not infringe the principles of open justice. Under the proposed Act, the decision maker would not be making a finding of criminal guilt in relation to an alleged perpetrator. Instead, under the proposed Act, the functions and powers of the decision maker are limited to a determination of the question of whether a person is a victim of a criminal act, and whether as a result of that criminal act they suffered an injury. As such, the question of whether an alleged perpetrator has been afforded procedural fairness is not relevant. Furthermore, under the proposed Act, the decision maker would not be a judicial officer and would not exercise judicial power.

14.151 The Commission notes that publication prohibitions also apply in Tasmania and Western Australia. Tasmania’s Victims of Crime Assistance Act 1976 (Tas) contains a publication prohibition in relation to hearings conducted under that Act.^[154] The Act provides that proceedings are to be conducted in private and a person must not publish, or allow to be published, a report of proceedings.^[155] In Western Australia an assessor may, if satisfied that it is in the interests of justice, prohibit publication of an application to the scheme, proceedings in relation to such an application, any decision, award or order made by an assessor and any reasons provided.^[156] In particular, an assessor may prohibit publication where this is likely to lead members of the public to identify a victim, a close relative of a deceased victim or an alleged offender.^[157]

14.152 Notwithstanding the above, and for the purposes of scheme reporting, the Commission considers that the proposed Act should provide that the publication prohibition does not apply to the publication of de-identified data. This would include data on scheme expenditure.

14.153 In addition, the Commission considers that the proposed Act should provide that the proposed publication prohibition does not prevent a victim from speaking to the media or publishing concerns about the proposed scheme’s process, provided that the victim, or any other individual the subject of an application, including an alleged perpetrator, is not identified.

14.154 In addition, and to address an ambiguity in the VOCAA regarding the release of materials in response to a subpoena, as identified in the joint submission from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria,^[158] the Commission considers that the proposed Act should clarify that the publication prohibition does not apply to the release of scheme materials in accordance with a subpoena. However, the Commission notes that scheme materials could only be released in response to a subpoena where they would not be inadmissible as a result of the Commission’s recommendations above.

Recommendations—use of application materials

Use of application materials in other proceedings

66 The proposed Act should provide that an application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act are not admissible as evidence in any other legal proceedings, except:

(a) in criminal proceedings in which the applicant is the accused

(b) in or arising out of proceedings relating to the application to which the applicant is a party, or

(c) with the applicant’s consent.

67 The proposed Act should provide that a person is not required by subpoena, or any other procedure, to produce any application or other document that would be inadmissible following the implementation of Recommendation 66.

Inspection of application materials

68 Except in accordance with Recommendation 66, the proposed Act should provide that an application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act may only be accessed by the applicant or, with the applicant’s consent, by another person.

Publication of application materials

69 The proposed Act should provide that a person must not publish, or cause to be published, any details or documentation related to, or produced for, the purposes of:

(a) an application to the scheme that would be likely to lead to the identification of any individual the subject of an application, including applicants and alleged offenders

(b) a determination of the scheme that would be likely to lead to the identification of any individual the subject of an application, including applicants and alleged offenders

(c) any proceeding conducted by the scheme, including a victim conference, that would be likely to lead to the identification of any individuals the subject of an application, including applicants and alleged offenders.

Recommendations—use of application materials

Publication of application materials (continued)

70 The proposed Act should provide that the publication prohibition does not

apply to:

(a) the publication of de-identified data for the purpose of scheme reporting

(b) media or other public reports about the scheme which appropriately de-identifies individuals

(c) any information that would not lead to the identification of any individuals the subject of an application

(d) the release of any application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act by a court or tribunal in accordance with a subpoena, where such materials are not inadmissible as a result of Recommendation 66.

Time limits for making an application

14.155 This part outlines the current law with respect to the time limits that apply for the making of an application under the VOCAA. It also considers stakeholder views regarding the existing application time limits and makes recommendations for the application time limits to be applied under the proposed Act.

Current law

14.156 Under the VOCAA, an application for financial assistance must be made within two years of the act of violence.^[159] VOCAT must strike out applications made outside this time limit ‘unless it considers that, in the particular circumstances, the application ought not to be struck out’.^[160] As discussed below, the VOCAA specifies the matters VOCAT must have regard to in determining whether to further hear and determine an application made out of time. As is also discussed below, there are exceptions to the time limit that apply to child victims of physical and sexual abuse.^[161]

14.157 The VOCAA provides that VOCAT must not decide to hear an out-of-time application only because the applicant was unaware of the scheme or the time limit.^[162] This means that a victim’s lack of knowledge of the scheme, or the time limit, can be a barrier to accessing the scheme.

14.158 Where an applicant wishes to lodge an application outside the two-year time limit, they must apply for leave from VOCAT using the ‘application for extension of time’ form.^[163]

14.159 The form requires the applicant to set out their reasons for not lodging the application within the time limit and to attach supporting documentation.^[164] The applicant can state whether they want the time extension to be decided without appearing before VOCAT.^[165]

Considering the particular circumstances of the case

14.160 In deciding whether to hear an out-of-time application, VOCAT must have regard to:^[166]

• the applicant’s age when the act of violence occurred

• whether the applicant is intellectually disabled^[167] or mentally ill^[168]

• whether the perpetrator of the act of violence was in a position of power, influence or trust in relation to the applicant

• the physical or psychological effect of the act of violence on the applicant

• whether the delay in making the application threatens VOCAT’s capacity to make a fair decision

• whether the applicant was a child at the time of the act of violence and they made the application for assistance within a reasonable time after turning 18

• all other circumstances that VOCAT considers relevant.

14.161 VOCAT has used its discretion to consider ‘all other circumstances’^[169] to consider factors such as the prospect of success of the substantive case.^[170] VOCAT may also consider circumstances such as:

• whether the applicant can show an acceptable explanation for the delay

• whether it would be fair and equitable to extend the time limit

• whether VOCAT has been prejudiced by the delay

• whether the delay might result in ‘unsettling’ other people

• considerations of fairness to affected individuals.^[171]

Child victims of physical and sexual abuse

14.162 Different application time limits now apply to child victims of physical and sexual abuse. The Justice Legislation Amendment (Victims) Act 2018 was enacted in February 2018 and creates a new section 29(1A) of the VOCAA.^[172] This new section provides that an application may be made at any time where a victim was under 18 at the time that the act of violence was committed against them and the act of violence consisted of physical or sexual abuse.^[173]

14.163 This amendment to the VOCAA will address the issue identified in the Commission’s supplementary consultation paper of child victims being unable to make out-of-time applications. This issue was illustrated in S v Victims of Crime Assistance Tribunal,^[174] where an alleged rape took place when the applicant was 17. VCAT upheld VOCAT’s decision to strike out the application for being out of time because the alleged perpetrator had not been in a position of power, influence or trust over the applicant and there was no psychiatric evidence linking the trauma of the rape to the applicant’s delay in making the application.^[175]

14.164 While this amendment to the VOCAA is a positive development in removing barriers to assistance currently experienced by some classes of child victim, the Commission considers that for other child —and adult—victims, the two-year time limit may still operate as a disproportionately difficult barrier to overcome, including for family violence victims,^[176] victims of abuse or neglect in care, and adult victims of sexual assault.^[177] This is because the discretionary factors that VOCAT must consider in determining whether to allow an out-of-time application to be heard have been interpreted narrowly.^[178]

14.165 For example, in BFK v Victims of Crime Assistance Tribunal,^[179] VCAT affirmed VOCAT’s decision to strike out an application for being out of time because the 18-year-old applicant’s alleged perpetrator boyfriend had not been in a position of power, influence or trust over her, as he was not significantly older and VCAT considered he was ‘troubled’ rather than ‘calculating and controlling’.^[180]

14.166 VCAT also found in that case that the 23-year delay between the alleged act of violence and the application denied VOCAT the opportunity to make a fair decision:

This delay raises questions as to the accuracy of memories of events long past, particularly in the context of conflicting evidence and all potential corroborating evidence being no longer available. ^[181]

14.167 In addition, regardless of crime type, the application time limit can present a particular barrier to accessing assistance for more vulnerable groups of the community, including those with disability, members of the LGBTIQ community, Aboriginal and Torres Strait Islander applicants, children and those from non-English-speaking backgrounds.^[182] As discussed further in Chapter 15, as a result of discrimination, lack of cultural safety and accessibility issues more generally, these victims may not feel comfortable reporting the crime to the police or to authorities more generally, which may also delay them in making an application to VOCAT.

