Victims of Crime Assistance Act 1996: Report (html)

15. Decision making under the proposed Act for victims of crime financial assistance

Introduction

15.1 This chapter considers and makes recommendations about the processes for decision making under the proposed Act, including:

• applicant reporting requirements, including requirements to report a matter to police or other professionals

• consideration of an applicant’s character, conduct or behaviour in determining whether to make an award, or in determining the amount of an award

• the timeliness and transparency of decision making under the proposed Act.

15.2 The recommendations in this chapter aim to ensure that under the proposed Act:

• the scheme decision maker has discretion to consider appropriate factors in the making of awards, while minimising barriers to assistance for victims of crime in accordance with the purpose of the proposed Act^[1]

• there is clarity for both victims and the scheme decision maker regarding timeframes for decision making

• there is transparency in decision making.

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

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

• the VOCAA recognises the appropriate people as victims

• the tests for eligibility and the evidence required to meet tests can be simplified

• the VOCAA’s definitions account for circumstances, like family violence, that might result in a delay in reporting a crime

• there are any processes, procedures or requirements under the VOCAA that cause unnecessary delay in the provision of assistance to victims of crime.

Factors to be considered by the scheme decision maker when determining an application

15.4 This part of the chapter considers factors to be considered by the scheme decision maker under the proposed state-funded financial assistance scheme (the proposed scheme) when making an award under the proposed Act.

15.5 The Commission’s first and supplementary consultation papers identified concerns about sections 52 and 54 of the VOCAA which relate to the current factors the Victims of Crime Assistance Tribunal (VOCAT) is required to consider when determining an application.

15.6 This part of the chapter outlines the current law, and views of the community and stakeholders on the current provisions, and makes recommendations in relation to the factors that should be considered in determining an application under the proposed Act.

Current law

15.7 VOCAT may award financial assistance to a victim of crime where it is satisfied that an act of violence has occurred, that the applicant is a victim of that act of violence, and that the applicant is eligible to receive the assistance.^[2]

15.8 However, even if VOCAT determines that a victim is eligible for an award, sections 52 and 54 require VOCAT to consider a number of other factors relating to a victim’s character and behaviour before, during and after a crime, which may result in the refusal, or reduction, of an award.^[3]

15.9 These considerations are broad and may be unrelated to the criminal act the subject of the application. The current application of sections 52 and 54 is outlined further below.

Mandatory refusal of an award under section 52 of the VOCAA

15.10 Under section 52 there are two circumstances where VOCAT must refuse to make an award of assistance:^[4]

• if it is satisfied the application has been made in collusion with the perpetrator of the act of violence

• if an earlier application for assistance has been made by the applicant from the same act of violence.

15.11 These provisions were not raised as problematic in either the first or supplementary consultation papers, in literature, case law, in written submissions or during consultation meetings. Accordingly, this part of the report focuses on two further circumstances where VOCAT must refuse to make an award of assistance, unless there are special circumstances. These are if VOCAT is satisfied that:^[5]

• an act of violence was not reported to police within a reasonable time

• the applicant failed to provide reasonable assistance to any person or body engaged in the investigation, arrest or prosecution of the perpetrator (the investigatory or prosecutorial body).

Act of violence not reported to police within a reasonable time

15.12 In determining whether an act of violence was reported to police within a reasonable time, section 53 provides that VOCAT ‘may have regard to any matters that it considers relevant’ including:^[6]

• the age of the victim at the time of the act of violence

• whether the victim has an intellectual disability, within the meaning of the Disability Act 2006 (Vic)

• whether the victim has a mental illness, within the meaning of the Mental Health Act 2014 (Vic)

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

• whether the victim was threatened or intimidated by the perpetrator

• the nature of the victim’s injury.

15.13 The case law varies in its interpretation of what constitutes a reasonable time for reporting, as well as what might result in special circumstances mitigating an unreasonable delay.

15.14 In J v Victims of Crime Assistance Tribunal,^[7] the Victorian Civil and Administrative Tribunal (VCAT) held that a delay of approximately 35 years in reporting alleged sexual abuse to police was reasonable given the circumstances of the case. In making this finding, VCAT considered the way sexual assault was viewed at the time of the offences and the power dynamics in the family relationship.^[8]

15.15 In S v Victims of Crime Assistance Tribunal,^[9] VCAT determined the applicant had not reported the alleged rape to police within a reasonable time despite the victim’s admission that she did not report to police at the time (22 years earlier, when she was 17 years old) because she did not know what to do, was frightened and ashamed, felt dirty and was scared of the perpetrators.^[10]

15.16 Where VOCAT determines that a report was not made to police within a reasonable time, section 52 enables VOCAT to consider any special circumstances that may have brought about that delay. The phrase ‘special circumstances’ is not defined in the VOCAA. However, VCAT has found that for the purposes of section 52, special circumstances must be something out of the ordinary.^[11]

15.17 Case law raises some uncertainty about what might constitute special circumstances. For example, in cases of child sexual abuse, a victim’s age at the time of the offence has previously been interpreted as constituting special circumstances mitigating an unreasonable delay in reporting to police.^[12] However, for some other types of crime, the factors that may give rise to a finding of special circumstances are less clear. In TUN v Victims of Crime Assistance Tribunal,^[13] VOCAT refused an application for assistance as the applicant had not made a report to police. The application related to an alleged assault and threat to kill by the applicant’s former de facto partner. While VCAT did ultimately overturn VOCAT’s decision, and found that special circumstances did exist, VCAT also distinguished the applicant’s experience from ‘others faced with domestic violence’. VCAT only held that special circumstances existed in that case because of the criminal profile of the applicant’s former partner, who was a member of a motorcycle gang with seven convictions for manslaughter.

15.18 The requirement that something be out of the ordinary^[14] for it to constitute special circumstances can create barriers in particular for victims of family violence and sexual assault—because although such acts may be common, they often have unique dynamics and characteristics that create additional barriers to reporting.^[15]

15.19 Further complicating considerations under section 52(a)(i) are circumstances that raise questions of whether the act of violence was in fact reported to police at all, for example where police may have been told about an incident or attended the scene but no official police record was made.^[16] Case law indicates that ‘what constitutes a report to police must depend on the circumstance of each particular case’,^[17] which raises some uncertainty.

Failure to provide reasonable assistance to an investigatory or prosecutorial body

15.20 Except where there are special circumstances, the failure to provide reasonable assistance to an investigatory or prosecutorial body requires VOCAT to refuse an application for financial assistance.^[18]

15.21 However, unlike the ‘failure to report’ provisions, the VOCAA does not provide any further guidance about what VOCAT should have regard to in considering whether there are special circumstances.

15.22 In addition, under section 52(a)(ii), there are no prescribed positive actions a victim must perform to satisfy ‘reasonable assistance’, such as providing a witness statement or participating in a criminal trial. However, guidance in the VOCAT application form suggests a victim must do more than call police:

In most cases, calling the police to attend the scene of a crime is not enough. You should make a formal report, including a sworn statement (if requested), so the police can fully investigate the matter. You should give the Tribunal full details of the relevant police officer’s station, rank and registration number.^[19]

15.23 Case law in relation to what constitutes ‘reasonable assistance’ varies.

15.24 In Rajah v Victims of Crime Assistance Tribunal,^[20] VCAT found the existence of special circumstances to mitigate what might otherwise be viewed as failure to assist the police—not providing a written statement to police. In that case, the applicant was a victim of sexual and physical abuse by her mother’s former de facto partner and the circumstances of the offending and the vulnerability of the victim were accepted as giving rise to special circumstances.^[21]

15.25 In Nichol v Victims of Crime Assistance Tribunal,^[22] the applicant assisted police in the initial stages of their investigation but the day before a court hearing she withdrew the complaint. VCAT held that, although the applicant had rendered appropriate assistance in the initial stages of the police investigation, by later withdrawing her complaint, she had not rendered reasonable assistance for the purposes of section 52 of the VOCAA. Accordingly, VCAT refused the application, finding the applicant had ‘pulled the rug out from under the police at the last minute’.^[23]

15.26 In Gray v Victims of Crimes Assistance Tribunal,^[24] the 16-year-old applicant had been stabbed at a train station. VOCAT denied his application for failure to cooperate with police because he had refused to give police a statement immediately after the stabbing, although he did give a statement months later. VCAT overturned VOCAT’s decision on the basis the applicant had provided reasonable, although delayed, assistance.

Additional factors VOCAT must consider under s 54 of the VOCAA

15.27 Once VOCAT has determined that an act of violence has occurred, that the applicant is a victim eligible for assistance, and that there are no circumstances giving rise to mandatory refusal under section 52, section 54 of the VOCAA requires VOCAT to consider a number of additional matters before determining whether or not to make an award, or in determining the amount of the award. These include, relevantly:

(a) the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence^[25]

…

(c) whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation^[26]

(d) any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death^[27]

(e) whether the person by whom the act of violence was committed will benefit directly or indirectly from the award^[28]

(f) any other circumstances that it considers relevant.^[29]

15.28 Current law in relation to these provisions is discussed below.

Character, behaviour and attitude of applicant

15.29 Section 54(a) of the VOCAA which requires VOCAT to have regard to the character, behaviour and attitude of an applicant ‘at any time’ is broad. The VOCAA explicitly provides for consideration of past criminal activity^[30] but section 54(a) is much broader, given it enables VOCAT to consider the character, behaviour or attitude of the victim ‘at any time’.^[31]

15.30 Analysis of case law shows that in practice section 54 has been used to scrutinise a VOCAT applicant’s past criminal activity^[32] as well as an applicant’s drug and alcohol use.^[33] In the case of drug and alcohol use, VOCAT’s consideration of these factors is significant. The VOCAA does not make consideration of drug and alcohol use mandatory, however, such considerations fall within the broad consideration of an applicant’s character and behaviour ‘at any time’.^[34]

15.31 These considerations intersect with VOCAT’s consideration of one of the objectives of the VOCAA—to pay certain victims of crime financial assistance (including special financial assistance) ‘as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.^[35]

15.32 Together, the section 54 considerations and the objective in section 1(2)(b) of the VOCAA can result in consideration of who is ‘deserving’ of recognition and sympathy.^[36]

15.33 For example, in RUM v Victims of Crime Assistance Tribunal,^[37] VCAT considered the fact that the applicant was a serious sex offender, lacking in remorse and insight in relation to his offending. VCAT determined not to award financial assistance, because the objectives of the VOCAA ‘require consideration of whether an applicant is an appropriate recipient of a symbolic expression by the state of the community’s sympathy’.^[38]

15.34 A similar rationale can be seen in White v Victims of Crime Assistance Tribunal,^[39] where VCAT upheld VOCAT’s decision not to award special financial assistance because of the applicant’s past criminal history, indicating such an award would ‘offend the conscience of the people of Victoria’.^[40]

15.35 Similarly, in TNX v Victims of Crime Assistance Tribunal,^[41] VCAT considered the applicant’s prior convictions for causing serious injuries, his failure to render assistance at the time of the offences and the limited remorse shown by him in relation to his offending behaviour. Taking into account all those circumstances, VCAT determined it was appropriate to reduce the amount of special financial assistance.^[42]

15.36 In Nguyen v Victims of Crime Assistance Tribunal,^[43] VCAT determined that despite the applicant’s criminal history, it was appropriate to make a ‘modest’ award for medical expenses and clothing replacement, given the applicant’s prior offences did not involve violence and the application was only for expenses incurred.

15.37 More recently in CZG v Victims of Crime Assistance Tribunal,^[44] VCAT considered the applicant’s past criminal offending, as well as contributory conduct under section 54, determining that:

While many in the community would no doubt feel compassion for him, as I do, the applicant is not an appropriate recipient of an award of assistance … His own violent criminal conduct combined with his direct contribution to the events leading up to the act of violence have disqualified him.^[45]

15.38 In CZG v Victims of Crime Assistance Tribunal,^[46] VCAT considered ‘factors which may lead to a decision in favour of [an] applicant despite a serious criminal history’, suggesting demonstration of attempted rehabilitation and bravery^[47] may lead to a decision in favour of an applicant.^[48]

Whether the applicant provoked the commission of the act of violence and any condition or disposition of the applicant

15.39 In determining whether to award financial assistance or how much to award, section 54 of the VOCAA requires VOCAT to consider:

• ‘whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation’^[49]

• ‘any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death’.^[50]

15.40 Together, these are sometimes referred to as ‘contributory conduct’ or ‘provocation’ clauses.^[51] Some commentary suggests these provisions relate to ‘the extent to which the applicant was the author of their misfortune’.^[52] This interpretation is evident in the recent case of CZG v Victims of Crime Assistance Tribunal,^[53] where VCAT determined that the applicant ‘had a direct involvement in the sequence of events that led to the act of violence’ and ‘escalated the conflict by making a threat to kill his former girlfriend, and making a threat to kill her acquaintance’.^[54]

15.41 As with consideration of an applicant’s character, behaviour and attitude, case law also demonstrates an intersection between consideration of provocation and the VOCAA objective regarding paying certain victims of crime financial assistance ‘as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.^[55]

15.42 In Fallon v Victims of Crime Assistance Tribunal,^[56] VCAT affirmed VOCAT’s decision to deny the applicant assistance due to ‘inflammatory words’ uttered by the victim which were found to have ‘set in motion the chain of events’.^[57] Given the victim’s ‘provocative’ actions, VCAT determined that the incident did not ‘give rise to circumstances where there should be any expression, symbolic or otherwise, by “the State of the community’s sympathy and condolence”’.^[58]

15.43 In Mendez v Victims of Crime Assistance Tribunal,^[59] which involved family violence, both VOCAT and VCAT determined the applicant had provoked the assault, although VCAT ultimately determined the applicant’s provocation was outweighed by the actions of the perpetrator which resulted in a charge for intentionally cause serious injury.^[60]

Perpetrator benefit

15.44 In determining whether to make an award or the amount of an award, VOCAT must also consider whether the alleged perpetrator will benefit directly or indirectly from the award.^[61]

15.45 The VOCAA provides no guidance about what might be considered a direct or indirect benefit to a perpetrator, and the Commission has found no case law in relation to this matter. However, as discussed in the Commission’s first consultation paper, some concerns have been raised in academic literature that the perpetrator benefit provision unfairly prejudices some classes of victim, particularly victims of family violence who may have an ongoing relationship with the perpetrator.^[62]

Responses

Requirement to report to police

15.46 Some stakeholders told the Commission that the requirement to report to police is a ‘troubling obligation’ as it sends a message to victims of crime that the state will only assist victims if they ‘work’ for the state, perpetuating notions of ‘deserving’ and undeserving victims.^[63] The Victorian Council of Social Service also submitted that such provisions place an ‘unreasonable burden’ on victims of family violence or sexual assault.^[64]