14.168 Finally, the mere existence of the time limit, and the words used in the VOCAA to describe it, can operate as a barrier for some victims, who may not be aware that out of time applications may be allowed and/or in what circumstances.^[183] In BFK v Victims of Crime Assistance Tribunal,^[184] VCAT noted that section 29 of the VOCAA is ‘couched in strong terms’, providing that VOCAT ‘must strike out’ an application made out of time. VCAT contrasted this ‘strong’ language to the more flexible and neutral language employed in other provisions of the VOCAA, such as where the word ‘may’ is used.^[185]

Responses

14.169 In the Commission’s consultation papers, community and stakeholder views were sought on whether:

• the two-year application time limit is still appropriate

• the time limit should be removed for some crime types, victim cohorts or certain types of assistance

• the decision maker should have to consider additional factors when determining whether or not to accept an out-of-time application

• the decision maker should be required to publish data and reasons for decisions relating to out-of-time applications.^[186]

14.170 In response, stakeholders told the Commission that VOCAT frequently grants extensions for applications made outside the two-year time limit,^[187] particularly for childhood sexual abuse matters.^[188] This was confirmed by the joint submission received from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria.^[189] However, many stakeholders and members of the community expressed concern that the current time limit nevertheless presents difficulties for victims for the following reasons:

• a two-year time limit is too short and not evidence-based

• the time limit disproportionately impacts particular cohorts of victims

• the decision maker should be required to consider additional factors when deciding whether to grant an out-of-time application

• there is a lack of clarity regarding when out-of-time applications will be allowed, which results in inconsistent decisions.

14.171 Each of these concerns is discussed in turn below.

Two-year time limit too short and not evidence-based

14.172 A number of stakeholders expressed the view that the two-year time limit is too short.^[190]

14.173 This is because victims’ lives are often ‘complex and chaotic’ in the period following an offence and victims may be unable to manage a ‘bureaucratic’ process within a two-year timeframe.^[191] Similarly, Ryan Carlisle Thomas Lawyers submitted that victims may be busy trying to ‘get their lives “back on track”’ in the aftermath of a crime.^[192]

14.174 Stakeholders also told the Commission that trying to meet the two-year time limit can re-traumatise victims^[193] and place undue stress on them when they are dealing with grief and trauma at ‘a time of heightened vulnerability’.^[194] The RMIT Centre for Innovative Justice told the Commission that being told by a lawyer that the application is ‘out of time’ can cause stress and worry for the victim, regardless of whether VOCAT is likely to accept an out-of-time application.^[195]

14.175 Stakeholders also noted that the two-year time limit may not reflect victims’ experience of trauma. Some victims, particularly family violence victims, may take time to deal with the psychological consequences of violence and to be able even to name or identify what has happened to them.^[196] Springvale Monash Legal Service also submitted that for some victims of childhood sexual abuse, disclosing the abuse is a ‘process’ rather than an ‘event’.^[197] The Judicial Advisory Group on Family Violence stated that family violence victims ‘may not tell anyone about the violence for many years before they leave the relationship’.^[198]

14.176 Echoing these concerns, victim representatives told the Commission that some victims may take up to 15 years to realise they are experiencing post-traumatic stress disorder from a crime and that they therefore need financial assistance.^[199]

14.177 The Commission was told that the two-year time limit is ‘arbitrary’ and that any time limit imposed by the scheme should be evidence-based.^[200] In addition, the current time limit is inconsistent with the time limits prescribed in the Limitation of Actions Act 1958 (Vic).^[201]

14.178 Some stakeholders supported increasing the time limit to three years to be consistent with other Australian victims of crime assistance schemes, and compensation schemes more generally.^[202] Others stated that an increased time limit should be based on the evidence regarding known timeframes for reporting crimes, but did not specify what those time limits should be.^[203]

14.179 The Director of Public Prosecutions submitted that the time limit should take into account the time it takes to finalise criminal matters.^[204] A number of legal professionals told the Commission that the two-year time limit could start running from the end of the criminal trial, instead of from the date of the act of violence.^[205]

14.180 Another approach is that the time limit could be increased for particular victim cohorts only, including:

• child victims^[206]

• childhood sexual assault victims^[207]

• rape and sexual assault victims^[208]

• family violence victims.^[209]

14.181 Other stakeholders stated that the time limit should be removed completely for certain victim cohorts, including:

• victims under 18 at the time of the act of violence (regardless of crime type),^[210] or victims of child abuse^[211] or child sexual abuse^[212]

• victims of sexual offences^[213]

• victims of family violence.^[214]

14.182 In their joint submission, the Magistrates’ Court of Victoria and VOCAT stated that the time limit could be removed for particular offences, but the submission did not specify which offences.^[215]

14.183 In contrast, other stakeholders expressed concern that having different time limits for different categories of victim might inadvertently result in a stricter application of the time limits, in contrast to the current flexible approach, where out-of-time applications are often allowed.^[216]

14.184 Safe steps Family Violence Response Centre proposed removing the time limits for all victims claiming assistance for counselling or other victim support or referral services.^[217]

14.185 There was also stakeholder support for removing all time limits (regardless of crime or victim type),^[218] with Anglicare Victoria Victims Assistance Program questioning the need for a time limit, particularly given VOCAT frequently grants out-of-time applications.^[219]

14.186 Some stakeholders expressed concern that the mere existence of a time limit may create barriers.^[220] Victims may not be aware that out-of-time applications may be accepted and/or in which circumstances, or they may not want the added administrative burden of having to pursue an out-of-time application in addition to the application for assistance.

14.187 For example, the Commission was told that there is nothing in the guidance materials to indicate VOCAT’s willingness to grant extensions, which means that applicants may not be aware that an out-of-time application may be successful unless they have a legal representative assisting them.^[221]

14.188 Other stakeholders told the Commission that some victims hear about the two-year time limit and simply assume they are ineligible.^[222] This raises issues of fairness and accessibility, as only those applicants with access to legal advice may make out-of-time applications.

Difficulties for particular victim cohorts

14.189 There was widespread concern among stakeholders that the two-year time limit creates a particularly onerous barrier for particular groups of victims.

14.190 Springvale Monash Legal Service told the Commission that the time limit is particularly difficult to meet for those victim cohorts who typically take more than two years to identify, disclose and report violence and abuse.^[223]

14.191 This includes family violence victims, who may take a long time to recognise their experiences as violence, regain stability and address the psychological consequences of the abuse they have suffered.^[224] Domestic Violence Victoria told the Commission that some victims may not access support services until 10 years after family violence has occurred.^[225]

14.192 The Commission was told that during the two years following the violence, family violence victims are often dealing with other urgent matters, such as keeping their children safe and re-establishing their lives.^[226] The Victim Survivors’ Advisory Council, Women’s Legal Service Victoria and Domestic Violence Victoria emphasised that family violence victims are often dealing with multiple other legal processes which can take a long time to resolve.^[227] The two-year time limit therefore ‘does not account for [the] cumulative effect [and] multiple events’ often associated with family violence.^[228]

14.193 Women’s Legal Service Victoria and Domestic Violence Victoria submitted that some victims of family violence fear reprisal from perpetrators, distrust authorities and the legal system and have had other experiences of systemic discrimination. All this compounds their experiences of violence and the justice system and impacts their ability to apply within the two years.^[229] Women’s Legal Service Victoria and Domestic Violence Victoria submitted that in response to a practitioner survey conducted in 2017, 75 per cent of respondents stated that they had submitted applications for family violence victims outside the two-year time limit.^[230]

14.194 The Commission was referred to research indicating that the majority of victims who experience rape and sexual offences delay disclosing and/or reporting the crime, which the two-year time limit on applications fails to reflect.^[231]

14.195 While VOCAT has discretion to allow applications to be made out of time, stakeholders submitted that the factors VOCAT must have regard to in section 29(3) of the VOCAA, are too limited for family violence and sexual assault victims.^[232] Springvale Monash Legal Service submitted that the factors do not ‘adequately compensate for the unique nature of family violence and/or sexual assault and the disproportionate impact this time-limit for making an application has on victims of family violence’.^[233]

14.196 The Victorian Gay and Lesbian Rights Lobby submitted that VOCAT should be required to consider the sexual orientation, gender identity or intersex status of the victim when considering whether to strike out an out-of-time application.^[234]

14.197 Stakeholders highlighted the disproportionate impact that the time limit has on child victims. As evidenced by the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, some victims of childhood sexual assault may not disclose abuse until decades later.^[235] The CASA Forum submitted that the Royal Commission has the largest body of information available on these issues in Australia and that it found that the time from offence to disclosure is on average 22 years.^[236] The CASA Forum submitted that there ‘is no logic to having a two year limit if the 22 years [to disclose abuse] is an accepted figure’.^[237]

14.198 In relation to child victims, stakeholders also submitted that the time limit disadvantages those who:

• may not be capable of understanding the abuse^[238]

• may not have the skills to communicate abuse^[239]

• are subjected to the power and control of a perpetrator who prevents reporting^[240]

• do not have the means or capacity to make an application without the assistance of an adult but do not have a parent, carer or guardian able to make the application on their behalf—such as children in out-of-home care^[241]

• may not identify the violence and abuse of their childhood until later in life.^[242]

14.199 As noted above, the VOCAA has recently been amended to remove the time limit for child victims of physical and sexual abuse, which addresses some of the issues identified by stakeholders in relation to the impact of the time limit on child victims.

Factors considered by decision maker in accepting an out-of-time application

14.200 To better reflect the reasons for delayed applications to VOCAT, stakeholders supported amending the VOCAA to require VOCAT to consider additional factors when determining whether to accept an out-of-time application.^[243] Proposed factors included:

• whether the applicant has experienced family violence^[244]

• the nature of the relationship between the applicant and alleged offender, including whether they are a family member or in an intimate personal relationship^[245]

• whether the applicant has experienced homelessness^[246]

• whether the applicant has a diagnosed medical condition which affected their ability to make an application^[247]

• whether the applicant knew about the scheme or the time limit and if not, whether the applicant would have made an application within the prescribed time limit if they had been aware^[248]

• when the applicant became aware of the scheme and their entitlement to apply^[249]

• the applicant’s recovery period from serious injury^[250]

• the length of time taken for criminal proceedings to finalise^[251] and whether any related legal proceedings have been finalised^[252]

• the nature and effect of the act of violence,^[253] including whether it involved sexual assault or child abuse^[254]

• the applicant’s sexual orientation, gender identity or intersex status and whether this affected the delay in disclosure of abuse.^[255]

14.201 Other stakeholders submitted that specific criteria should be developed for some victim groups, such as children^[256] or other victims with ‘vulnerabilities’.^[257]

14.202 Other proposals included providing VOCAT with discretion to hear any out of time application, with wide discretion to consider any relevant circumstances.^[258]

14.203 Springvale Monash Legal Service considered that VOCAA should include guidelines stating that, a decision maker should err on the side of granting an extension, unless VOCAT would be unable to make a fair decision as a result of the delay.^[259]

14.204 In contrast, other stakeholders submitted that the current factors are already sufficiently broad, appropriately applied and cover the circumstances of most victims.^[260]

Lack of clarity and consistency

14.205 A number of stakeholders expressed the view that there needs to be ‘greater certainty about when an application may be heard out of time’ as well as greater transparency regarding section 29 decisions.^[261]

14.206 In particular, concerns were raised that the weight given to legislative factors in section 29(3) of the VOCAA is unclear. The Commission was told that although this section provides a broad range of circumstances that VOCAT must have regard to in determining an out-of-time application, the VOCAA does not provide any overall ‘yardstick’ for when applications should be granted—for example, whether they should only be granted in very exceptional circumstances.^[262]

14.207 This lack of clarity can result in different outcomes for similar applications.^[263] For example, Springvale Monash Legal Service submitted that:

Combined with a lack of access to written decisions, the varying approaches of Tribunal members can result in a lack of transparency and uncertainty. This raises concerns about the current scheme’s consistency and predictability for victims.^[264]

14.208 Legal professionals also told the Commission that the VOCAA is unclear as to when the two-year time limit starts running for victims of an act of violence that was committed when they were under the age of 18.^[265]

14.209 Stakeholders also submitted that the VOCAA is unclear as to when the two-year time limit begins for abuse that spans a period longer than two years—in particular, whether the time limit commences when the abuse started or after it ceased (if it has ceased).^[266]

Discussion and recommendations

Retaining an application time limit

14.210 Most stakeholders did not propose that application time limits should be abolished entirely. Rather, most stakeholders expressed concern that the current two-year timeframe is too short,—particularly for child victims and victims of family violence and sexual assault. In addition, stakeholders submitted that the circumstances in which out of time applications may be granted do not adequately account for victims’ experiences.

14.211 There are benefits to having an application time limit. A time limit may help promote scheme sustainability by providing some certainty regarding current and future liabilities. In addition, time limits may increase the likelihood that there will be sufficient evidence available for a decision maker to determine on the balance of probabilities that a criminal act has occurred and that an applicant has suffered an injury as a result of it. As such, where applicants are able to comply with the time limit, they may be more likely to be successful.

14.212 An application time limit may also encourage some victims to seek assistance earlier, which in turn may facilitate the earlier provision of practical and therapeutic support. Stakeholders told the Commission that earlier provision of support better assists victims in their recovery from crime.^[267]

14.213 The Commission therefore considers that the proposed Act should continue to prescribe an application time limit. However, to address the concerns identified by stakeholders, the Commission considers that the time limit provisions should be reformed to:

• increase the application time limit that generally applies

• further increase the application time limit for certain victims

• abolish the application time limit for a broader range of child victims

• abolish the application time limit for applications for counselling

• expand the factors that the decision maker must have regard to when determining whether to accept an out of time application, to reflect diverse victim experiences

• improve consistency and transparency in the determination of out-of-time applications.