15.47 A number of specific practical and structural barriers to reporting were also raised by stakeholders, including concerns relating to:

• misunderstandings about what amounts to a report to police, as well as barriers to getting the police to take an official report^[65]

• the dynamics of certain crimes, such as family violence and sexual assault, affecting victims’ ability to report to police^[66]

• vulnerabilities of diverse communities, creating barriers to reporting to police^[67]

• challenges for some victims in relation to reporting to police within ‘reasonable time’^[68]

• safety and wellbeing concerns for victims as a result of reporting to police.^[69]

15.48 From a practical perspective, some stakeholders said that the definition of reporting to police is unclear^[70] and that misunderstandings can arise where a victim may have called 000, or police have attended an incident, but no official report or statement is made.^[71] The Commission was also told that where a Family Violence Intervention Order (FVIO) is issued, but no report is made to police, victims may mistakenly consider the FVIO to be a police report.^[72]

15.49 Some stakeholders said that victims can face barriers in getting police to take a formal statement. The Commission was told by some legal professionals that victims can be advised by police there is nothing the police can do about a complaint, or that the relevant police officer is not available to take the report.^[73] Inner Melbourne Community Legal submitted that appointments with police are sometimes cancelled^[74] and lawyers and victim support workers said that in some cases, police have simply refused to take statements,^[75] particularly in relation to historical family violence matters.^[76]

15.50 Some stakeholders said that there are specific barriers to reporting to police for particular victims, whether because of a particular crime type or because of a victim’s individual circumstances or vulnerabilities. A number of concerns were raised in relation to family violence victims because the dynamics of family violence often mean victims will not make a report to police^[77] for a range of reasons, including:

• shame and stigma^[78]

• fear of the perpetrator,^[79] including fears for their own safety or the safety of their children^[80]

• concern they will not be believed^[81]

• previous history/trauma relating to police interactions,^[82] fear of police or authority,^[83] and concerns about being pursued as an offender about unrelated criminal matters^[84]

• because they do not want a prosecution pursued^[85]

• because they do not recognise the family violence as violence^[86]

• cultural barriers^[87]

• wanting to keep the family together.^[88]

15.51 Some stakeholders said that victims who are less likely to report to police are often the most vulnerable members of our community.^[89] The Commission was told that intersectional factors, combined with the dynamics of family violence, may prevent victims from marginalised communities engaging with police.^[90] Such factors act as particular barriers for:

• Aboriginal and/or Torres Strait Islander women^[91]

• women from culturally and linguistically diverse backgrounds^[92]

• women working in the sex industry^[93]

• women with disabilities^[94]

• people from LGBTIQ communities^[95]

• women living in rural or remote areas.^[96]

15.52 Stakeholders submitted that Aboriginal women in particular may not report family violence to police because of:

• the history of police interaction with Aboriginal people since colonisation^[97]

• discriminatory police responses to Aboriginal women, including police disbelieving Aboriginal women, minimising or trivialising their experiences or labelling family violence as reciprocal^[98]

• concerns about child protection becoming involved, given the over-representation of Aboriginal children in out-of-home care.^[99]

15.53 In addition, knowmore submitted to the Commission that survivors of institutional child sexual abuse are often unwilling to report to police because of a lack of trust of police, negative interactions with police or authorities, shame, guilt, fear of not being believed, as well as fear of reprisals from the perpetrator.^[100]

15.54 Some stakeholders submitted to the Commission that not reporting to police may be part of a victim’s safety plan^[101] or may be an active choice by victims to prioritise their wellbeing and recovery.^[102] In this context, knowmore submitted that it can be counter-productive and potentially re-traumatising to compel survivors to report to police.^[103]

15.55 Compounding general barriers to reporting to police is the requirement that reporting be within reasonable time.^[104] This was raised as particularly problematic because stakeholders submitted that such a requirement does not adequately reflect the reality of many crimes, particularly that:

• evidence suggests victims of sexual offences will often delay reporting^[105]

• historical child sexual assault will often be disclosed by adult survivors decades after the abuse occurred, and often after the offender is deceased^[106]

• some victims of family violence may take a long time to recognise family violence as a crime^[107] or regain stability in their life to deal with the psychological consequences of family violence^[108]

• some victims delay reporting a crime to police until they feel they would be ready to commence the prosecution process, which may take some time.^[109]

15.56 In addition, safe steps Family Violence Response Centre submitted that there are different interpretations of what is considered a reasonable time for the purposes of reporting under section 52, resulting in significant uncertainty for applicants.^[110]

15.57 Although stakeholders raised extensive issues in relation to the police reporting requirement, as summarised above, a small number of stakeholders considered the requirement to report to police to be beneficial, as it may assist the state in holding perpetrators to account, and because a police report may assist a victim to meet evidentiary requirements.^[111]

Requirement to cooperate with police and prosecution

15.58 In written submissions and during consultations, stakeholders said that the requirement for victims to cooperate with police and prosecution is difficult to comply with because:

• victims may be too scared to proceed with making a formal statement or having charges pressed,^[112] with some victims fearing the repercussions of cooperation with police or prosecution^[113]

• victims may be unwilling to face the perpetrator, relive traumatic experiences and be cross-examined about intensely personal and painful experiences during the criminal justice process^[114]

• victims may be unwilling to participate in the criminal justice process more broadly because their motivation for making initial contact with police was to stop the violence and seek safety, rather than for prosecution purposes^[115]

• the alleged offender may be a work colleague or a public figure, and victims may fear that proceeding with charges might attract unwanted attention^[116]

• some victims may decide that they can no longer participate in an investigatory or prosecution process^[117] because it might inflame past trauma or be incompatible with recovery.^[118]

15.59 Some stakeholders said that the requirement to cooperate with police disproportionately affects victims of family violence.^[119] A lack of cooperation with police is a common occurrence in family violence matters due to the nature and dynamics of family violence.^[120] Women’s Legal Service Victoria and Domestic Violence Victoria submitted that some family violence victims are requested by police to sign statements of ‘no complaint’ which can then be interpreted by VOCAT as not providing reasonable assistance.^[121] The RMIT Centre for Innovative Justice told the Commission that VOCAT will often seek submissions from legal counsel seeking reasons why a client has not cooperated with police.^[122]

15.60 The Commission was told that a requirement to report to police relies on police willingness to engage with victims, including victims who police might view as ‘difficult’, such as victims with cognitive impairments, acquired brain injuries or those with a criminal history.^[123] Some stakeholders submitted that the requirement to cooperate with police can prevent victims from seeking assistance and can create an onus on victims to be the ‘perfect’ or ‘ideal’ victim.^[124]

15.61 The Aboriginal Family Violence Prevention & Legal Service Victoria was concerned by what they viewed as increasing evidentiary burdens to fulfil police cooperation requirements. It submitted that where once VOCAT would have accepted a police statement as sufficient proof of cooperation with police, Tribunal members are increasingly asking parties to present further evidence, such as Victim Impact Statements.^[125]

Special circumstances mitigating failure to report or provide reasonable assistance

15.62 Although section 52 of the VOCAA provides an exception to mandatory refusal where VOCAT considers that there are special circumstances resulting in either a failure to report to police within reasonable time, or a failure to provide reasonable assistance to police or the prosecution, stakeholders raised concerns about an exception based on special circumstances.

15.63 Stakeholders suggested an exception based on special circumstances is problematic because:

• it is not defined in the VOCAA,^[126] so there is little guidance as to the types of matter that may mitigate a failure to report or cooperate^[127]

• it may not adequately account for the experiences of diverse communities, for example, the effects of historical police contact with the Aboriginal community or particular cultural or community pressures and expectations^[128]

• it places the onus on victims to prove they are an exception or to explain why their particular experience with violence is different and special,^[129] which may be difficult with common criminal acts, like family violence.^[130]

15.64 Some stakeholders submitted that the hurdle of proving special circumstances is substantial for some applicants.^[131] Darebin Community Legal Centre submitted that where applicants struggle to prove special circumstances, VOCAT will often request a hearing and begin the offender notification process, and at this stage victims will often instruct their lawyer to withdraw their VOCAT application altogether.^[132]

Section 54 character and behaviour considerations

15.65 A number of stakeholders were concerned that section 54 unfairly affects victims of crime,^[133] with section 54 provisions broadly described by stakeholders as:

• a barrier for family violence victims^[134]

• ‘blocking justice’ for people who deserve financial assistance^[135]

• perpetuating victim blaming by the justice system^[136]

• punishing people with criminal histories twice^[137]

• requiring victims to be the ‘perfect victim’,^[138] putting victims ‘on trial’^[139] and deeming some victims as ‘lesser’ or ‘less deserving’ than other victims^[140]

• relying on a binary notion of victim/offender, inconsistent with reality^[141]

• ‘too subjective’,^[142] giving rise to the potential for bias and unfairness^[143] and discriminatory and abusive conduct by decision makers.^[144]

15.66 The Aboriginal Family Violence Prevention & Legal Service Victoria submitted that ‘denying payment on character grounds and forcing a victim to justify that they are worthy of payment, reinforces stigma and marginalisation and can be re-traumatising’.^[145]

15.67 Stakeholders also submitted that the nature of section 54(a) was ‘unreasonably broad’,^[146] and as a consequence:

• imposes ‘perfect victim’ standards^[147]

• requires victims to ‘act “rationally”, leave abusive relationships, report violence, and not fight back or have substance abuse issues’^[148]

• invites misinformed views about ‘deserving’ and ‘undeserving’ victims.^[149]

15.68 The Aboriginal Family Violence Prevention & Legal Service Victoria submitted that the section 54 provisions can re-traumatise victims who can feel that they have to ‘prove they are not “to blame” for the violence they have experienced’.^[150]

15.69 Some stakeholders submitted that section 54 perpetuates structural inequalities which cause people who experience particular marginalisations, such as poverty and disability, to have contact with the criminal justice system,^[151] and therefore creates barriers for the most vulnerable members of the community and those most in need of assistance.^[152]

15.70 Some stakeholders said that section 54 fails to recognise who the majority of victims are, instead requiring a neat dichotomy of ‘victims’ and ‘perpetrators’,^[153] ‘divorced from social realities’.^[154]

15.71 Other concerns related to a perceived lack of transparency and consistency in decision making under section 54 because of the broad nature of the provisions. Stakeholders said there can be a big disparity in approaches between different magistrates,^[155] so it can be difficult to predict the Tribunal’s approach.^[156]

15.72 The Commission was also told that discussing section 54 requirements with victims is the ‘antithesis of therapeutic’ as it communicates to victims that they are not worthy of assistance.^[157]

15.73 In contrast, some stakeholders told the Commission that section 54 provides Tribunal members appropriate discretion^[158] to deeply examine complex situations and weigh appropriate matters,^[159] particularly where victims have themselves cost the state significant money as a result of their past offending behaviour.^[160] Some academics told the Commission that there might be a community expectation that some victims should not be entitled to assistance in some circumstances.^[161]

15.74 Beyond the general concerns expressed about section 54 provisions, some stakeholders raised concerns about some of the more specific considerations provided for under section 54, including:

• past criminal activity

• drug and alcohol use

• provocation or contributory conduct

• perpetrator benefit.

15.75 Stakeholder views in relation to these matters are outlined below.

Consideration of past criminal activity

15.76 Stakeholders expressed significant concern about the current requirement to consider an applicant’s past criminal activity^[162] suggesting such considerations:

• are ‘unreasonable’ and ‘discriminatory’^[163]

• are ‘a moral judgement’^[164]

• result in unfair judgment of victims^[165] and re-victimise individuals^[166]

• ignore the connection between past victimisation and criminal offending^[167]

• ignore the connection between criminal activity and disadvantage experienced by a victim, such as poverty^[168] or homelessness^[169] or growing up witnessing violence^[170]

• further disadvantage people from low socio-economic backgrounds,^[171] and marginalised victims who are more likely to have had intersections with the criminal justice system.^[172]

15.77 Some stakeholders were particularly concerned about historical criminal convictions being used by VOCAT to deny victims assistance,^[173] including historical matters not relevant to the act of violence.^[174] Some stakeholders had experienced VOCAT seeking submissions on shoplifting convictions from 25 years^[175] and 17 years before.^[176] In this context, the Commission was told that ‘victims are victims’, regardless of their past criminal history.^[177]

15.78 Some stakeholders also said that the section 54 provisions under the VOCAA disproportionately impact:

• female victims of crime, because many female victims of family violence have criminal histories relating to their experiences of family violence^[178]

• Aboriginal victims/survivors,^[179] because Aboriginal people face more discrimination across the justice system.^[180]

15.79 Academics consulted by the Commission said that the proposal to limit redress under the Commonwealth redress scheme for victims of institutional child sexual abuse who have served a prison sentence of five years or more is inappropriate.^[181] Similarly, knowmore submitted that its clients often have pathways to criminal offending beginning with childhood abuse leading to trauma, followed by a lifetime of institutional involvement and criminal offending.^[182]

15.80 Notwithstanding the above concerns, other stakeholders told the Commission that consideration of an applicant’s criminal activity may appropriately limit some people from receiving a VOCAT award.^[183] For example, some stakeholders submitted that those involved in ‘habitual criminal behaviour’ should not benefit from a crime.^[184] Cohealth submitted that consideration of criminal offending might be appropriate in some circumstances, but that the VOCAA should be amended to provide greater guidance as to how the discretion should be exercised.^[185]

15.81 A number of stakeholders said that criminal offending should only be considered if it is connected to the act of violence that forms the basis of their application,^[186] similar to the approaches taken in the Australian Capital Territory^[187] and Queensland.^[188] However, Dr Kate Seear et al and Springvale Monash Legal Service submitted that these considerations should be safeguarded through ensuring the scheme decision maker considers whether the act of violence which is the subject of the application was proportionate to the victim’s own criminal activity, and disallowing consideration of a victim’s use of drugs and alcohol.^[189]

Consideration of drug and alcohol use

15.82 There was significant concern expressed about VOCAT’s current consideration of a victim’s drug and alcohol use. Reasons provided by stakeholders include that such a consideration:

• is counter-therapeutic for victims of crime^[190]

• is inappropriate because addiction is a health problem^[191] and magistrates are not health experts^[192]

• ignores the connection between drug and alcohol use and victimisation,^[193] including that child sexual abuse or exposure to family violence can often lead to drug and alcohol abuse^[194]

• is inappropriate because the VOCAA does not require a nexus between the act of violence and the victim’s drug or alcohol use, so such considerations are irrelevant to the criminal act the subject of the application^[195]