14.214 Each of these proposed reforms is discussed below.

Increasing the application time limit generally

14.215 The Commission notes the significant stakeholder concern that the current two-year application time limit is not appropriate, notwithstanding VOCAT’s practice of frequently allowing out-of-time applications to be lodged.^[268] In particular, the Commission notes that the existing application time limit is ‘arbitrary’ and inconsistent with victims’ recovery needs, particularly victims of family violence and sexual assault.^[269]

14.216 The Commission also notes that victims of crime assistance schemes in most other Australian jurisdictions have a three-year application time limit, with a further increased time limit for some victim cohorts, such as victims of family violence and sexual assault.^[270]

14.217 Similarly to these other jurisdictions, the Commission considers that under the proposed Act, a general application time limit of three years should apply from the date of the criminal act, or for child victims, three years from the date on which the victim turns 18. This would bring the proposed Act into line with other Australian jurisdictions. The Commission also notes that a number of stakeholders proposed extending the time limit to three years.^[271]

14.218 In relation to child victims, the Commission considers that the current approach under the VOCAA, which provides that the time period applies from the date on which a child victim turns 18, should be preserved. The effect of this would be that under the proposed Act, the application timeframe for a child victim would not expire until three years after the date on which the victim becomes an adult. However, as is the case under the existing scheme, this would not prevent an application for a child victim being made by a child’s parent or legal guardian before the child turns 18.

14.219 In addition, the Commission considers that specific exceptions to the application time limit should apply to child victims to preserve—and further extend—the exceptions for child victims of physical or sexual abuse introduced earlier this year, as outlined above.

14.220 The Commission also considers that exceptions to the general application time limits should apply where:

• the criminal act was a sexual offence, or occurred in the context of family violence—the time limit for bringing an application should be increased in these circumstances to 10 years

• the assistance sought is for counselling—there should be no application time limit in these circumstances.

14.221 Each of these exceptions is discussed further below.

Increasing the time limit for certain victims

14.222 The Commission notes the widespread stakeholder concern that the two-year application time limit has a disproportionate impact on child victims and victims of sexual assault and family violence.^[272] These victim cohorts may take much longer to recognise the violence and/or its effects on them, and/or to disclose or report it.

14.223 The Commission therefore considers that a 10-year application time limit should apply to adult victims of a criminal act that constitutes a sexual offence, or that occurred in the context of family violence. This proposed approach would be consistent with the approach taken in New South Wales, where the application time limit is 10 years for victims of domestic violence, child abuse or sexual assault.^[273] The Judicial Advisory Group on Family Violence submitted that this time limit would be appropriate for victims of sexual assault and/or family violence.^[274]

14.224 The Commission considers that separate exceptions should continue to apply to child victims. Recent amendments to the VOCAA mean that currently, no time limit applies to child victims of acts of violence that consist of physical or sexual abuse, in contrast with the approach in New South Wales

14.225 This exception should be retained under the proposed Act. However, the Commission considers that this exception should be broadened so that no application time limit applies for child victims of a criminal act that occurs in the context of ‘child abuse’ as defined by the Child Wellbeing and Safety Act 2005 (Vic).^[275] This definition includes both physical and sexual abuse—as is currently recognised by the VOCAA exception—but also includes a broader range of acts including grooming, serious emotional or psychological harm and serious neglect. The Commission considers that broadening the exception in this way is appropriate given the special vulnerability of child victims which arises in a wider range of circumstances than an offence consisting of physical or sexual abuse.

14.226 The current exception to the application time limit for child victims should be expanded to apply to child victims of family violence, including where the child was exposed to family violence but the violence was not committed against them directly. This reflects the well-documented impact of exposure to family violence on children and that the effect of such violence may not manifest or be recognised until much later in the child’s life.^[276]

14.227 The Commission considers that no application time limit should apply for child victims of a criminal act in the context of family violence, as defined by the Family Violence Protection Act 2008 (Vic), or for child victims who witnessed or were otherwise exposed to a criminal act that occurred in the context of family violence.

14.228 This proposed approach would also be consistent with, although broader than, the approach in New South Wales, where no application time limit applies to child victims of a sexual offence. In the Commission’s view, this broader approach is appropriate. It preserves the existing time limit exceptions for child victims that currently apply in Victoria, while also recognising the significant impact of family violence on children and that, as with childhood sexual and physical abuse, there may be a significant delay in recognising and disclosing this violence.

No time limit for counselling

14.229 In addition to the exceptions to the application time limit proposed above in relation to certain victims, the Commission has considered stakeholder submissions that different time limits should apply depending on the type of assistance claimed. In particular, the Commission notes safe steps Family Violence Response Centre’s proposal that time limits be removed for all victims claiming assistance for counselling.^[277]

14.230 The Commission notes that not all victims have a linear recovery pathway, and that for some victims, the impacts of crime may manifest many years later.^[278] Application time limits may prevent some of these victims from accessing assistance under the VOCAA and this may continue to be the case for some victims under the proposed Act, even though increased time limits might apply.

14.231 While the Commission considers that time limits are necessary, a victim of a criminal act should not be completely barred from accessing support under the proposed Act on the basis of time limits alone. The Commission considers that no application time limit should apply to counselling. Victims should be eligible to apply for counselling at any time after the criminal act. This proposed approach would ensure that a victim of a criminal act is able to access therapeutic support even if time limits prevent the victim from accessing other forms of financial assistance.

Expanding the factors relevant to allowing an out-of-time application

14.232 The Commission considers that decision maker discretion to determine out-of-time applications appropriately balances the need for certainty that time limits provide, with the need to acknowledge the barriers that some victims face in making timely applications. The Commission therefore considers that decision maker discretion to allow an out of time application should be retained under the proposed Act. However, in response to concerns expressed by stakeholders, the Commission considers that the list of factors the scheme decision maker must consider when determining whether to allow an out-of-time application should be expanded under the proposed Act.

14.233 In determining whether to allow an application made out of time, the Commission considers that the proposed Act should require the decision maker to consider the following factors:

a) the applicant’s age at the time of the criminal act, including whether they were a child at the time that the criminal act occurred

b) whether the applicant is intellectually disabled within the meaning of the Disability Act 2006 (Vic) or mentally ill within the meaning of the Mental Health Act 2014 (Vic)

c) whether the alleged offender was in a position of power, influence or trust in relation to the applicant

d) the physical or psychological effect of the criminal act on the applicant

e) whether the applicant has or had a medical or psychological condition which affected their ability to make an application

f) the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence

g) whether the applicant has experienced homelessness

h) the length of time taken for any related legal proceedings to finalise

i) whether the delay in making the application threatens the capacity of the decision maker to make a fair decision

j) any other circumstances that the decision maker considers relevant.

14.234 Factors (a)–(d) and (i)–(j) above are matters that VOCAT is currently required under the VOCAA to have regard to.

14.235 Factors (e) to (h) are new additional factors that the Commission considers should also be included under the proposed Act. These additional factors respond to stakeholder views that the current factors do not adequately reflect diverse victim experiences and would help to ensure that the decision maker considers all relevant reasons why an applicant may not have been able to comply with the time limit.

14.236 In particular, the Commission agrees with the submission from Inner Melbourne Community Legal which stated that the decision maker should be required to consider whether the applicant has or had a medical or psychological condition that affected their ability to make an application, regardless of whether this was linked to the criminal act itself.^[279] In the Commission’s view, such a condition may have just as much impact on an applicant’s ability to make a timely application as would injury arising from the crime itself.

14.237 In addition, the Commission considers that in determining an out-of-time application, decision makers should be required to consider the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence. In the Commission’s view, the consideration of such a factor would enable recognition of the particular barriers faced by victims of family violence, and other victims of patterns of abuse, in disclosing the violence committed against them. For example, such victims may have feared perpetrator reprisals if they had made an application earlier, or been fearful of the psychological impact that the disclosure and subsequent report may have had on other members of the victim’s family.

14.238 The Commission considers that where victims of family violence seek assistance beyond the 10-year time limit, decision makers should be required to consider the impact of family violence in preventing the victim from making the claim within the 10-year time limit.

14.239 The Commission agrees with Inner Melbourne Community Legal that homelessness should be a factor that the decision maker is required to consider.^[280] The Commission notes that homeless persons are more likely than other members of the community to be victims of crime.^[281] In addition, victims of crime who are homeless face significant barriers to lodging an application, including access to necessary resources. In the Commission’s view, a victim’s housing situation, whether or not it is affected by the crime itself, should not operate as a bar to accessing assistance.

14.240 The Commission notes that where there are related legal proceedings, the Office of Public Prosecutions does not encourage victims to pursue a VOCAT application until criminal proceedings are finalised,^[282] notwithstanding that the VOCAA does not prohibit victims from applying for assistance during such proceedings, nor does it prohibit VOCAT from hearing such applications.^[283] The Commission is of the view that in considering an out-of-time application, the decision maker should be required to consider the length of time taken for any related legal proceedings to finalise, as this may have affected the timing of the application.

14.241 So that victims are not deterred from making applications outside any applicable time limit where they may be eligible to do so, the Commission considers that the proposed Act should provide that the following information be developed and made publicly available in plain language, Easy English, and other accessible formats:

• what time limits apply to what groups of victims

• when those time limits commence

• the circumstances in which the scheme may accept an out-of-time application

• the process for making an out-of-time application.

Increasing transparency and consistency in decision -making

14.242 In the Commission’s supplementary consultation paper, the Commission noted that it is difficult to determine the circumstances in which out-of-time applications are struck out by VOCAT under section 29 of the VOCAA.^[284]

14.243 Data published by VOCAT states that in 2016–17, 2096 of 7209 applications lodged (29.1 per cent) were either withdrawn or struck out.^[285] However, this data does not distinguish between those applications that are withdrawn and those that are struck out on the basis that they were submitted out-of-time. It is therefore difficult to determine how many applications are struck out under section 29 and the circumstances in which VOCAT considers that an extension should not be granted.

14.244 Stakeholders told the Commission that this lack of transparency can result in different outcomes for applicants with similar circumstances.^[286]

14.245 The Commission considers that the proposed Act should require the decision maker to provide written reasons to the applicant for not accepting an application made out of time.

14.246 The proposed Act should require the proposed scheme to publish annual data on out-of-time applications which are refused, and applications for assistance which are made within the applicable time limit, but are refused for other reasons.^[287] To promote transparency, predictability and consistency of decision making, the Commission considers that this data should include the reasons for refusal.^[288] It should also include the type of alleged offence and the type of assistance claimed.

14.247 The Commission also notes stakeholder concern that the existence of time limits may be off-putting for applicants, who may be unaware that they may be allowed to make an out-of-time application or unsure whether they would eligible for one.^[289]

Recommendations—application time limits

Time limits for the making of an application

71 The proposed Act should provide that:

(a) the time limit for making an application for immediate assistance, funeral expenses, practical assistance and/or a recovery payment is three years after the date the criminal act occurred, except where:

(i) the applicant was under the age of 18 when the criminal act occurred—in which case the time limit for making an application is three years from the day that the victim turns 18

(ii) the applicant is an adult victim of a criminal act which occurred in the context of family violence, as defined in the Family Violence Protection Act 2008 (Vic), or constitutes a sexual offence—in which case the time limit for making an application is 10 years after the date the criminal act occurred

(iii) the applicant was under the age of 18 when the criminal act occurred and the criminal act occurred in the context of child abuse, as defined in the Child Wellbeing and Safety Act 2005 (Vic), or family violence, as defined in the Family Violence Protection Act 2008 (Vic)—in which case there is no time limit for making an application.

(b) there is no time limit for making an application for an award of assistance for counselling.

72 The proposed Act should provide that where there are related criminal acts, the application time limit commences from the date of the last criminal act.

Considering applications made out of time

73 The proposed Act should provide that the scheme decision maker has the discretion to accept applications made out of time and that in considering such late applications must have regard to:

(a) the applicant’s age at the time of the criminal act, including whether they were a child at the time that the criminal act occurred

(b) whether the applicant is intellectually disabled within the meaning of the Disability Act 2006 (Vic) or mentally ill within the meaning of the Mental Health Act 2014 (Vic)

(c) whether the alleged offender was in a position of power, influence or trust in relation to the applicant

(d) the physical or psychological effect of the criminal act on the applicant

(e) whether the applicant has or had a medical or psychological condition which affected their ability to make an application

(f) the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence

(g) whether the applicant has experienced homelessness

(h) the length of time taken for any related legal proceedings to finalise

(i) whether the delay in making the application threatens the capacity of the scheme decision maker to make a fair decision

(j) any other circumstances that the scheme decision maker considers relevant.

74 To ensure victims are not deterred from making an application outside the application time limit, the proposed Act should provide that information about time limits, including the circumstances in which out-of-time applications may be accepted and the process for making such an application, should be developed and made publicly available.

Increasing transparency and consistency of decision making

75 To promote transparency, predictability and consistency of decision making, the proposed Act should provide that the scheme decision maker must:

(a) provide written reasons to the applicant for not accepting an application made out of time

(b) publish annual data on out-of-time applications that are refused, and applications for assistance that are refused for other reasons, including the categories and reasons for refusal.

1. Victims of Crime Assistance Act 1996 (Vic) ss 26(1)(a)–(b); Victims of Crime Assistance Rules 2010 (Vic) r 6.

   ↑

2. Victims of Crime Assistance Act 1996 (Vic) s 26(2); Victims of Crime Assistance Tribunal, Application for Assistance Form (2016) 2, 7.

   ↑

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

   ↑

4. The Justice Legislation Further Amendment Act 2016 (Vic) amended the VOCAA, removing the previous requirement for an applicant to verify their application form by way of statutory declaration. This change was intended to make it easier for applicants and legal practitioners to file an application electronically.

   ↑

5. Victims of Crime Assistance Tribunal, Lodging an Application (18 April 2018) <www.vocat.vic.gov.au/index.php/how-apply/lodging-application>. For the online application form, see Victims of Crime Assistance Tribunal, Application for Assistance (31 May 2016)
   
   <www.vocat.vic.gov.au/application-assistance>.

   ↑

6. Victims of Crime Assistance Rules 2010 (Vic) r 7(1)(b)(i). If there are multiple applicants in respect of one act of violence, the application must be lodged at the venue closest to where the act of violence was committed: r 7(1)(b)(ii). If the Chief Magistrate nominates a venue, then the application should be lodged at that venue: r 7(1)(a). A hard-copy application must lodged with the Registrar at the Melbourne Magistrates’ Court if the applicant resides outside Victoria, is a related victim, or is a primary or secondary victim who is aware of the existence of a related victim: r 7(2).

   ↑

7. Victims of Crime Assistance Tribunal, Where to Apply (12 April 2018) <www.vocat.vic.gov.au/how-apply/where-apply>.

   ↑

8. Victims of Crime Assistance Tribunal, Lodging an Application (18 April 2018) <www.vocat.vic.gov.au/index.php/how-apply/lodging-application>.

   ↑

9. Victims of Crime Assistance Tribunal, Application for Interim Assistance (2016) <www.vocat.vic.gov.au/application-interim-award>.

   ↑

10. Victims of Crime Assistance Act 1996 (Vic) s 29A(1).

    ↑

11. Ibid.

    ↑

12. Ibid s 29A(2).

    ↑

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

    ↑

14. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

    ↑

15. Submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria). See also submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

    ↑

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

    ↑

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

    ↑

18. Ibid.

    ↑

19. Submission 26 (Hume Riverina Community Legal Service). See VOCAT, How to Apply—Where to Apply (2018) (12 April 2018)
    
    <www.vocat.vic.gov.au/how-apply/where-apply>.