• can result in the state failing to assist those most in need.^[196]

15.83 Some stakeholders queried how a past drug addiction could diminish a victim’s right to financial assistance when it does not change the impact that the crime has on a victim.^[197]

15.84 Dr Kate Seear et al submitted that academic research demonstrates significant inconsistency and variability in VOCAT approaches to an applicant’s past history of drug and alcohol use. Seear et al submitted that the Tribunal’s reasoning is problematic, as Tribunal members generally rely on ‘explaining’ or ‘excusing’ drug use, even though evidence suggests people use drugs or alcohol for a range of reasons.^[198]

Consideration of provocation or contributory conduct

15.85 Some stakeholders said that the inclusion of provocation in section 54 was outdated^[199] and out of step with community standards.^[200] Springvale Monash Legal Service submitted that such provisions feed into ‘victim-blaming’.^[201] This view was shared by the Aboriginal Family Violence Prevention & Legal Service Victoria who were particularly concerned about the applicability of provocation in family violence and sexual assault matters where such considerations might amount to ‘victim blaming’.^[202]

15.86 Merri Health Victims Assistance Program raised concerns about provocation no longer being available as a defence in criminal law and its inclusion in the VOCAA therefore appearing contradictory.^[203]

15.87 Concerns were raised about the extent to which the provisions which require VOCAT to take into account the ‘condition or disposition’ of the victim, require it to take into account the influence of drugs and alcohol at the time of the criminal act.^[204] Some stakeholders said there had been instances where VOCAT had raised queries in relation to clients’ intoxication at the time of the criminal act, including in cases of alleged sexual assault.^[205]

15.88 Other stakeholders were concerned that the ‘contributory conduct’ provision in section 54 of the VOCAA does not adequately consider the psychological impact of family violence and sexual abuse, such as the effect of grooming,^[206] and that in some cases, victims’ actions might be perceived as provocation or contributory conduct without appropriate contextual information.^[207] Springvale Monash Legal Service submitted that victims may sometimes respond to a perpetrator’s threats through defensive or protective behaviours.^[208] Other stakeholders submitted that the provocation and contributory conduct provisions feed into a victim blaming narrative.^[209] Dr Kate Seear et al said this has particular applicability to family violence and sexual assault cases where ‘gendered understandings of responsibility, vulnerability, agency and blame might shape decision making’.^[210]

Consideration of perpetrator benefit

15.89 A number of stakeholders submitted that consideration of perpetrator benefit under section 54 unfairly discriminates against family violence victims because:

• it fails to account for the complex dynamics of family violence, as well as the importance of financial stability for women’s decisions to stay or leave violent relationships^[211]

• family violence is different to one-off crimes, in that the perpetrator and victim often have an ongoing relationship and their lives may remain ‘enmeshed’ through familial responsibilities^[212] or because of other complex reasons including family obligations, childcare and parenting arrangements, common places of worship or work, property ownership and family law orders^[213]

• refusing awards might deny women the opportunity to obtain the money needed to safely exit a violent relationship^[214] or assist a victim during the process of leaving a violent relationship.^[215]

15.90 For this reason, Aboriginal Family Violence Prevention & Legal Service Victoria submitted that consideration as to whether the perpetrator may directly or indirectly benefit from an award is not relevant to whether the victim has in fact suffered from family violence and is in need of assistance.^[216]

15.91 Women’s Legal Service Victoria and Domestic Violence Victoria submitted that it is the state’s responsibility to ‘hold perpetrators accountable’ and that as such, victims should not be excluded, blamed, disadvantaged or penalised where they continue to ‘manage complex relational circumstances’ with a perpetrator.^[217]

15.92 However, some support workers told the Commission that the perpetrator benefit provision in the VOCAA may still be appropriate since the provision of Family Violence Flexible Support Packages is also based on a requirement that a victim must have left (or be in the process of leaving) a perpetrator of family violence.^[218]

Discussion and recommendations

15.93 As detailed above, the practical effect of both sections 52 and 54 is that VOCAT must consider a victim’s character, attitude and behaviour before, during and after a crime. Because section 52 and 54 considerations often intersect and overlap, the Commission’s recommendations are outlined together at the end of this part.

15.94 However, before detailing the Commission’s recommendations for the proposed Act and scheme, the next part of the report discusses each relevant factor under the existing VOCAA to determine whether it should be included in the proposed Act.

Requirement to report to police within reasonable time and provide reasonable assistance to police and prosecution

15.95 As noted above, stakeholders have raised significant concerns about requirements to report to police and provide reasonable assistance to police and prosecution under section 52 of the VOCAA.^[219] Few stakeholders advocated for the retention of section 52 reporting and cooperation requirements in their current form, with only a small number suggesting such requirements may assist the state to hold perpetrators to account or assist a decision maker in determining whether the criminal act occurred.^[220]

15.96 A number of the concerns raised by stakeholders in relation to police reporting requirements are confirmed by academic literature, including barriers to reporting for:

• victims of family violence who are less likely to report to police as a result of fear, shame or economic disadvantage^[221]

• victims of sexual assault or historical child sexual assault who, like family violence victims, may also be less likely to report the crime, or delay reporting as a result of confusion, shock, guilt or fear^[222]

• Aboriginal victims of crime, who may have a general distrust of authorities^[223]

• members of the LGBTIQ community, who may be less likely to report to police because of actual or perceived discrimination and harassment^[224]

• victims with disability, who may experience physical or structural barriers to reporting, as well as cultural barriers relating to being believed when making a report.^[225]

15.97 In addition there is limited evidence to suggest the reporting requirements in state-funded financial assistance schemes results in increased rates of reporting to police.^[226]

15.98 In this context, the Commission notes that other Australian jurisdictions have addressed concerns about police reporting requirements by introducing alternative reporting mechanisms in their relevant schemes. For example, in the Australian Capital Territory, New South Wales and Queensland, special classes of victim may make a report to other professionals like their doctor or social worker.^[227] These alternative reporting mechanisms recognise the barriers faced by many victims in making a report to police.

15.99 As submitted by Eastern Metropolitan Regional Family Violence Partnership, a trauma-informed approach ‘means the trauma is addressed, not exacerbated or magnified by asking [victims] to make statement after statement’.^[228]

15.100 Taking into account the range of concerns expressed by stakeholders about the operation of section 52 provisions, as outlined above, and given such concerns are also reflected in academic literature, the Commission is of the view that the current section 52 requirements are not consistent with the purpose of the proposed Act—to assist victims of crime in their recovery.^[229]

15.101 The Commission considers that the current police reporting requirements may have a negative effect on some victims’ recovery by placing them at risk of further harm or violence from the perpetrator,^[230] or exposing them to police or prosecution processes that may conflict with their welfare and recovery.^[231] Accordingly, the Commission considers that under the proposed Act, a report to police should be recognised as one of the documentary evidence options that can be provided by an applicant to establish eligibility for the proposed scheme, rather than a mandatory requirement. The documentary evidence requirements of the proposed Act are discussed in Chapter 14.

15.102 The Commission also considers that, by extension, the requirement to assist police and prosecution should no longer apply either, and should not be included in the proposed Act. In the Commission’s view, it would be impractical to require a victim to provide reasonable assistance to police and prosecution, without at the same time requiring victims to make a report to police regarding the relevant criminal act. Accordingly, the Commission considers that the current requirement to assist police should not be replicated in the proposed Act.

Broad consideration of character and behaviour ‘at any time’

15.103 As described above, there was significant stakeholder concern with the existing scheme’s broad consideration of an applicant’s character and behaviour ‘at any time’, with section 54 described by many stakeholders as a ‘barrier’,^[232] perpetuating victim blaming,^[233] punishing people with criminal histories ‘twice’,^[234] requiring victims to be the ‘perfect victim’,^[235] putting victims ‘on trial’,^[236] and deeming some victims as ‘underserving’.^[237]

15.104 These concerns have also been raised in academic literature. Kate Seear and Suzanne Fraser have highlighted issues with the VOCAA’s consideration of character and behaviour, and the broad discretion within such a consideration:

section 54 offers no guidance to what might be a relevant consideration, what weight should be given to relevant considerations in deciding whether or not to make an award, and how those considerations impact on decisions about the kind or size of an award to make … [decision makers] have considerable scope for determining what is both ‘relevant’ and ‘problematic’.^[238]

15.105 Julie Stubbs and Jane Wangmann have observed that binary oppositions entrenched within the legal system, such as those perpetuated by the broad nature of section 54 considerations, lead to perceptions of ‘innocent’ victims and ‘wicked’ offenders which can disadvantage victims who do not fit these strict categories, such as female victims of family violence who ‘fight back’, have a criminal history, or abuse drugs and alcohol.^[239] Similarly, Genevieve Parent has observed that the ‘innocent’ victim stereotype in victim compensation schemes does not correspond with the reality of most victims and may impede or prevent the victim’s rehabilitation process.^[240]

15.106 David Miers has observed that the:

differentiation between deserving and undeserving victims to the [United Kingdom] Scheme’s legitimacy cannot be overstated. Its defining purpose has always been to compensate the innocent victim, a notion which, though politically powerful is both conceptually and factually problematic, and controversial in its application^[241]

15.107 At the same time, the Commission acknowledges that some stakeholders thought some section 54 considerations enable VOCAT to examine complex situations and weigh appropriate matters,^[242] particularly where victims have themselves cost the state significant money as a result of their past offending.^[243] The Commission was told that there might be a community expectation that some victims should not be entitled to assistance in some circumstances.^[244]

15.108 However, the Commission notes that other Australian jurisdictions have much narrower provisions providing for consideration of a victim’s character and behaviour, limiting such factors to behaviours relevant to the current act of violence.^[245]

15.109 In the Commission’s view, the broad consideration of an applicant’s character, behaviour and attitude ‘at any time’ can unfairly prejudice vulnerable, disadvantaged and diverse victims who may fall short of the notion of the ‘perfect victim’.^[246]

15.110 The broad consideration of an applicant’s character, behaviour and attitude is consistent with the current objectives of the VOCAA—which include an objective of only acknowledging certain victims. However, as discussed in Chapter 11, the Commission has recommended that the proposed Act not include an objective provision recognising certain victims because such an objective can give rise to moral judgments about deserving and undeserving victims inconsistent with the purpose of the proposed Act—to assist victims in their recovery.^[247]

15.111 Accordingly, the Commission considers that it is no longer appropriate, or consistent with the purpose and objectives of the proposed Act, for the scheme decision maker to have regard to the broad character and behaviour of the applicant ‘at any time’ in making a financial assistance determination and that such a provision should not be included in the proposed Act.

Consideration of criminal behaviour

15.112 As stated at above, stakeholders raised significant concerns about the requirement under the VOCAA to consider an applicant’s past criminal behaviour, suggesting consideration of an applicant’s past criminal behaviour was ‘unreasonable’ and ‘discriminatory’,^[248] re-victimises individuals,^[249] ignores the connection between past victimisation and criminal offending,^[250] and further disadvantages people from low socio-economic backgrounds^[251] and marginalised victims who are more likely to have had interaction with the criminal justice system.^[252]

15.113 At the same time, a small number of stakeholders told the Commission that consideration of an applicant’s criminal activity appropriately limits some people from receiving an award.^[253] For example, cohealth suggested those involved in ‘habitual criminal behaviour’ should not benefit from a crime, but assistance should be provided for victims where previous criminal behaviour is unrelated to the current crime.^[254]

15.114 Victoria’s consideration of an applicant’s criminal behaviour is much broader than in other jurisdictions. Other jurisdictions limit considerations to:^[255]

• whether the victim’s involvement in criminal activity (past or present) was the ‘only reason’ or the ‘main reason’ the act of violence was committed^[256]

• whether the applicant was involved in a serious crime when the act of violence occurred, and the serious crime was the main reason that the act of violence occurred^[257]

15.115 Therefore, unlike the broad consideration of any criminal behaviour under the VOCAA, other jurisdictions require a nexus between criminal behaviour and the act of violence the subject of the application—either temporally (the applicant was committing an offence at the time) or causally (the applicant’s past criminal behaviour was connected in some way to the act of violence the subject of the application).

15.116 In contrast, the proposed Commonwealth Redress Scheme for Institutional Child Sexual Abuse may exclude applicants convicted of serious crimes, including sexual offences, drug offences, fraud or murder, that have resulted in a prison sentence of five years or more.^[258] Like the current provisions of the VOCAA, such a proposal is much broader than other state-funded financial assistance schemes as it does not require a nexus between the criminal behaviour and the act of violence the subject of the application.

15.117 However, the Senate Community Affairs Legislation Committee stated in its report that nearly all written submissions and witnesses to their enquiry said that survivors should not be excluded from the redress scheme due to criminal offending.^[259] For example, the Alliance for Forgotten Australians submitted to the Senate Inquiry that such an exclusion punishes victims ‘three times’:

firstly through the institutional practices which took away their childhoods; secondly through the grief, loss and trauma which has affected their entire lives; and thirdly through ineligibility for redress and justice. Sadly, this third punishment appears to be an expedient, cynical and traumatic outcome for survivors and what remains of their families.^[260]

15.118 Other victims’ groups also submitted the exclusion was inappropriate, given the link between victimisation, trauma and criminal activity.^[261] The Senate Community Affairs Legislation Committee also stated in its report that ‘no other Commonwealth compensation scheme or financial relief payment for other survivor or victim cohorts … holds any eligibility restriction on access based on criminal conviction or similar character grounds’.^[262]

15.119 On the other hand, the Commonwealth Department of Social Services submitted to the Senate Inquiry that the exclusion of victims with a history of serious criminal convictions was based on consultation with state and territory ministers who:

were of the strong view that excluding some people based on serious criminal offences is necessary to ensure the Scheme is not using taxpayer money to pay redress to those whose actions may not meet prevailing community standards.^[263]

15.120 Recent media reports suggest that the Commonwealth Government may reconsider its plan to exclude sexual abuse survivors with serious criminal histories from accessing the national redress scheme.^[264]

15.121 In the Commission’s view, broad consideration of an applicant’s past criminal activity raises issues of unfairness for victims of crime, particularly given the connection between past victimisation and future offending highlighted not only by stakeholders but in academic literature.^[265]

15.122 In the Commission’s view, in order to be taken into account in the making of an award, a victim’s criminal behaviour should be either temporally or causally connected in some way to the act of violence the subject of the application. This approach would be consistent with the approach in other jurisdictions outlined above. Accordingly, the Commission considers that under the proposed Act, the decision maker should be able to consider:

• whether the applicant was committing an offence at the time of the criminal act that is the subject of the application, which was the primary reason the criminal act that is the subject of the application was committed

• whether the applicant’s previous involvement in criminal activity was the primary reason the criminal act that is the subject of the application was committed.

15.123 The effect of this is that an applicant’s criminal behaviour will only be relevant where there is a nexus between the current or past criminal behaviour and the criminal act the subject of the application.

15.124 In the Commission’s view, this approach appropriately balances stakeholder concerns that:

• victims not be unfairly denied access to assistance where an applicant’s past criminal behaviour has no relationship to the current act of violence

• there are some behaviours that the community reasonably expects ought to affect an applicant’s eligibility under the proposed scheme, such as an applicant committing an offence at the time the act of violence occurred that contributed in some way to the act of violence.

15.125 The Commission acknowledges that under this proposal, some victims of crime with past criminal histories may be eligible for financial assistance. This may be considered undesirable in some circumstances, particularly where an individual’s past criminal activity ‘may not meet prevailing community standards’.^[266]

15.126 However, the Commission considers that a beneficial, victim-centred scheme necessarily places victims’ needs at the centre and that a victim’s past (unrelated) criminal behaviour does not negate a victim’s current assistance needs.

15.127 In particular, the Commission notes stakeholder concerns that denying victims financial assistance based on past criminal activity ignores the established link between past victimisation and criminal offending.^[267] This approach also has the potential to further disadvantage marginalised victims who are more likely to have had intersections with the criminal justice system.^[268]

15.128 The Commission has also considered the recent report of the Senate Community Affairs Legislation Committee in relation to the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth). Nearly all written submissions and witnesses to the enquiry said that survivors should not be excluded from the redress scheme due to criminal offending.^[269] The Senate Committee also noted that ‘no other Commonwealth compensation scheme or financial relief payment for other survivor or victim cohort … holds any eligibility restriction on access based on criminal conviction or similar character grounds’.^[270]

15.129 In the Commission’s view, the proposal that an applicant’s criminal behaviour be either temporally or causally connected in some way to the act of violence the subject of the application appropriately balances stakeholder concerns that victims not be unfairly denied assistance to help them recover from a criminal act, while also ensuring related criminal behaviour is a relevant consideration.

15.130 Consistent with this beneficial approach, the Commission is of the view that consideration of criminal behaviour should only apply to the provision of lump sum recovery payments rather than to the provision of immediate assistance, funeral expenses, counselling or practical assistance. In the Commission’s view, this approach ensures victims receive necessary practical supports to assist in their recovery from crime, while at the same time accepting that some financial assistance—like lump sum payments—may not be appropriate for ‘those [applicants] whose actions may not meet prevailing community standards’.^[271]

15.131 This approach of limiting such a consideration to lump sum payments reflects the current approach of VOCAT in some cases of making awards for practical expenses, but not awards of special financial assistance where section 54 matters arise.^[272]

Consideration of drug and alcohol use

15.132 The VOCAA does not specifically provide for consideration of drug and alcohol use but such considerations fall within the broad consideration of an applicant’s character and behaviour ‘at any time’.^[273] Research by Kate Seear and Suzanne Fraser in 2014 also confirmed that victims of crime who use drugs and/or alcohol face considerable obstacles in accessing VOCAT awards.^[274]

15.133 As noted above, stakeholders said that consideration of drug and alcohol use was problematic because such considerations can lack any causal connection with the act of violence the subject of the application,^[275] some victims’ drug and alcohol use is directly related to their previous experiences of victimisation,^[276] and because such considerations can be counter-therapeutic for victims of crime,^[277] resulting in the state failing to assist those most in need.^[278]

15.134 For example, Dr Kate Seear et al submitted that where victims use drugs and alcohol in the aftermath of crime a paradox emerges—victims may want support in relation to their drug and alcohol use, but this may become ‘the very thing that prohibits them from obtaining compensation’.^[279]

15.135 Dr Kate Seear et al also submitted that:

It is a popular misconception that experts are in agreement about issues pertaining to use, effects, harms, intoxication, addiction and alcoholism or that relevant mechanisms are straightforward. Indeed, key concepts around all of these are complex and contested.^[280]

15.136 In the Commission’s view, consideration of an applicant’s drug and alcohol use is problematic because:

• some victims may use drugs and alcohol to cope with the effects of victimisation,^[281] although drug and alcohol health experts do not necessarily agree on the causes and effects of drug and alcohol use, nor its intersection with trauma^[282]

• a victim’s drug and alcohol use does not diminish their need for financial assistance as a result of victimisation—and may in fact increase their financial assistance needs^[283]

• consideration of an applicant’s drug and alcohol use may further entrench inequality and stigma.^[284]

15.137 The VOCAA does not specifically require VOCAT to consider a victim’s drug and alcohol use. As the Commission has recommended that the proposed Act not include a broad consideration of character and behaviour, a victim’s drug and alcohol use is unlikely to arise under the proposed Act as a relevant consideration in the same way it has under the VOCAA.

15.138 However, in allowing the proposed scheme decision maker to consider a victim’s criminal behaviour, whether past or present, where there is a nexus between that criminal behaviour and the criminal act the subject of the application, consideration of a victim’s use of drugs and alcohol may arise in some circumstances. This may arise where such activity constitutes a criminal offence and is temporally or causally connected to the criminal act.

15.139 In the Commission’s view, consideration of a victim’s use of drugs and alcohol, even where this use may constitute a criminal offence, should not be relevant to consideration of whether the victim requires financial assistance to assist them in their recovery from a criminal act. As will be discussed further below in relation to ‘contributory conduct’ provisions under the VOCAA, the Commission is concerned that consideration of a victim’s drug and alcohol use at the time of the act of violence may perpetuate ‘victim blaming’. In reaching this conclusion, the Commission has considered the recent decision in Western Australia where a victim of an alleged sexual assault was denied compensation because she had taken illicit drugs—and was therefore committing a criminal offence—at the time she was sexually assaulted.^[285] Such concerns were also raised by Dr Kate Seear et al, who submitted that if section 54 considerations were amended to reflect other jurisdictions’ ‘temporal and causal’ approaches, such an approach should also explicitly exclude consideration of criminal activity relating to a victim’s use of alcohol or other drugs.^[286]

15.140 The Commission is of the view that consideration of a victim’s use of drugs or alcohol would contradict the beneficial approach of the proposed scheme, and its purpose to assist victims in their recovery.^[287] As such, the Commission recommends that the proposed Act explicitly exclude consideration of criminal behaviour that relates to drug and alcohol use.

Consideration of provocation and contributory conduct

15.141 As noted above, stakeholders expressed significant concerns with the VOCAA provisions relating to ‘provocation’ and ‘contributory conduct’, suggesting such provisions are out of step with community expectations, particularly where such considerations might perpetuate victim blaming in family violence and sexual assault matters.^[288]

15.142 Other stakeholders suggested the contributory conduct provision in section 54 of the Act does not adequately consider the psychological impact of sexual abuse, such as the effect of grooming.^[289] Springvale Monash Legal Service also submitted that in cases of family violence, victims’ actions may be perceived as a contributory factor when not viewed in the broader context of the cycle of violence.^[290]

15.143 Similar concerns have been raised in academic research. Linda Jurevic observed in relation to the equivalent Western Australian Act that:

by looking for contributory conduct in the victim, the Act creates defences to otherwise actionable conduct. The offender would not be able to assert a defence in criminal law, or allege contribution in tort law for his victim’s behaviour. Second, the Act ignores the social and psychological context in which domestic violence takes place. The Act’s attempt to award compensation only for the “truly deserving”, and for those who are deemed not to be the “author of their own misfortune” is used to blame women for remaining in an abusive relationship or not seeking the assistance of the legal system when leaving it.^[291]

15.144 In the Commission’s view, the retention of a legislative provision incorporating provocation, given the defence of provocation was abolished under Victorian criminal law in 2005,^[292] is out of step with community standards and may perpetuate victim blaming.

15.145 In addition, the Commission considers that retention of a legislative provision incorporating contributory conduct may perpetuate victim blaming, including where a victim has consumed drugs and alcohol. As observed by David Miers, many incidents of violence crime are prefaced or accompanied by the excessive consumption of alcohol or the use of illicit drugs.^[293] In this context, Miers notes the negative publicity received when the United Kingdom scheme rejected a compensation application on the grounds that it was unclear whether, by virtue of the applicant’s intoxication, sexual intercourse had been consensual.^[294]

15.146 Accordingly, and as outlined above, the Commission is of the view that consideration of a victim’s use of drugs or alcohol would contradict the beneficial approach of the proposed Act, and its purpose of assisting victims in their recovery.^[295] The Commission recommends that the proposed Act explicitly exclude consideration of criminal behaviour that relates to drug and alcohol use.

15.147 The Commission also considers that a victim’s ‘contributory conduct’, including any ‘provocation’ or ‘disposition’, should no longer be relevant to a decision maker’s determination of whether a victim should be entitled to financial assistance to assist in their recovery from a criminal act.

15.148 The exception to this would be where such behaviour is a criminal offence committed at the time of the criminal act, which was the primary reason the criminal act that is the subject of the application was committed. In such circumstances, this would be relevant criminal behaviour because, as discussed above, it would constitute a criminal offence with a nexus with the act of violence the subject of the application.^[296]

Consideration of perpetrator benefit

15.149 As noted earlier, a number of stakeholders have also raised concerns about consideration of perpetrator benefit under section 54, suggesting it unfairly discriminates against family violence victims.

15.150 In 2010, the Australian Law Reform Commission recommended that perpetrator benefit provisions should be repealed in state-funded financial assistance schemes because such provisions ‘discriminate against victims of family violence who remain in relationships with the offender’.^[297]

15.151 Some other Australian jurisdictions do not have perpetrator benefit provisions, but instead only consider whether an applicant may have colluded with an alleged offender.^[298]

15.152 However, Western Australia retains a similar provision to the perpetrator benefit provision in the VOCAA, enabling the decision maker to refuse to make an award if the assessor is of the opinion that the alleged offender is likely to benefit or gain advantage from the award.^[299]

15.153 Professor Robert Guthrie, an assessor under Western Australia’s Criminal Injuries Compensation scheme, observed in 2017 that perpetrator benefit matters rarely arise in Western Australia.^[300] However, Guthrie also noted that in the rare cases where such matters do arise, the matter may be discontinued, rather than refused (to allow the applicant to revive the application at a later stage); in some cases, assessors have paid the award to the Public Trustee with a direction that it not be used for the benefit of the offender.^[301]

15.154 The Commission agrees with stakeholder concerns that the perpetrator benefit provisions may unfairly prejudice some classes of victim, particularly victims of family violence who have an ongoing relationship with the perpetrator.^[302] The Commission does not consider it consistent with the beneficial approach of the proposed scheme to impose barriers to financial assistance where a victim is still in relationship with a perpetrator, but may wish to access financial assistance to deal with the effects of the crime, or to escape violence.

Accordingly, the Commission recommends there be no limitations to the provision of immediate assistance, funeral expenses, counselling or practical assistance for reasons of perpetrator benefit.

15.155 However, in the case of recovery payments, which are provided in a lump sum, the Commission considers that the potential for an alleged perpetrator, particularly in cases of family violence or elder abuse, to perpetrate financial abuse on a victim may be more likely, because the financial assistance is not for goods or services, but is provided in a lump sum.

15.156 Inner Melbourne Community Legal submitted that a perpetrator may use financial assistance awarded as a way to perpetrate further economic abuse, as well as exert control, suggesting that the decision maker should be able to put controls in place for accessing awards in such cases.^[303] Women’s Legal Service Victoria and Domestic Violence Victoria submitted that rather than denying a victim assistance as a result of perpetrator benefit, safeguards should be put in place that prioritise a victim’s right to access financial assistance, while managing any potential adverse outcomes in a way that is safe and relevant to a victim’s circumstances.^[304]

15.157 The Australian Law Reform Commission suggested in 2010 that although perpetrator benefit provisions should be repealed, relevant jurisdictions should consider mechanisms ‘to ensure that offenders cannot access victims’ compensation awards’.^[305]

15.158 Accordingly, the Commission considers that while perpetrator benefit should not be a factor in deciding whether or not to award a recovery payment, the Commission considers that the scheme decision maker should have discretion to require a recovery plan to be put in place in circumstances where the decision maker believes on the balance of probabilities that the perpetrator may benefit from the award. Following consultation with the victim, the recovery plan should outline how some or all of the payment will be used to assist in the victim’s recovery, and money should be held in trust and administered by a scheme case manager consistent with the plan.^[306]

Factors to be considered in determining an application under the proposed Act

15.159 Having regard to the matters discussed above, the Commission considers that, in determining an application for state-funded financial assistance under the proposed Act:

• there should be no mandatory requirement for a victim to make a report to police or assist with police or the prosecution—instead, a police report may be used by an applicant to assist them to meet evidentiary requirements

• the decision maker should no longer have regard to the broad character and behaviour of the applicant ‘at any time’ in making a financial assistance determination

• the decision maker should limit consideration of an applicant’s current or past criminal behaviour to activities with a nexus to the criminal act that is the subject of the application, and only in relation to the provision of a recovery (lump sum) payment

• the decision maker should not have a broad power to take into account an applicant’s drug and alcohol use, and the Act should explicitly exclude consideration of criminal behaviour (where relevant) that relates to drug and alcohol use

• an applicant’s ‘contributory conduct’, including any ‘provocation’ or ‘disposition’, should no longer be relevant unless such behaviour constitutes a criminal offence with a nexus between the criminal act the subject of the application, and then, only in relation to the provision of a recovery (lump sum) payment

• the perpetrator benefit provision should not apply in relation to all practical supports under the proposed scheme, but a decision maker should have discretion to consider whether or not to require a recovery plan in relation to recovery (lump sum) payments where the assessor determines on the balance of probabilities that a perpetrator might benefit from a recovery payment.

15.160 In addition, to ensure the proposed scheme’s sustainability and to protect the scheme from fraudulent claims, the Commission recommends that in determining an application, the proposed Act should require a decision maker to refuse any application where satisfied on the balance of probabilities that:

• the applicant has committed the criminal act the subject of the application or has voluntarily and freely participated in, assisted in or encouraged the commission of, the criminal act that is the subject of the application

• the application is made in collusion with the person who committed or is alleged to have committed the criminal act, or

• an earlier application has been made in relation to the same criminal act, whether or not the earlier application has been determined.

15.161 In this regard, the proposed Act would replicate the current provisions in sections 52(b)–(c) of the VOCAA which enable VOCAT to refuse to make an award of assistance if it is satisfied the application has been made in collusion with the perpetrator of the act of violence or if an earlier application for assistance has been made by the victim from the same act of violence.^[307] The Commission notes that these provisions were not raised as problematic in either the first or supplementary consultation papers, in literature, case law or by stakeholders in written submissions or during consultation meetings. Accordingly, the Commission recommends they be retained.