    ↑

20. Submission 26 (Hume Riverina Community Legal Service).

    ↑

21. Submissions 14 (Inner Melbourne Community Legal). See also submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

    ↑

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

    ↑

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

    ↑

24. Ibid.

    ↑

25. Submission 26 (Hume Riverina Community Legal Service).

    ↑

26. Victims of Crime Assistance Act 1996 (Vic) s 31.

    ↑

27. Ibid.

    ↑

28. (1938) 60 CLR 336. For VCAT’s application of this test to the Act, see, eg, BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [16]; Kirk v Victims of Crime Assistance Tribunal [2007] VCAT 971 (13 June 2007) [37]; Rajah v Victims of Crime Assistance Tribunal [2002] VCAT 1422 (6 December 2002) [17].

    ↑

29. Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2.

    ↑

30. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 17, 171. See also BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [16].

    ↑

31. See, eg, J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [48]; FG v Victims of Crime Assistance Tribunal [2011] VCAT 2449 (1 September 2011) [34].

    ↑

32. J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [48].

    ↑

33. Victims of Crime Assistance Act 1996 (Vic) s 31.

    ↑

34. Department of Justice and Regulation (Vic), A Victorian Redress Scheme for Institutional Child Abuse, Public Consultation Paper
    
    (5 August 2015) 18, 34.

    ↑

35. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) 375.

    ↑

36. Ibid 376.

    ↑

37. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 43; Victims Rights and Support Act 2013 (NSW) s 39(2)(a); Victims of Crime Assistance Act 2009 (Qld) ss 78–80, 82, 85; Victims of Crime Assistance Act 1976 (Tas) s 5(2); Victims of Crime Act 2001 (SA) s 22; Criminal Injuries Compensation Act 2003 (WA) s 3. However, the SA scheme requires the offence to have been admitted or proved ‘beyond reasonable doubt’ in proceedings before a court, or admitted in statutory proceedings related to the offence, or that the offence can be reasonably inferred from any admissions made in such proceedings, with limited exceptions: Victims of Crime Act 2001 (SA) ss 22(2)–(3), 27. The WA scheme requires the offender to have been convicted or acquitted of the offence, with some limited exceptions: Criminal Injuries Compensation Act 2003 (WA) ss 12–17.

    ↑

38. Victims of Crime Assistance Act 1996 (Vic) s 26(1)(b).

    ↑

39. Victims of Crime Assistance Tribunal, Guide to Completing the Application for Assistance Form (2016) 5.

    ↑

40. Victims of Crime Assistance Tribunal, Medical Expenses (26 September 2016) <www.vocat.vic.gov.au/assistance-available/financial-assistance-available/medical-expenses>.

    ↑

41. Table information source: Victims of Crime Assistance Tribunal, Determining an Application— Supporting Documentation (2016)
    
    <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

    ↑

42. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2014, Awards for Counselling Expenses, 1 July 2014, Form 4.

    ↑

43. Ibid, Forms 1–3.

    ↑

44. Victims of Crime Assistance Act 1996 (Vic) s 26(2).

    ↑

45. Ibid s 26(1)(c).

    ↑

46. Ibid ss 37, 39, 40.

    ↑

47. Victims of Crime Assistance Tribunal, Application for Assistance Form (2016) 15.

    ↑

48. Victims of Crime Assistance Tribunal, Determining an Application—Supporting Documentation (2016)
    
    <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

    ↑

49. Ibid.

    ↑

50. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper
    
    (Whittlesea Community Connections, 2011) 76.

    ↑

51. Ibid.

    ↑

52. Victims of Crime Assistance Tribunal, Determining an Application—Supporting Documentation (2016)
    
    <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

    ↑

53. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 140.

    ↑

54. Ibid.

    ↑

55. Ibid; Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 24.

    ↑

56. Submission 41 (Springvale Monash Legal Service). See also submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

    ↑

57. Submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 9 (Victims’ Representatives—Victims of Crime Consultative Committee).

    ↑

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

    ↑

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

    ↑

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

    ↑

61. Ibid.

    ↑

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

    ↑

63. Submission 37 (safe steps Family Violence Response Centre); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

    ↑

64. Submissions 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

    ↑

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

    ↑

66. Submission 41 (Springvale Monash Legal Service).

    ↑

67. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultations 11 (Regional Consultation —Victoria Legal Aid—Gippsland), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 9 (Domestic Violence Victoria Members), 12 (Regional Consultation—Mildura Victim Support Agencies), 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

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

    ↑

69. Submission 14 (Inner Melbourne Community Legal).

    ↑

70. Submission 36 (Name withheld).

    ↑

71. Ibid.

    ↑

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

    ↑

73. Submission 14 (Inner Melbourne Community Legal); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

    ↑

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

    ↑

75. Ibid.

    ↑

76. Ibid.

    ↑

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

    ↑

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

    ↑

79. See, eg, submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

    ↑

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

    ↑

81. Department of Justice (NSW), Recognition Payments (4 May 2018) <www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_financial_support/vs_recognitionpayment.aspx>.

    ↑

82. Victims of Crime Commissioner, ACT Human Rights Commission, ACT Financial Assistance Scheme, Primary Victim Application Form (accessed 31 May 2018) <www.victimsupport.act.gov.au/__data/assets/pdf_file/0009/1078938/Primary-Victim-application-form.pdf>.

    ↑

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

    ↑

84. Submission 14 (Inner Melbourne Community Legal).

    ↑

85. Submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service); Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

    ↑

86. Victims of Crime Commissioner, ACT Human Rights Commission, ACT Financial Assistance Scheme, Primary Victim Application Form (accessed 31 May 2018) <www.victimsupport.act.gov.au/__data/assets/pdf_file/0009/1078938/Primary-Victim-application-form.pdf>.

    ↑

87. Department of Justice (NSW), Recognition Payments (4 May 2018) <www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_financial_support/vs_recognitionpayment.aspx>.

    ↑

88. Submission 14 (Inner Melbourne Community Legal).

    ↑

89. Ibid.

    ↑

90. See Victims of Crime Assistance Act 1996 (Vic) ss 26, 55(2).

    ↑

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

    ↑

92. Victims of Crime Assistance Tribunal, Determining an Application—Supporting Documentation (2016) <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

    ↑

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

    ↑

94. Victims of Crime Assistance Act 1996 (Vic) s 65(1).

    ↑

95. Ibid s 65(2).

    ↑

96. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 246. Once VOCAT receives a subpoena, victims may or may not be notified that their records have been requested: Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2015—Access to Files, 1 April 2015, 4.

    ↑

97. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247. VOCAT has published a Practice Direction which provides information about serving a subpoena on VOCAT and how VOCAT responds to subpoenas: Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2015—Access to Files, 1 April 2015, 3–4.

    ↑

98. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247.

    ↑

99. Ibid (Recommendation 51).

    ↑

100. Ibid 247.

     ↑

101. Ibid.

     ↑

102. Victims of Crime Assistance Act 1996 (Vic) s 42A(1).

     ↑

103. Ibid s 42A(2)(a).

     ↑

104. Ibid s 42A(2)(b).

     ↑

105. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2015—Access to Files, 1 April 2015. The Practice Direction states that ‘Parties, non-parties (including media representatives), persons with a substantial interest or alleged offenders may request access to information and/or documents contained on a file’: at 1.

     ↑

106. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247.

     ↑

107. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2015—Access to Files, 1 April 2015.

     ↑

108. Ibid. The Commission notes that it is for the court to determine whether proceedings should be conducted in closed court for the purposes of determining whether to admit such evidence.

     ↑

109. Victims of Crime Assistance Act 1996 (Vic) ss 43(1), 43(3).

     ↑

110. Ibid s 43(1)(a).

     ↑

111. Ibid s 43(1)(b).

     ↑

112. Ibid s 43(1)(c).

     ↑

113. The penalty is 100 penalty units or imprisonment for two years for a natural person and 500 penalty units for a body corporate: ibid
     
     s 43(3).

     ↑

114. Victims of Crime Assistance Act 1996 (Vic) s 43(1).

     ↑

115. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 163.

     ↑

116. Submission 43 (knowmore). See also submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

117. Submission 43 (knowmore). See also submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

118. Submission 43 (knowmore). See also Submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

119. Submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program); Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

120. Submission 3 (Director of Public Prosecutions Victoria).

     ↑

121. Ibid.

     ↑

122. Submission 43 (knowmore)

     ↑

123. Ibid.

     ↑

124. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 49 (Victims of Crime Commissioner, Victoria); Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

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

     ↑

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

     ↑

127. Submission 15 (Merri Health Victims Assistance Program). See also submission 14 (Inner Melbourne Community Legal).

     ↑

128. Submissions 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program).

     ↑

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

     ↑

130. Ibid.

     ↑

131. Submission 41 (Springvale Monash Legal Service); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

132. Submissions 27 (Name withheld), 41 (Springvale Monash Legal Service).

     ↑

133. Submission 43 (knowmore).

     ↑

134. Ibid.

     ↑

135. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

137. Ibid. In its 2016–17 Annual Report, VOCAT states that VOCAT’s Coordinating Committee reviewed VOCAT’s Practice Direction regarding access to VOCAT materials ‘in light of Associate Justice Lansdowne’s decision requiring the Tribunal to make an order to allow publication of material for every subpoena and the impact that this would likely have on the Tribunal’s workload’: Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 43. However, the Annual Report does not provide details of the outcome of this review.

     ↑

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

     ↑

139. Submission 43 (knowmore). See also submissions 3 (Director of Public Prosecutions Victoria), 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 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 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

140. Submission 43 (knowmore). See also submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

141. Submission 3 (Director of Public Prosecutions Victoria).

     ↑

142. Submission 43 (knowmore). See also submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

143. Victims of Crime Assistance Act 1996 (Vic) s 2(a).

     ↑

144. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) (Recommendations 50 and 51).

     ↑

145. Ibid (Recommendation 51).

     ↑

146. Victims Rights and Support Act 2013 (NSW) s 113. See also Victims of Crime Assistance Act (NT) s 64.

     ↑

147. Victims Rights and Support Act 2013 (NSW) s 113(3).

     ↑

148. Submission 43 (knowmore).

     ↑

149. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

151. Frank Vincent AO QC, Open Courts Act Review (September 2017) 14.

     ↑

152. Ibid.

     ↑

153. Ibid.

     ↑

154. Victims of Crime Assistance Act 1976 (Tas) s 8.

     ↑

155. Ibid ss 8(1)–(2).

     ↑

156. Criminal Injuries Compensation Act 2003 (WA) s 64(2).

     ↑

157. Ibid s 64(3).

     ↑

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

     ↑

159. Victims of Crime Assistance Act 1996 (Vic) s 29(1). For applications by related victims or a person who has incurred funeral expenses, the application must be made within two years after the death of the primary victim.

     ↑

160. Victims of Crime Assistance Act 1996 (Vic) s 29(2).

     ↑

161. Ibid s 29(1A).

     ↑

162. Ibid s 29(4).

     ↑

163. Victims of Crime Assistance Tribunal, Practice Direction No 2 of 2016—Extension of Time for Lodgement (30 April 2016)
     
     <www.vocat.vic.gov.au/practice-direction-2-2016-extension-time-lodgement>.

     ↑

164. Victims of Crime Assistance Tribunal, Application for Extension of Time Form (2016) <www.vocat.vic.gov.au/application-extension-time-form>.

     ↑

165. Ibid.

     ↑

166. Victims of Crime Assistance Act 1996 (Vic) s 29(3).

     ↑

167. ‘Intellectually disabled’ within the meaning of the Disability Act 2006 (Vic).

     ↑

168. ‘Mentally ill’ within the meaning of the Mental Health Act 2014 (Vic).

     ↑

169. Victims of Crime Assistance Act 1996 (Vic) s 29(3)(g).

     ↑

170. See, eg, BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017); J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002).

     ↑

171. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [11]. This decision was upheld on appeal to the Supreme Court: BFK v VOCAT [2017] VSC 736.

     ↑

172. Victims of Crime Assistance Act 1996 (Vic) s 29(1A), inserted by the Justice Legislation Amendment (Victims) Act 2018 (Vic) s 37. This amendment commenced on 5 April 2018.

     ↑

173. Victims of Crime Assistance Act 1996 (Vic) s 29(1A).

     ↑

174. [2002] VCAT 1257 (7 November 2002).

     ↑

175. S v Victims of Crime Assistance Tribunal [2002] VCAT 1257 (7 November 2002) [22].

     ↑

176. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 78–9.

     ↑

177. Recent research by the Royal Commission into Institutional Responses to Child Sexual Abuse found that for victims aged approximately 11 years at the time of alleged sexual abuse, the average time taken to make a complaint to the Catholic Church was 33 years: Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. See also Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services, Final Report (2016) 59, discussing reasons why victims with disability may face barriers to reporting abuse.

     ↑

178. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017).

     ↑

179. Ibid.

     ↑

180. Ibid [117]. This decision was upheld on appeal to the Supreme Court: BFK v VOCAT [2017] VSC 736.

     ↑

181. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [121].

     ↑

182. See, eg, Angela Dwyer, ‘Policing Lesbian, Gay, Bisexual and Transgender Young People: A Gap in the Research Literature’ (2011) 22(3) Current Issues in Criminal Justice 415, 416, discussing the unwillingness to report to police among LGBTIQ victims of crime. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6, discussing the unwillingness to involve authorities among LGBTIQ victims of family violence. See also Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 11, discussing the unwillingness to report to police among Aboriginal and Torres Strait Islander victims of crime.

     ↑

183. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 79.

     ↑

184. [2017] VCAT 289 (15 March 2017).

     ↑

185. Ibid [12].

     ↑

186. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 104–5.

     ↑

187. Submissions 15 (Merri Health Victims Assistance Program), 49 (Victims of Crime Commissioner, Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals), 19 (RMIT Centre for Innovative Justice).

     ↑

188. Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 7 (Family Violence and Advocacy Organisations), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

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

     ↑

190. Submissions 3 (Director of Public Prosecutions Victoria), 8 (Victim Survivors’ Advisory Council), 27 (Name withheld), 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers), 54 (Victorian Gay and Lesbian Rights Lobby), 58 (Judicial Advisory Group on Family Violence Supplementary Submission); Consultations 3 (Legal Professionals—Community Legal Centres), 10 (Regional Consultation—Morwell Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

191. Submission 15 (Merri Health Victims Assistance Program). See also consultation 4 (Victim, Witness and Court Support).

     ↑

192. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

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

     ↑

195. Consultation 19 (RMIT Centre for Innovative Justice).

     ↑

196. Submission 8 (Victim Survivors’ Advisory Council); Consultation 9 (Domestic Violence Victoria Members). See also submissions 58 (Judicial Advisory Group on Family Violence Supplementary Submission), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

197. Submission 41 (Springvale Monash Legal Service). See also submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

     ↑

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

     ↑

199. Consultation 6 (Victims’ Advocacy Organisations).

     ↑

200. Consultations 4 (Victim, Witness and Court Support). See also Submissions 3 (Director of Public Prosecutions Victoria), 15 (Merri Health Victims Assistance Program), 30 (CASA Forum); Consultations 10 (Regional Consultation—Morwell Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

201. Submissions 38 (Ryan Carlisle Thomas Lawyers), 43 (knowmore).

     ↑

202. 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 3 (Legal Professionals—Community Legal Centres).