15.162 However, in the Commission’s view, the proposed Act should also include a further provision enabling the proposed decision maker to refuse any application where the decision maker is satisfied on the balance of probabilities that the applicant has committed the criminal act that is the subject of the application or has voluntarily and freely participated in, assisted in or encouraged the commission of the criminal act that is the subject of the application. This extends the current provisions in sections 52(b)–(c) of the VOCAA to ensure that any involvement of an applicant in the criminal act that goes beyond ‘collusion’ is also captured under the proposed Act to ensure the proposed scheme’s sustainability, and to protect the scheme from fraudulent claims.

Recommendations—factors to be considered in determining an application

76 The proposed Act should provide that the scheme decision maker must refuse any application where satisfied on the balance of probabilities:

(a) the applicant has committed the criminal act the subject of the application

(b) the applicant voluntarily and freely participated in, assisted in or encouraged the commission of the criminal act the subject of the application

(c) the application is made in collusion with the person who committed or is alleged to have committed the criminal act, or

(d) an earlier application has been made in relation to the same criminal act, whether or not the earlier application has been determined.

77 The proposed Act should provide that the scheme decision maker, in determining whether or not to make a recovery payment, or the amount of the recovery payment, must have regard to:

(a) whether the applicant, or the direct victim if the applicant is not the direct victim, was committing an offence at the time of the criminal act the subject of the application, and that offence was the primary reason the criminal act the subject of the application was committed

(b) whether previous involvement in criminal activity by the applicant, or the direct victim if the applicant is not the direct victim, was the primary reason the criminal act the subject of the application was committed.

78 The proposed Act should provide that for the purposes of determining whether or not to make a recovery payment, or the amount of the recovery payment, the scheme decision maker must not have regard to criminal activity related to drug and alcohol consumption.

79 The proposed Act should provide that where the scheme decision maker is satisfied on the balance of probabilities that an alleged perpetrator is likely to benefit from the making of a recovery payment, the scheme decision maker may determine that a recovery payment be subject to a recovery plan, with monies held in trust and administered by a scheme case manager in accordance with the recovery plan.

Timeliness of decision making

15.163 This part of the chapter reviews, and makes recommendations in relation to, the timeliness of decision making.

15.164 The Commission’s first and supplementary consultation papers identified a number of issues in relation to the timeliness of awards, including:

• the timeframes for decision making

• VOCAT application requirements, including documentary evidence requirements and VOCAT’s requests for further information, which affect the timeliness of awards

• VOCAT’s practice of adjourning the finalisation of a matter until related criminal proceedings have finalised.

15.165 Accordingly, this part of the chapter outlines the current law in relation to the timeliness of decision making, community and stakeholder views, and makes recommendations in relation to the timeliness of decision making under the proposed scheme.

Current law

15.166 VOCAT must act expeditiously to determine applications. Under the VOCAA, VOCAT has a duty to act fairly, according to the substantial merits of the case and as promptly as the requirements of the VOCAA and a proper determination of the matter permit.^[308]

15.167 However, VOCAT must also have regard to matters that can affect the time it takes to finalise an application, including:^[309]

• awaiting the outcome of a criminal investigation, trial or inquest

• the need for further enquiries to be made by VOCAT

• the need to notify the alleged offender about the application and give them reasonable time to respond

• waiting for an injury to stabilise so that an accurate prognosis can be provided to VOCAT

• identifying and communicating with all related victims of a deceased primary victim to advise them of their right to apply for financial assistance.

15.168 Section 32 of the VOCAA specifically enables VOCAT to make awards even where there might be related civil or Sentencing Act 1991 (Vic) matters that have not yet been finalised, meaning VOCAT can still decide an application, even if there is a pending civil trial, or if a court is going to decide a matter concerning compensation or restitution under the Sentencing Act.

15.169 However, under section 41 of the VOCAA, VOCAT can adjourn consideration of an application if there is a criminal trial or a civil trial that is related to that act of violence that is likely to be decided within six months.^[310]

15.170 The effect of sections 32 and 41 of the VOCAA is that in practice, a VOCAT application can be adjourned until other related court matters have been decided.

15.171 At the same time, section 56 of the VOCAA empowers VOCAT to make an interim award of assistance pending the final determination of an application. Applicants who need urgent assistance, such as financial assistance for safety-related expenses, can seek an interim award.^[311]

Responses

15.172 Many stakeholders said that the timeliness of VOCAT is a significant issue^[312] and often prevents victims from receiving financial assistance when they need it most.^[313] The Victorian Victims of Crime Commissioner submitted that he receives a large number of complaints in relation to delays in the VOCAT process.^[314]

15.173 Stakeholders and victims gave various timeframes for the finalisation of applications, ranging from six months to three years.^[315] Of particular concern to a number of stakeholders were delays relating to interim awards.^[316]

15.174 Stakeholders submitted that delays in financial assistance can have a significant impact on victims, causing distress,^[317] re-traumatising victims^[318] and hampering recovery.^[319]

15.175 Stakeholders said that timely assistance is especially important for victims of family violence^[320] who may urgently need assistance to relocate^[321] and implement safety mechanisms.^[322] Knowmore submitted that timely assistance is particularly important for adult victims of child sexual abuse who are often aged, in poor health and suffering the debilitating impact of complex trauma that can be exacerbated by lengthy delays.^[323]

15.176 Ryan Carlisle Thomas Lawyers submitted that sections 32 and 41 of the VOCAA appeared ‘at odds with one another’:

Section 32 requires the VOCAT to act fairly, according to the substantial merits of the case and with as much expedition as the requirements of the Act and proper determination of the matter permit. Conversely, section 41 gives the VOCAT significant discretion to adjourn the matter.^[324]

15.177 While timeliness was raised as a significant concern by many stakeholders, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also submitted that:

available metrics regarding average times taken to finalise an application are not a true measure of VoCAT’s responsiveness, as they do not reflect the role interim awards play in providing timely assistance to applications. Similarly, the increasing number of pending cases and overall throughput metrics does not directly correlate with VoCAT’s efficiency and responsiveness.^[325]

15.178 Stakeholders generally agreed that one of the most common causes of delay in relation to awards under the VOCAA is VOCAT’s practice of waiting until the finalisation of the criminal trial before determining an application.^[326]

15.179 Stakeholders had differing opinions about the usefulness of this practice. Some stakeholders submitted that waiting for the outcome of the criminal trial reduces the complexity of applications,^[327] as VOCAT does not need to assure itself that a crime has occurred if there has been a successful prosecution.^[328] Other stakeholders told the Commission that waiting for the outcome of a criminal trial prevents the applicant being cross-examined during the criminal trial about their VOCAT application.^[329]

15.180 In contrast, other stakeholders said that the practice of awaiting the outcome of the criminal trial is contrary to the purpose and objectives of the VOCAA.^[330] As the Victims of Crime Commissioner submitted:

Under the current scheme, a victim can make an application regardless of whether criminal charges are filed and with a lower evidentiary burden in place. Why then, should victims in matters where a person has been charged with the offence, be required to await the determination of guilt before receiving a final payment?^[331]

15.181 Stakeholders also said that the following factors caused delays in the VOCAT process:

• documentary evidence requirements^[332]

• the failure of police to respond quickly to information requests^[333]

• poor preparation by lawyers^[334]

• the vulnerability of the applicant, which can lead to delay in completing forms and arranging supporting evidence^[335]

• the complexity of a particular matter^[336] and managing legal proceedings more generally.^[337]

15.182 To manage issues related to timeliness of decision making, a number of stakeholders supported amending sections 32 and 41 of the VOCAA to clarify the need for speedy determinations^[338] or the development of a practice direction to provide guidance to VOCAT in relation to the need to expedite awards.^[339] Some stakeholders, however, did not consider that a practice direction providing further guidance to VOCAT would improve timeliness.^[340] Some stakeholders submitted that there should be specified time limits in which decision makers must determine an application.^[341] For example, Darebin Community Legal Centre submitted that:

The current framework contains a limited timeframe for victims to apply and prepare their VOCAT applications, however is entirely silent on the time frame in which VOCAT is required to make a finding regarding an application.^[342]

15.183 Other stakeholders submitted that more structural changes were required to improve timeliness, including:

• having specialist VOCAT magistrates^[343] or specialist streams^[344]

• triaging applications^[345]

• co-location of victim services^[346] or integration with victim services^[347]

• increased staff^[348] and resources.^[349]

15.184 Some stakeholders submitted that amending the VOCAA would make little difference to the timeliness of awards without more resources^[350] or changing the model of assistance.^[351] A number of stakeholders said using administrative processes would greatly improve the timeliness of state-funded financial assistance for victims of crime.^[352]

15.185 The Commission was also told about poor communication from VOCAT where months might pass without an applicant receiving any correspondence.^[353] The Crime Victims Support Association submitted that phone calls to VOCAT by victims often go unanswered, causing victims more stress.^[354] The Victims of Crime Assistance League submitted that the ‘existing system is devoid of communication. Parties are left in the dark for many months receiving no communication.’^[355]

Discussion and recommendations

15.186 Research suggests the more quickly victims can receive timely support and assistance, the better their chances of recovery.^[356] Conversely, delays can have counter-therapeutic effects on victims.^[357] For example, Geneviève Parent has observed in relation to the equivalent state-funded financial assistance scheme in Quebec, Canada that delays in awards bring ‘more stress to an already very difficult situation for crime victims’ and that battling with expenses on top of delays imposed by bureaucratic obstacles is difficult for victims.^[358] Research suggests the timeliness of financial assistance decisions enhances a victim’s overall satisfaction with the financial assistance process.^[359]

15.187 In other Australian jurisdictions where administrative schemes have been introduced, there has been a marked increase in timely decision making. For example, in New South Wales, timeframes have decreased from around two years^[360] to an average of 26 days.^[361] In Queensland, decisions are typically made in three weeks for funeral and interim applications, three months for primary victims and six months for secondary victims.^[362]

15.188 The Commission noted in Chapter 8 that the transition to an administrative model would likely to lead to improvements in overall timeliness of decision making.^[363] However, in the Commission’s view, additional safeguards should be incorporated into the proposed scheme’s design to ensure timeliness remains a key feature of the effective delivery of state-funded financial assistance to victims of crime.

15.189 The Commission notes the observation above by Darebin Community Legal Centre that VOCAT currently imposes time limits on victims’ submission of documentary evidence to support a claim, but VOCAT itself is not expressly required to determine applications within specified timeframes.^[364] In the Commission’s view, time limits prescribed in the proposed Act should promote timeliness of decision making and should operate for the benefit of applicants, not just the decision making body as is currently the case.

15.190 Therefore, beyond the structural changes under the proposed scheme outlined in Chapters 9 and 10, the Commission considers that further safeguards be included in the proposed Act as follows:

• that the scheme decision maker should be required to act expeditiously in the determination of applications, reflecting the current provision in section 32 of the VOCAA^[365]

• that, in support of the requirement proposed above that the scheme decision maker be required to act expeditiously, regulations provide for time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made.

15.191 The Commission notes that the Tasmanian scheme also prescribes timeframes within which applications must be determined.^[366]

15.192 The Commission considers that time limits should be provided for in regulations so that they can be amended in accordance with best practice, while being flexible to changes in demand for the proposed scheme over time.

15.193 The Commission considers that the time limits included in the regulations should be developed in accordance with best practice, including average timeframes for decision making in other administrative schemes in Australia. These timeframes should also recognise the time-sensitive nature of immediate assistance, funeral expenses, counselling and practical assistance, including the need to maintain continuity in service provision for supports such as counselling.

15.194 The Commission does not consider that there should be a prescribed timeframe for the determination of recovery (lump sum) payments. Although the scheme decision maker will still be required to act expeditiously, in line with the general requirement under the proposed Act, in the Commission’s view, a prescribed timeframe for the determination of a recovery payment would be impractical due to the range of factors that must be taken into account before determining recovery payments, as outlined in detail in Chapter 13.

15.195 Although legislative timeframes should improve predictability and consistency for victims, the Commission also considers that communication with victims during the decision making process is as important as timely decision making. The Commission notes stakeholder concerns about poor communication from VOCAT, including concerns about lack of contact from VOCAT^[367] and phone calls to VOCAT going unanswered.^[368]

15.196 To provide further clarity and certainty to victims, the Commission considers that where an application for assistance is unable to be determined within the time period prescribed in the regulations, the decision maker must:

• provide the applicant with written reasons for the failure to make a decision within the prescribed time limit, and provide the applicant with information on the expected determination time frame, or

• if the decision maker considers further information in relation to the application is necessary, the decision maker must request in writing that the applicant, or another person, provide specified further information in relation to the application, and

• report annually on the proportion of decisions determined according to the prescribed timeframes.

15.197 Given stakeholder concerns that VOCAT frequently delays matters pending the outcome of a criminal trial,^[369] the Commission also considers that the proposed Act should provide that the scheme decision maker is not to be permitted to delay an application pending the outcome of any other legal proceeding.

15.198 The Commission notes that the scheme decision maker should still be able to refuse an application where an applicant is unable to meet the requirements of the proposed scheme, as discussed in Chapter 14. However, the Commission considers that it should not be a practice of the proposed scheme to wait for the outcome of a criminal investigation, trial or inquest before providing assistance to a victim, provided the evidentiary requirements can be met.

Recommendation—timeliness of decision making

80 To help ensure timely decision making, the proposed Act should:

(a) provide that the scheme decision maker must act expeditiously in the determination of applications

(b) prescribe specific time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made, reflecting:

(i) the urgent nature of requests for immediate assistance and funeral expenses

(ii) the need to maintain continuity in service provision for victims in relation to counselling

(iii) best practice, benchmarked against the average time taken to determine financial assistance applications in other schemes

(c) provide that where an application for assistance is unable to be determined within the relevant prescribed time period, the scheme decision maker must:

(i) provide the applicant with written reasons for the failure to make a decision within the prescribed time limit

(ii) provide the applicant with information on the expected determination timeframe

(iii) if the scheme decision maker considers further identified information in relation to the application is necessary, request the applicant, or another person, in writing, to provide the specified further information in relation to the application

(d) provide that the scheme decision maker is not permitted to delay the determination of an application pending the outcome of any other legal proceeding.

Transparency of decision making

15.199 This part of the chapter reviews, and makes recommendations in relation to, the transparency of decision making. This part relates to the transparency of decision making in individual cases, rather than matters relating to transparency of the proposed scheme’s operations. Broader data collection and publication in relation to the proposed scheme are discussed in detail in Chapter 19.