     ↑

203. Submission 3 (Director of Public Prosecutions Victoria); Consultations 4 (Victim, Witness and Court Support), 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

204. Submission 3 (Director of Public Prosecutions Victoria).

     ↑

205. Submission 35 (Brockway Legal)—the submission proposed that the time limit could commence from either the date of the act of violence or the date when any related criminal proceedings end, whichever is later; Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

206. Submissions 35 (Brockway Legal), 49 (Victims of Crime Commissioner, Victoria).

     ↑

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

     ↑

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

     ↑

209. Submissions 5 (Anglicare Victoria Victims Assistance Program), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria).

     ↑

210. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 14 (Inner Melbourne Community Legal), 17 (Centre for Excellence in Child and Family Welfare), 18 (cohealth), 41 (Springvale Monash Legal Service); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

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

     ↑

212. Submissions 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 30 (CASA Forum), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 43 (knowmore); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

213. Submissions 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

214. Submissions 15 (Merri Health Victims Assistance Program), 19 (Schembri & Co Lawyers), 26 (Hume Riverina Community Legal Service), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

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

     ↑

216. Submission 51 (Law Institute of Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

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

     ↑

218. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 10 (Eastern Metropolitan Regional Family Violence Partnership); Consultation 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

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

     ↑

220. Submissions 15 (Merri Health Victims Assistance Program), 41 (Springvale Monash Legal Service); Consultations 4 (Victim, Witness and Court Support), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 19 (RMIT Centre for Innovative Justice).

     ↑

221. Consultation 7 (Family Violence and Advocacy Organisations).

     ↑

222. Consultation 19 (RMIT Centre for Innovative Justice). See also submission 18 (cohealth).

     ↑

223. Submission 41 (Springvale Monash Legal Service).

     ↑

224. Submissions 14 (Inner Melbourne Community Legal), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service), 51 (Law Institute of Victoria); Consultations 10 (Domestic Violence Victoria Members), 12 (Regional Consultation—Mildura Victim Support Agencies).

     ↑

225. Consultation 9 (Domestic Violence Victoria Members).

     ↑

226. Consultation 10 (Regional Consultation—Morwell Victim Support Agencies). See also submission 17 (Centre for Excellence in Child and Family Welfare).

     ↑

227. Submissions 8 (Victim Survivors’ Advisory Council), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultation 9 (Domestic Violence Victoria Members). See also submission 14 (Inner Melbourne Community Legal).

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228. Consultation 10 (Domestic Violence Victoria Members).

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

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230. Ibid

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231. Submissions 3 (Director of Public Prosecutions Victoria), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

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232. Submissions 51 (Law Institute of Victoria), 41 (Springvale Monash Legal Service).

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233. Submission 41 (Springvale Monash Legal Service).

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

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235. Submissions 18 (cohealth), 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore).

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236. Submission 30 (CASA Forum)

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237. Ibid.

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

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239. Ibid.

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240. Ibid.

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241. Submission 14 (Inner Melbourne Community Legal).

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242. Submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 41 (Springvale Monash Legal Service) and 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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243. The Commission notes that some of these proposed factors already fall within the factors under s 29(3) of the VOCAA.

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244. Submissions 1 (Judicial Advisory Group on Family Violence), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 22 (YourLawyer), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 2 (Legal Professionals—Private Practice).

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245. Submission 14 (Inner Melbourne Community Legal).

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246. Ibid.

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

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248. Submission 38 (Ryan Carlisle Thomas Lawyers).

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249. Submission 14 (Inner Melbourne Community Legal).

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250. Submission 18 (cohealth).

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251. Submission 19 (Schembri & Co Lawyers).

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252. Submission 22 (YourLawyer).

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253. Submission 35 (Brockway Legal).

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

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

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256. Submission 9 (Alannah & Madeline Foundation).

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

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258. Submissions 38 (Ryan Carlisle Thomas Lawyers), 49 (Victims of Crime Commissioner, Victoria).

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259. Submission 41 (Springvale Monash Legal Service).

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260. Submissions 5 (Anglicare Victoria Victims Assistance Program). See also submission 13 (Adviceline Injury Lawyers).

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261. Submissions 14 (Inner Melbourne Community Legal). See also submissions 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

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262. Submission 41 (Springvale Monash Legal Service).

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263. Ibid.

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264. Ibid.

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

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266. Submissions 38 (Ryan Carlisle Thomas Lawyers), 51 (Law Institute of Victoria).

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267. See, eg, submission 18 (cohealth); Consultations 4 (Victim, Witness and Court Support), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

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268. Submissions 3 (Director of Public Prosecutions Victoria), 8 (Victim Survivors’ Advisory Council), 27 (Name withheld), 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers); Consultations 3 (Legal Professionals—Community Legal Centres), 10 (Regional Consultation—Morwell Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

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269. Consultation 4 (Victim, Witness and Court Support). See also submissions 3 (Director of Public Prosecutions Victoria), 15 (Merri Health Victims Assistance Program), 30 (CASA Forum); Consultations 10 (Regional Consultation—Morwell Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

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270. A three-year time limit applies in the Australian Capital Territory, Queensland, South Australia, Tasmania and Western Australia. In New South Wales, a general time limit of two years applies, with exceptions for certain victims, including a 10-year time limit for victims of domestic violence, child abuse or sexual assault and no time limit for a child victim of a sexual offence. In the Northern Territory, a two-year general time limit also applies with an extension being possible in certain circumstances, including where the injury or death occurred as a result of sexual assault, domestic violence or child abuse.

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271. Submissions 13 (Adviceline Injury Lawyers), 38 (Ryan Carlisle Thomas Lawyers); Consultation 3 (Legal Professionals—Community Legal Centres).

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272. Submissions 14 (Inner Melbourne Community Legal), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service), 51 (Law Institute of Victoria); Consultations 9 (Domestic Violence Victoria Members), 12 (Regional Consultation—Mildura Victim Support Agencies).

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273. Victims Rights and Support Act 2013 (NSW) s 40(5).

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274. Submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission). The submission stated that no time limit should apply for institutional abuse.

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275. The Child Wellbeing and Safety Act 2005 (Vic) s 3(1) defines ‘child abuse’ as including a) any act committed against a child involving a sexual offence, or an offence under section 49M(1) (grooming for sexual conduct with a child under the age of 16 of the Crimes Act 1958 (Vic); and b) the infliction on a child of physical violence, or serious emotional, or psychological, harm; and c) the serious neglect of a child.

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276. See submissions 8 (Victim Survivors’ Advisory Council), 9 (Alannah & Madeline Foundation), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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

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278. Submission 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).

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279. See submission 14 (Inner Melbourne Community Legal). See also submission 18 (cohealth).

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280. Submission 14 (Inner Melbourne Community Legal).

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281. Australian Institute of Criminology, Australian Government, Homeless People: Their Risk of Victimisation, AICrime Reduction Matters No 66 (2008) <https://aic.gov.au/publications/crm/crm066>.

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282. Submission 3 (Director of Public Prosecutions Victoria).

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283. See Victims of Crime Assistance Act 1996 (Vic) s 32(3).

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284. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 103.

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285. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 36.

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286. Submissions 41 (Springvale Monash Legal Service), 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

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287. See submission 58 (Judicial Advisory Group on Family Violence Supplementary Submission).

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288. See ibid.

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289. Submissions 15 (Merri Health Victims Assistance Program), 41 (Springvale Monash Legal Service); Consultations 4 (Victim, Witness and Court Support), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 19 (RMIT Centre for Innovative Justice).

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