Current law

Written reasons for decisions

15.200 Under section 33 of the VOCAA, VOCAT may determine an application without conducting a hearing in the following circumstances:^[370]

• if the applicant has stated in the application a wish for the Tribunal to make a determination without conducting a hearing

• the applicant consents in writing

• the application relates to an interim award.

15.201 If making a decision under section 33 of the VOCAA, VOCAT must notify the applicant of its decision, including details of:^[371]

• the amount of assistance

• the purpose for which the assistance is awarded

• any conditions to which the award is subject

• the person or persons to whom assistance is payable

• any other order made by the Tribunal.

Review of decisions

15.202 Any person whose ‘interests are affected’ can apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a final VOCAT decision.^[372] Reviews may relate to:^[373]

• VOCAT refusing to make an award of assistance

• the amount of assistance awarded

• VOCAT refusing to vary an award

• the amount of assistance awarded when varying an award

• a decision that a person is required to make a refund to VOCAT

• the amount VOCAT determines must be refunded.

15.203 An application for review must be made within 28 days after the final decision is made.^[374]

15.204 A person may not apply for review of a final decision if the final decision was made by a judicial registrar as a delegate of the Tribunal.^[375] Instead, a review of a delegated Tribunal member decision is to be conducted as a hearing ‘de novo’—that is, heard at a new hearing as though the first decision had not been made.^[376]

15.205 In practice, those ‘affected’ by VOCAT decisions for the purposes of section 59 of the VOCAA are usually applicants, so reviews usually relate to matters like VOCAT refusing to make an award, the amount of an award or VOCAT refusing to vary an award.^[377]

15.206 There are relatively few reviews, with only eight applications for review of a VOCAT decision made to VCAT in the 2016–17 financial year.^[378]

15.207 Practice Direction No 1 of 2017—Response to Applications for Review of Decisions outlines the procedure to be followed by VOCAT upon receipt of a Notice of Review to VCAT which primarily relates to internal processes to be followed by VOCAT staff.^[379]

Responses

Transparency of decision making

15.208 Safe steps Family Violence Response Centre submitted that there is a lack of publicly available data in relation to decisions made by VOCAT.^[380] Moreover, the Victorian Council of Social Service submitted that applicants are often not given reasons for a decision if it is made ‘on the papers’ under section 33 of the VOCAA.^[381]

15.209 Knowmore submitted that the lack of transparency in VOCAT’s decision making can have a severe impact on victims of abuse who can be triggered and re-traumatised by the lack of clarity surrounding the process.^[382]

15.210 A number of stakeholders said that VOCAT should provide written reasons for its decisions, either at the request of the applicant^[383] or as a matter of course^[384] and that these reasons should be sufficiently specific.^[385]

15.211 In particular, stakeholders said that comprehensive reasons for decisions should be provided when decisions are made ‘on the papers’^[386] and in these circumstances, it should be clear who the decision maker is.^[387]

15.212 Moreover, some stakeholders stated that adequately de-identified written reasons should be published in order to improve transparency of the VOCAT process.^[388]

Accessibility of review of decisions

15.213 The Commission was told in submissions and during consultations, that the current review mechanism whereby all decisions (except those by a judicial registrar) are appealed to VCAT is a barrier for victims.^[389]

15.214 Stakeholders said the current review process is a barrier because:

• of the 28-day review window^[390]

• victims are often unwilling to seek a review of a VOCAT decision due to the cost of going to VCAT,^[391] including VCAT application fees,^[392] and the costs of hiring a lawyer^[393]

• victims are reluctant to expend more time and energy on another legal process^[394]

• VCAT is a ‘costs jurisdiction’, and there is a perception that VCAT can be ‘unsympathetic’ in relation to VOCAT matters^[395]

• there are few options to appeal unsatisfactory interim decisions.^[396]

15.215 It was suggested that the review process is ‘subject to the strength of the client to fight’^[397] and it is ‘unfair’ to place the responsibility on victims to ‘fix’ poor decision making by pursuing an appeal to VCAT.^[398]

15.216 VCAT submitted, however, that VCAT’s processes are informal and that many litigants do not have legal representation.^[399] VCAT also submitted that litigants can apply for VCAT fees to be waived, reduced or postponed.^[400]

15.217 One submission observed that while the current review mechanisms under the VOCAA allow victims to review decisions ‘of law’, there is no complaints mechanism to review VOCAT processes or procedures such as delayed decision making.^[401]

Discussion and recommendations

Reasons for decisions

15.218 Stakeholders raised concerns about the lack of publicly available data in relation to decisions made by VOCAT^[402] and the lack of transparency for applicants when decisions are made ‘on the papers’ under section 33 of the VOCAA.^[403] A number of stakeholders said that VOCAT should provide written reasons for its decisions, either at the request of the applicant^[404] or as a matter of course^[405] and that these reasons should be sufficiently specific.^[406]

15.219 The Commission notes that concerns about transparency and fairness in the VOCAT process are not new. In a submission to the then-Victorian Department of Justice’s 2009 review of victim compensation, the Federation of Community Legal Centres stated that there was a need for more transparency and equity in the VOCAT process.^[407] The then-Department of Justice also acknowledged in its discussion paper that ‘the decentralized nature of VOCAT across the state contributes to variations in processes and different trends in decision making’.^[408]

15.220 Similarly, Whittlesea Community Legal Service research found that the lack of written reasons for decisions made it difficult to gather evidence regarding the operation of VOCAT and therefore even more difficult to educate the legal profession about it.^[409]

15.221 As discussed in Chapter 8, a key rationale for recommending that the proposed scheme be overseen by an independent and dedicated decision maker is to improve the transparency and consistency of decision making. Transparency of decision making is a vital component of effective administrative decision making.^[410] In the context of state-funded financial assistance schemes, the importance of providing applicants with written reasons for all decisions is twofold:

• Providing written reasons enables victims to understand what the decision is, why a decision has been made, and what their rights of review or appeal are.

• Evidence from other jurisdictions in Australia suggests written reasons for decisions can be a source of recognition and validation for a victim, representing the state’s acknowledgment of their experience and the harms caused by the criminal act.^[411]

15.222 Furthermore, Geneviève Parent has observed that poor information about state-funded financial assistance can aggravate and complicate victims’ post-victimisation experiences.^[412]

15.223 Accordingly, the Commission considers that the proposed Act should require the scheme decision maker to provide written reasons for:

• decisions to accept or reject applications for immediate assistance, counselling, practical assistance and recovery payments

• any factors taken into account in determining the amount of the recovery (lump sum) payment^[413]

• reducing an award of assistance on the grounds that an applicant has received any other assistance, payment, compensation or damages from any other source in relation to the same criminal act, or requiring a refund if an award.

15.224 In the Commission’s view, the provision of written reasons should assist victims to understand their rights and entitlements and improve transparency in the proposed scheme’s decision making, as well as being a potential source of recognition and validation for a victim, representing the state’s acknowledgment of their experience and the harms caused by the criminal act.

Review of decisions

Recommendation—written reasons for decisions

81 The proposed Act should provide that the scheme decision maker must provide written reasons for decisions, in plain language, in relation to:

(a) accepting an application for immediate assistance, counselling, practical assistance or a recovery payment

(b) rejecting an application for immediate assistance, counselling, practical assistance or a recovery payment

(c) the factors taken into account in determining the amount of a recovery payment

(d) reducing an award of assistance on the grounds that a victim has received any other assistance, payment, compensation or damages from any other source in relation to the same criminal act, or

(e) requiring a refund of an award.

15.225 During consultations and in written submissions, stakeholders said that the current review mechanism can be a barrier for victims.^[414] These concerns appear to be reflected in the VCAT review figures—in 2016–17, only eight applications for review were made to VCAT.^[415]

15.226 In some other Australian jurisdictions, reviews proceed by way of an internal review first, followed by an external review.^[416] Data from other Australian schemes seems to demonstrate that internal review avenues provide victims with improved access to having decisions reviewed. For example, the Commission was told that in Queensland, reviews are sought in around two per cent of matters, equating to around 50 internal reviews each year.^[417] Higher review rates are also seen in New South Wales, where 378 applicants applied for an internal review of their decision in 2016–17. This is compared to the much smaller number of external reviews to VCAT (eight) in 2016–17.^[418]

15.227 In the Commission’s view, an internal review mechanism in the first instance would provide victims with a more accessible and less legalistic review process. The Commission considers that the proposed Act should enable an applicant to request an internal review of a decision by a more senior decision maker in the first instance, followed by the right to request an external review to VCAT.

15.228 In addition, and to ensure victims are aware of their review rights, the proposed Act should require the scheme decision maker to accompany all written reasons for decisions with information on avenues for review and timeframes for review.

15.229 Only one submission raised concerns about the 28-day review window.^[419] In this context, the Commission notes review provisions in other Australian jurisdictions which also provide 28 days in which a victim may request a review of a decision.^[420] Accordingly, the Commission considers that the proposed Act should provide that victims have 28 days to seek an internal review of a decision, and 28 days after the determination of an internal review, to seek an external review to VCAT.

Recommendations—review of decisions

82 The proposed Act should enable, at the request of an applicant:

(a) internal review of a decision by a more senior scheme decision maker

(b) following completion of the internal review process, an external review of the decision to the Victorian Civil and Administrative Tribunal.

83 The proposed Act should provide that the scheme decision maker must accompany all written reasons for decisions with information on the right of review and timeframes for review.

84 The proposed Act should provide that applicants have:

(a) 28 days to seek an internal review of a decision

(b) 28 days after an internal review of decision to seek an external review to the Victorian Civil and Administrative Tribunal.

Complaints process

15.230 One stakeholder submitted that while current VOCAA review mechanisms allow victims to review decisions ‘of law’, there is no mechanism to review VOCAT processes, procedures or the conduct of decision makers. ^[421]

15.231 The operation of VOCAT currently comes under The Magistrates’ Court Complaints Policy which sets out the process for complaints about court services, staff or facilities.^[422] In addition, complaints about the conduct or capacity of a Victorian judicial officer, including a magistrate sitting as a VOCAT Member, can be made to the Judicial Commission of Victoria.^[423]

15.232 However, as the Commission has recommended the establishment of a new scheme, led by an independent decision maker, the Commission considers that the proposed Act should provide for a complaints process, separate to a victim’s right to seek a review of a determination.

15.233 The Commission considers that the proposed Act should require the scheme decision maker to establish a complaints process consistent with section 19 of the Victims’ Charter Act 2006 (Vic), which states that if a person adversely affected by crime informs a victim services agency that they believe that the agency has not upheld the Charter principles, the agency should inform the person about the processes available for making a complaint.

Recommendation—complaints process

85 The proposed Act should provide that the scheme decision maker must establish a complaints process relating to the administration of the proposed scheme, including the conduct of any scheme staff. This complaints process should be separate and distinct to a victim’s right to review or appeal a decision and should be consistent with the principles governing responses to victims of crime under the Victims’ Charter Act 2006 (Vic).

1. See Chapter 11 for discussion of the purpose of the proposed Act.

   ↑

2. Victims of Crime Assistance Act 1996 (Vic) s 50(1). The VOCAA does not require someone to have been charged with or convicted of an offence for an award to be made: ss 50(1), (4).

   ↑

3. To support consideration of such factors, the VOCAA provides that an application must contain an authorisation for VOCAT to obtain any other evidence or any other document it considers that it requires in order to enable it to determine the application—for example, public hospital records or police reports: Victims of Crime Assistance Act 1996 (Vic) s 26(1)(c). In addition, VOCAT has broad investigative powers and broad powers to obtain information, including requiring other government departments or services to provide VOCAT with ‘any information or … documents relevant to the application’: Victims of Crime Assistance Act 1996 (Vic) ss 39–40. Information on the VOCAT website states that ‘Practitioners are advised to seek instructions regarding reporting and character and behaviour prior to lodging the application for assistance’: Victims of Crime Assistance Tribunal, Information to Provide to the Tribunal (2017) <www.vocat.vic.gov.au/information-provide-tribunal>.

   ↑

4. Ibid ss 52(b)–(c).

   ↑

5. Ibid s 52(a).

   ↑

6. Ibid s 53

   ↑

7. [2002] VCAT 532 (24 July 2002).

   ↑

8. Ibid [61].

   ↑

9. [2002] VCAT 1257 (7 November 2002).

   ↑

10. Ibid [10].

    ↑

11. Nichol v Victims of Crime Assistance Tribunal [2000] VCAT 840 (30 April 2000) [23].

    ↑

12. See, eg, CS v Victims of Crime Assistance Tribunal [2006] VCAT 1061 (9 June 2006).

    ↑

13. [2009] VCAT 1599 (10 August 2009).

    ↑

14. See, eg, Nichol v Victims of Crime Assistance Tribunal [2000] VCAT 840 (30 April 2000) [23].

    ↑

15. See, eg, TUN v Victims of Crime Assistance Tribunal [2009] VCAT 1599 (10 August 2009) [10], where VOCAT submitted that the circumstances of family violence did not constitute special circumstances because they ‘were nothing out of the ordinary or special; it was common for such victims to fear reprisals’. In making this submission, counsel for VOCAT was referencing VCAT’s decision in Nichol v Victims of Crime Assistance Tribunal [2000] VCAT 840 (30 April 2000) [23], in which it had held that for the purposes of section 52 of the VOCAA, what must be demonstrated for ‘special circumstances’ is for something to be ‘out of the ordinary’.

    ↑

16. See, eg, Haddara v Victims of Crime Assistance Tribunal [2010] VCAT 1133 (29 June 2010) where several attempts were made to report a matter direct to police. This can be contrasted with Sanders v Victims of Crime Assistance Tribunal [2003] VCAT 396 (3 March 2003) where VCAT determined on appeal that providing details orally to police at the scene of an alleged assault was sufficient to constitute a report to police.

    ↑

17. Sanders v Victims of Crime Assistance Tribunal [2003] VCAT 396 (3 March 2003) [42].

    ↑

18. Victims of Crime Assistance Act 1996 (Vic) s 52(a)(ii).

    ↑

19. Victims of Crime Assistance Tribunal, Guide to Completing the Application for Assistance Form (2016) 10.

    ↑

20. [2002] VCAT 1422 (6 December 2002).

    ↑

21. Ibid [21].

    ↑

22. [2000] VCAT 840 (30 April 2000).

    ↑

23. Ibid [21].

    ↑

24. [2014] VCAT 1002 (12 August 2014).

    ↑

25. Victims of Crime Assistance Act 1996 (Vic) s 54(a).

    ↑

26. Ibid s 54(c).

    ↑

27. Ibid s 54(d).

    ↑

28. Ibid s 54(e).

    ↑

29. Ibid s 54(f).

    ↑

30. Ibid s 54(a).

    ↑

31. Ibid. For related victims, VOCAT must have regard to the character, behaviour and attitude of the deceased primary victim of the act of violence; any obligations owed to the applicant by the deceased primary victim; the financial resources and financial needs of the applicant and any other related victim applicants; and the nature of the relationship: ibid s 54(b).

    ↑

32. See, eg, RUM v Victims of Crime Assistance Tribunal [2016] VCAT 367 (10 March 2016); TNX v Victims of Crime Assistance Tribunal [2014] VCAT 1234 (15 September 2014); Rajah v Victims of Crime Assistance Tribunal [2002] VCAT 1422 (6 December 2002); MK v Victims of Crime Assistance Tribunal [2013] VCAT 1582 (10 September 2013); CZG v Victims of Crime Assistance Tribunal [2018] VCAT 523 (5 April 2018) [80].

    ↑

33. See, eg, Kate Seear and Suzanne Fraser, ‘The Addict as Victim: Producing the “Problem” of Addiction in Australian Victims of Crime Compensation Laws’ (2014) 25 International Journal of Drug Policy 826, 831.

    ↑

34. Victims of Crime Assistance Act 1996 (Vic) s 54(a).

    ↑

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

    ↑

36. The intersection between section 54 considerations and the objective in section 1(2)(b) of the VOCAA was also discussed in Chapter 11.

    ↑

37. [2016] VCAT 367 (10 March 2016).

    ↑

38. Ibid [18].

    ↑

39. [2010] VCAT 455 (19 April 2010).

    ↑

40. Ibid [18]. However, VCAT did determine it would be appropriate to provide assistance for medical expenses: ibid [15] and [18].

    ↑

41. [2014] VCAT 1234 (15 September 2014).

    ↑

42. Ibid [22].

    ↑

43. [2001] VCAT 2028 (28 September 2001).

    ↑

44. [2018] VCAT 523 (5 April 2018).

    ↑

45. Ibid [80].

    ↑

46. Ibid.

    ↑

47. Ibid at [26], VCAT discussed the decision in White v Victims of Crime Assistance Tribunal [2010] VCAT 455 (19 April 2010), where the applicant, who had an extensive criminal history, had attempted to rescue another man who was being assaulted.

    ↑

48. CZG v Victims of Crime Assistance Tribunal [2018] VCAT 523 (5 April 2018) [27]. At [27], VCAT considered the seriousness of injuries caused by a criminal act might also lead to a decision in favour of the applicant despite a serious criminal history.

    ↑

49. Victims of Crime Assistance Act 1996 (Vic) s 54(c).

    ↑

50. Ibid s 54(d).

    ↑

51. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 8; Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws, Discussion Paper, Project No 104 (2013) 154. ‘Provocation’ under the VOCAA is distinguished from the defence of provocation that was available in homicide matters prior to 2005 in Victoria. The defence of provocation was abolished by the Crimes (Homicide) Act 2005 (Vic) and is no longer an available defence to homicide: Thomson Reuters Westlaw, Criminal Law, Investigation and Procedure Victoria (at 7 August 2017) [GPOCL.4000].

    ↑

52. Thomson Reuters Westlaw, Criminal Law, Investigation and Procedure Victoria (at 7 August 2017) [VCAA.54.20].

    ↑

53. [2018] VCAT 523 (5 April 2018).

    ↑

54. Ibid [58], [60].

    ↑

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

    ↑

56. [2009] VCAT 414 (12 March 2009).

    ↑

57. Ibid [19].

    ↑

58. Ibid.

    ↑

59. [2011] VCAT 1237 (8 July 2011).

    ↑

60. Ibid [53].

    ↑

61. Victims of Crime Assistance Act 1996 (Vic) s 54(e).

    ↑

62. For further discussion, see Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 109.

    ↑

63. Consultation 20 (Academics).

    ↑

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

    ↑

65. Submissions 15 (Merri Health Victims Assistance Program), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 38 (Ryan Carlisle Lawyers); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support).

    ↑

66. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service).

    ↑

67. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 39 (Victorian Aboriginal Legal Service), 44 (Aboriginal Family Violence Prevention Legal Service Victoria); Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 19 (RMIT Centre for Innovative Justice).

    ↑

68. Submissions 3 (Director of Public Prosecutions Victoria), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 37 (safe steps Family Violence Response Centre); Consultation 4 (Victim, Witness and Court Support).

    ↑

69. Submissions 14 (Inner Melbourne Community Legal), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 38 (Ryan Carlisle Thomas Lawyers), 43 (knowmore).

    ↑

70. Consultation 2 (Legal Professionals—Private Practice). See also submission 37 (safe steps Family Violence Response Centre).

    ↑

71. Submission 24 (Darebin Community Legal Centre); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres).

    ↑

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

    ↑

73. Ibid.

    ↑

74. Submission 14 (Inner Melbourne Community Legal).

    ↑

75. Submissions 15 (Merri Health Victims Assistance Program), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 38 (Ryan Carlisle Thomas Lawyers); Consultation 4 (Victim, Witness and Court Support).

    ↑

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

    ↑

77. Submissions 10 (Eastern Metropolitan Regional Family Violence Partnership), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service).

    ↑

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

    ↑

79. Submission 24 (Darebin Community Legal Centre).

    ↑

80. Submission 31 (Victorian Council of Social Service); Consultation 7 (Family Violence and Advocacy Organisations).

    ↑

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

    ↑

82. Submission 24 (Darebin Community Legal Centre).

    ↑

83. Submission 10 (Eastern Metropolitan Regional Family Violence Partnership).

    ↑

84. Submission 39 (Victorian Aboriginal Legal Service); Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 19 (RMIT Centre for Innovative Justice).

    ↑

85. Submissions 15 (Merri Health Victims Assistance Program), 51 (Law Institute of Victoria); Consultations 4 (Victim, Witness and Court Support), 15 (Regional Consultation—Ballarat Victim Support Agencies).

    ↑

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

    ↑

87. Submission 24 (Darebin Community Legal Centre).

    ↑

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

    ↑

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

    ↑

90. Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 19 (RMIT Centre for Innovative Justice).

    ↑

91. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 39 (Victorian Aboriginal Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies).

    ↑

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

    ↑

93. Ibid.

    ↑

94. Ibid.

    ↑

95. Ibid.

    ↑

96. Ibid; Consultation 13 (Regional Consultation—Mildura Legal Professionals).

    ↑

97. Submission 39 (Victorian Aboriginal Legal Service).

    ↑

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

    ↑

99. Ibid.

    ↑

100. Submission 43 (knowmore).

     ↑

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

     ↑

102. Submission 43 (knowmore).

     ↑

103. Ibid.

     ↑

104. Victims of Crime Assistance Act 1996 (Vic) s 52(a)(i).

     ↑

105. Submissions 3 (Director of Public Prosecutions Victoria), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 37 (safe steps Family Violence Response Centre); Consultation 4 (Victim, Witness and Court Support).

     ↑

106. Submission 43 (knowmore).

     ↑

107. Consultation 9 (Domestic Violence Victoria Members).

     ↑

108. Ibid.

     ↑

109. Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

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

     ↑

111. Submissions 13 (Adviceline Injury Lawyers), 41 (Springvale Monash Legal Service); Consultation 7 (Family Violence and Advocacy Organisations).

     ↑

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

     ↑

113. Submissions 18 (cohealth), 26 (Hume Riverina Community Legal Service).

     ↑

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

     ↑

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

     ↑

116. Submissions 14 (Inner Melbourne Community Legal), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

117. Submission 14 (Inner Melbourne Community Legal).

     ↑

118. Submission 41 (Springvale Monash Legal Service).

     ↑

119. Submission 51 (Law Institute of Victoria); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

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

     ↑

121. Ibid.

     ↑

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

     ↑

123. Ibid.

     ↑

124. Submission 18 (cohealth).

     ↑

125. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria). Victim Impact Statements are voluntary statements made by victims to explain the effects of crime on them which can be submitted to the court during the sentencing phase of a criminal trial as per the Sentencing Act 1991 (Vic) s 8K.

     ↑

126. Submissions 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service).

     ↑

127. Submissions 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service).

     ↑

128. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

129. Ibid.

     ↑

130. Ibid.

     ↑

131. Submissions 24 (Darebin Community Legal Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

132. Submission 24 (Darebin Community Legal Centre).

     ↑

133. Submission 30 (CASA Forum); Consultations 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group), 19 (RMIT Centre for Innovative Justice).

     ↑

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

     ↑

135. Ibid.

     ↑

136. Submissions 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service); Consultations 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 9 (Domestic Violence Victoria Members), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

137. Submissions 7 (Dr Kate Seear et al), 46 (Victoria Legal Aid); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

138. Submissions 15 (Merri Health Victims Assistance Program). See also Submissions 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultations 4 (Victim, Witness and Court Support), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

139. Consultation 9 (Domestic Violence Victoria Members).

     ↑

140. Submissions 7 (Dr Kate Seear et al), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 46 (Victoria Legal Aid); Consultations 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

141. Submissions 24 (Darebin Community Legal Centre), 46 (Victoria Legal Aid); Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

142. Submission 27 (Name withheld). See also submission 15 (Merri Health Victims Assistance Program); Consultation 7 (Family Violence and Advocacy Organisations).

     ↑

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

     ↑

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

     ↑

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

     ↑

146. Submission 7 (Dr Kate Seear et al). See also submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

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

     ↑

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

     ↑

150. Submissions 24 (Darebin Community Legal Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

151. Submission 24 (Darebin Community Legal Centre).

     ↑

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

     ↑

153. Ibid.

     ↑

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

     ↑

155. Submissions 5 (Anglicare Victoria Victims Assistance Program), 15 (Merri Health Victims Assistance Program); Consultation 4 (Victim, Witness and Court Support).

     ↑

156. Submission 46 (Victoria Legal Aid).

     ↑

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

     ↑

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

     ↑

159. Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

160. Ibid.

     ↑

161. Consultation 20 (Academics).

     ↑

162. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

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

     ↑

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

     ↑

165. Consultations 9 (Domestic Violence Victoria Members), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

166. Submission 39 (Victorian Aboriginal Legal Service); Consultation 5 (Victim, Witness and Court Support).

     ↑

167. Submissions 14 (Inner Melbourne Community Legal), 24 (Darebin Community Legal Centre), 31 (Victorian Council of Social Service), 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 43 (knowmore), 46 (Victoria Legal Aid); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 15 (Regional Consultation—Ballarat Victim Support Agencies), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

168. Submission 31 (Victorian Council of Social Service); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

169. Consultations 7 (Family Violence and Advocacy Organisations), 19 (RMIT Centre for Innovative Justice).

     ↑

170. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

172. Submission 26 (Hume Riverina Community Legal Service); Consultation 19 (RMIT Centre for Innovative Justice).

     ↑

173. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

174. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

175. Ibid.

     ↑

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

     ↑

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

     ↑

178. Submissions 24 (Darebin Community Legal Centre), 39 (Victorian Aboriginal Legal Service).

     ↑

179. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

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

     ↑

181. Consultation 20 (Academics).

     ↑

182. Submission 43 (knowmore).

     ↑

183. Consultations 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

184. Submission 18 (cohealth).

     ↑

185. Submission 14 (Inner Melbourne Community Legal).

     ↑

186. Submissions 7 (Dr Kate Seear et al), 18 (cohealth), 31 (Victorian Council of Social Service), 41 (Springvale Monash Legal Service), 46 (Victoria Legal Aid); Consultation 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

187. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

188. Submissions 7 (Dr Kate Seear et al), 41 (Springvale Monash Legal Service).

     ↑

189. Ibid.

     ↑

190. Consultation 20 (Academics).

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

196. Ibid.

     ↑

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

     ↑

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

     ↑

199. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

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

     ↑

201. Submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

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

     ↑

204. Submission 14 (Inner Melbourne Community Legal).

     ↑

205. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

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

     ↑

207. Submission 41 (Springvale Monash Legal Service).

     ↑

208. Ibid.

     ↑

209. Submissions 7 (Dr Kate Seear et al), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

     ↑

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

     ↑

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

     ↑

212. Submissions 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

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

     ↑

214. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service).

     ↑

215. Submission 30 (CASA Forum).

     ↑

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

     ↑

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

     ↑

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

     ↑

219. Submissions 3 (Director of Public Prosecutions Victoria), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 12 (Regional Consultation—Mildura Victim Support Agencies), 19 (RMIT Centre for Innovative Justice).

     ↑

220. Submissions 13 (Adviceline Injury Lawyers), 41 (Springvale Monash Legal Service); Consultation 7 (Family Violence and Advocacy Organisations).

     ↑

221. This was discussed in detail in Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 105.

     ↑

222. See, eg, 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, relating to delayed reporting in historical child sexual abuse; Australian Institute of Family Studies and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating and Evidence-based Resource for Police and Legal Practitioners (2017) 4, relating to reasons why victims of sexual offences often delay reporting a crime to police.

     ↑

223. Australian Institute of Criminology, Non-disclosure of Violence in Australian Indigenous Communities, Trends and Issues in Crime and Criminal Justice No 405 (2011) 6; Clear Horizon Consulting, Evaluation of the Koori Family Violence Police Protocols: Ballarat, Darebin and Mildura (Victoria Police, 2015) 3.

     ↑

224. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6; 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.

     ↑

225. Sue Salthouse and Carolyn Frohmader, ‘Double the Odds—Domestic Violence and Women with Disabilities’ (Paper presented at the Home Truths Conference, Melbourne, 15–17 September 2004) <http://wwda.org.au/issues/viol/viol2001/odds/>; Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services, Final Report (2016) 59.

     ↑

226. See, eg, Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 119.

     ↑

227. Victims Rights and Support Act 2013 (NSW) s 44(c); Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 31(3)–(4); Victims of Crime Assistance Act 2009 (Qld) ss 81(1)(a)(ii), (2).

     ↑

228. Submission 10 (Eastern Metropolitan Regional Family Violence Partnership).

     ↑

229. See Chapter 11 for the purpose and objectives of the proposed Act and scheme.

     ↑

230. Submissions 14 (Inner Melbourne Community Legal), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria).

     ↑

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

     ↑

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

     ↑

233. Submissions 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 41 (Springvale Monash Legal Service); Consultations 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 9 (Domestic Violence Victoria members), 13 (Regional Consultation—Mildura Legal Professionals).

     ↑

234. Submissions 7 (Dr Kate Seear et al), 46 (Victoria Legal Aid); Consultation 3 (Legal Professionals—Community Legal Centres).

     ↑

235. Submissions 15 (Merri Health Victims Assistance Program), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria); Consultations 4 (Victim, Witness and Court Support), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

236. Consultation 9 (Domestic Violence Victoria members).

     ↑

237. Submissions 7 (Dr Kate Seear et al), 24 (Darebin Community Legal Centre), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 46 (Victoria Legal Aid); Consultations 10 (Regional Consultation—Morwell Victim Support Agencies), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

238. Kate Seear and Suzanne Fraser, ‘The Addict as Victim: Producing the “Problem” of Addiction in Australian Victims of Crime Compensation Laws’ (2014) 25 International Journal of Drug Policy 826, 830.

     ↑

239. Julie Stubbs and Jane Wangmann, ‘Competing Conceptions of Victims of Domestic Violence Within Legal Processes’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave McMillan, 2015) 107.

     ↑

240. Geneviève Parent, ‘When Crime Pays: The Politics of Crime, Law, and Victim Compensation in Quebec’ (Paper presented at the Canadian Political Science Association Conference, Toronto, 1–3 June 2006) 8.

     ↑

241. David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Studies 242, 248.

     ↑

242. Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

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

     ↑

244. Consultation 20 (Academics).

     ↑

245. See, eg, Victims Rights and Support Act 2013 (NSW) s 44(1); Victims of Crime Assistance Act 2009 (Qld) s 80(1); Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 45, 47; Criminal Injuries Compensation Act 2003 (WA) s 41(a).

     ↑

246. Academics have observed that although the underlying philosophy of victim compensation schemes has always relied on a differentiation between ‘deserving’ and ‘undeserving’ victims, this philosophy becomes problematic because it is confounded by the reality of criminal victimisation—the fact that many victims have also been offenders. See, eg, David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Studies 242, 258.

     ↑

247. As stated by Njeri Mathis Rutledge, the goal of a state-funded financial assistance scheme should be victim assistance and accordingly, any requirements that ‘do not advance the primary goal of victim assistance should be dismantled’: Njeri Mathis Rutledge, ‘Looking a Gift Horse in the Mouth—the Underutilization of Crime Victim Compensation Funds by Domestic Violence Victims’ (2011) 19 Duke Journal of Gender Law and Policy 223, 226.

     ↑

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

     ↑

249. Submission 39 (Victorian Aboriginal Legal Service); Consultation 4 (Victim, Witness and Court Support).

     ↑

250. Submissions 14 (Inner Melbourne Community Legal), 24 (Darebin Community Legal Centre), 31 (Victorian Council of Social Service), 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 43 (knowmore), 46 (Victoria Legal Aid); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 15 (Regional Consultation—Ballarat Victim Support Agencies), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

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

     ↑

252. Submission 26 (Hume Riverina Community Legal Service); Consultation 19 (RMIT Centre for Innovative Justice).

     ↑

253. Consultations 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

254. Submission 18 (cohealth).

     ↑

255. Some jurisdictions have behaviour considerations beyond criminal behaviour, including whether behaviour directly or indirectly contributed to the injury or death sustained by a victim (Victims Rights and Support Act 2013 (NSW) s 44) or whether an applicant’s behaviour contributed to their injury or death (Criminal Injuries Compensation Act 2003 (WA) s 41(a)).

     ↑

256. Victims of Crime Assistance Act 2009 (Qld) s 80(1).

     ↑

257. Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 45, 47.

     ↑

258. While not reflected in the Bill, the intention of the Commonwealth Government to exclude some victims of crime from the proposed redress scheme as a result of past criminal convictions was addressed in Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018) 38.

     ↑

259. Ibid 40.

     ↑

260. Alliance for Forgotten Australians, Submission No 2 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 16 January 2018, 4.

     ↑

261. Knowmore, Submission No 31 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 2 February 2018, 8.

     ↑

262. Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018) 38.

     ↑

263. Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 4.

     ↑

264. Media reports in February 2018 suggested that the Commonwealth Government ‘will reconsider its plan to bar sexual abuse survivors with serious criminal histories from accessing the national redress scheme amid mounting pressure from legal and mental health experts’. See, eg, Amy McNeilage, ‘Coalition to Rethink Plan to Bar Criminals from Child Sexual Abuse Redress Scheme’ The Guardian (online), 19 February 2018 <www.theguardian.com/australia-news/2018/feb/19/coalition-to-rethink-plan-to-bar-criminals-from-child-sex-abuse-redress-scheme>. As at 28 May 2018, the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth) and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 (Cth) had not yet been passed.

     ↑

265. See, eg, James Ogloff et al, Child Sexual Abuse and Subsequent Offending and Victimisation: A 45 Year Follow-Up Study, Trends and Issues in Crime and Criminal Justice No 440 (Australian Institute of Criminology, 2012) 5; Karin Derkley, Spiral of Circumstances Sends Women to Prison (8 March 2018) <www.liv.asn.au/Staying-Informed/LIJ/LIJ/March-2018/Spiral-of-circumstances-sends-women-to–prison>.

     ↑

266. See, eg, Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 4.

     ↑

267. Submissions 14 (Inner Melbourne Community Legal), 24 (Darebin Community Legal Centre), 31 (Victorian Council of Social Service), 38 (Ryan Carlisle Thomas Lawyers), 39 (Victorian Aboriginal Legal Service), 43 (knowmore), 46 (Victoria Legal Aid); Consultations 2 (Legal Professionals – Private Practice), 3 (Legal Professionals – Community Legal Centres), 4 (Victim, Witness and Court Support), 11 (Regional Consultation – Victoria Legal Aid – Gippsland), 15 (Regional Consultation – Ballarat Victim Support Agencies), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

     ↑

268. Submission 26 (Hume Riverina Community Legal Service); Consultation 19 (RMIT Centre for Innovative Justice).

     ↑

269. Senate Community Affairs Legislation Committee, Parliament of Australia, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] (March 2018) 40.

     ↑

270. Ibid 38.

     ↑

271. Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 4.

     ↑

272. See, eg, Nguyen v Victims of Crime Assistance Tribunal [2001] VCAT 2028 (28 September 2001) [29]–[30] where VOCAT made a ‘modest’ award for medical expenses and clothing replacement.

     ↑

273. Victims of Crime Assistance Act 1996 (Vic) s 54(a). See also Kate Seear and Suzanne Fraser, ‘The Addict as Victim: Producing the “Problem” of Addiction in Australian Victims of Crime Compensation Laws’ (2014) 25 International Journal of Drug Policy 826, 829.

     ↑

274. Kate Seear and Suzanne Fraser, ‘The Addict as Victim: Producing the “Problem” of Addiction in Australian Victims of Crime Compensation Laws’ (2014) 25 International Journal of Drug Policy 826, 833.

     ↑

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

     ↑

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

     ↑

277. Consultation 20 (Academics).

     ↑

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

     ↑

279. Ibid.

     ↑

280. Ibid.

     ↑

281. See, eg, Community Legal Centres NSW, Submission to New South Wales Department of Attorney General and Justice, Review of NSW’s Victims Compensation Scheme, 30 April 2012, 47; Smart Justice, Better Support for Victims of Crime, Factsheet (2010).

     ↑

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

     ↑

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

     ↑

284. Kate Seear and Suzanne Fraser, ‘The Addict as Victim: Producing the “Problem” of Addiction in Australian Victims of Crime Compensation Laws’ (2014) 25 International Journal of Drug Policy 826, 827.

     ↑

285. Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23 (18 November 2010) [55].

     ↑

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

     ↑

287. The purpose and objectives of the proposed Act and scheme are outlined in Chapter 11.

     ↑

288. Submissions 41 (Springvale Monash Legal Service, 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 3 (Legal Professionals—Community Legal Centres), 11 (Regional Consultation—Victoria Legal Aid—Gippsland). The potential for victim blaming is evident in Mendez v Victims of Crime Assistance Tribunal where both VOCAT and VCAT found the victim had ‘provoked’ the assault by her boyfriend, even though VCAT subsequently found that the actions of her boyfriend ‘outweighed’ her provocation due his subsequent violence towards her: Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) [53].

     ↑

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

     ↑

290. Submission 41 (Springvale Monash Legal Service).

     ↑

291. Linda Jurevic, ‘Between a Rock and a Hard Place: Women Victims of Domestic Violence and the Western Australian Criminal Injuries Compensation Act’ (1996) 3(2) Murdoch University Electronic Journal of Law.

     ↑

292. The defence of provocation was abolished in Victoria by the Crimes (Homicide) Act 2005 (Vic) and is no longer an available defence to homicide. See, eg, Thomson Reuters Westlaw, Criminal Law, Investigation and Procedure Victoria (at 7 August 2017) [GPOCL.4000].

     ↑

293. David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Studies 242, 265.

     ↑

294. Ibid.

     ↑

295. The purpose and objectives of the proposed Act and scheme are outlined in Chapter 11.

     ↑

296. For example, a threat to kill by the applicant would constitute a relevant criminal offence that may have a nexus with the act of violence.

     ↑

297. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) 941.

     ↑

298. See, eg, Victims’ Rights and Support Act 2013 (NSW) s 44(1)(d).

     ↑

299. Criminal Injuries Compensation Act 2003 (WA) s 36.

     ↑

300. Robert Guthrie, ‘Criminal Injuries Compensation for Victims of Family and Domestic Violence’ (Paper Presented at John Curtin Institute of Public Policy Seminar, 19 May 2017) 5–6.

     ↑

301. Ibid.

     ↑

302. Submissions 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

303. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

305. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010) 941.

     ↑

306. As discussed in Chapter 13, the decision maker under the proposed scheme will also retain a general discretion to make any payments to any other person for the benefit of the applicant wholly as a lump sum, partly as a lump sum, partly by instalments or wholly by instalments, as is currently the case under section 55 of the VOCAA.

     ↑

307. Victims of Crime Assistance Act 1996 (Vic) ss 52(b)–(c).

     ↑

308. Ibid s 32(1).

     ↑

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

     ↑

310. Victims of Crime Assistance Act 1996 (Vic) s 41(2).

     ↑

311. Ibid s 56(1).

     ↑

312. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 23 (Johnstone & Reimer Lawyers), 24 (Darebin Community Legal Centre), 27 (Name withheld), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 37 (safe steps Family Violence Response Centre), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 43 (knowmore), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 6 (Victims’ Advocacy Organisations), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies), 25 (Children’s Court of Victoria).

     ↑

313. Submissions 38 (Ryan Carlisle Thomas Lawyers), 49 (Victims of Crime Commissioner, Victoria); Consultation 7 (Family Violence and Advocacy Organisations).

     ↑

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

     ↑

315. Submissions 14 (Inner Melbourne Community Legal), 37 (safe steps Family Violence Response Centre), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultations 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members).

     ↑

316. Submissions 23 (Johnstone & Reimer Lawyers), 24 (Darebin Community Legal Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria); Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

317. Submissions 23 (Johnstone & Reimer Lawyers), 37 (safe steps Family Violence Response Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria).

     ↑

318. Submissions 15 (Merri Health Victims Assistance Program), 23 (Johnstone and Reimer Lawyers), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

319. Submissions 5 (Anglicare Victoria Victims Assistance Program), 18 (cohealth); Consultation 4 (Victim, Witness and Court Support).

     ↑

320. Submissions 17 (Centre for Excellence in Child & Family Welfare), 41 (Springvale Monash Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria); Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

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

     ↑

322. Submissions 41 (Springvale Monash Legal Service), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

323. Submission 43 (knowmore).

     ↑

324. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

326. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 23 (Johnstone & Reimer Lawyers), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 7 (Family Violence and Advocacy Organisations), 8 (Victims Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

327. Submission 30 (CASA Forum).

     ↑

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

     ↑

329. Consultations 2 (Legal Professionals—Private Practice), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

330. Submissions 38 (Ryan Carlisle Thomas Lawyers), 49 (Victims of Crime Commissioner); Consultations 3 (Legal Professionals—Community Legal Centres), 7 (Family Violence and Advocacy Organisations).

     ↑

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

     ↑

332. Submissions 14 (Inner Melbourne Community Legal), 24 (Darebin Community Legal Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultations 6 (Victims’ Advocacy Organisations), 19 (RMIT Centre for Innovative Justice).

     ↑

333. Submission 14 (Inner Melbourne Community Legal); Consultations 16 (Regional Consultation—Ballarat Legal Professionals), 23 (Community Safety Trustee, Victoria).

     ↑

334. Consultation 14 (Chief Magistrates’ Family Violence Taskforce).

     ↑

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

     ↑

336. Submission 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria). In Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), it was noted that family violence applications are often complex. In Consultation 13 (Regional Consultation—Mildura Legal Professionals), the Commission was told that a rise in complex injuries and diverse medical treatments now also contribute to delays.

     ↑

337. Submissions 27 (Name withheld), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria).

     ↑

338. Submissions 14 (Inner Melbourne Community Legal), 51 (Law Institute of Victoria).

     ↑

339. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 35 (Brockway Legal), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

340. Submissions 14 (Inner Melbourne Community Legal), 18 (cohealth), 27 (Name withheld).

     ↑

341. Submissions 24 (Darebin Community Legal Centre), 49 (Victims of Crime Commissioner, Victoria).

     ↑

342. Submission 24 (Darebin Community Legal Centre).

     ↑

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

     ↑

344. Submissions 5 (Anglicare Victoria Victims Assistance Program), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria).

     ↑

345. Submissions 5 (Anglicare Victoria Victims Assistance Program), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria).

     ↑

346. Submission 5 (Anglicare Victoria Victims Assistance Program); Consultation 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

347. Consultations 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies).

     ↑

348. Submissions 6 (Forgetmenot Foundation Inc.), 14 (Inner Melbourne Community Legal), 51 (Law Institute of Victoria), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultation 14 (Chief Magistrates’ Family Violence Taskforce).

     ↑

349. Submission 14 (Inner Melbourne Community Legal).

     ↑

350. Ibid.

     ↑

351. Submission 27 (Name withheld).

     ↑

352. Submissions 15 (Merri Health Victims Assistance Program), 27 (Name withheld), 31 (Victorian Council of Social Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria); Consultations 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 15 (Regional Consultation—Ballarat Victim Support Agencies), 20 (Academics).

     ↑

353. Submissions 4 (Crime Victims Support Association), 57 (Victims of Crime Assistance League); Consultation 6 (Victims’ Advocacy Organisations).

     ↑

354. Submission 4 (Crime Victims Support Association).

     ↑

355. Submission 57 (Victims of Crime Assistance League).

     ↑

356. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 46–8.

     ↑

357. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology, 1999) 69.

     ↑

358. Geneviève Parent, ‘When Crime Pays: The Politics of Crime, Law, and Victim Compensation in Quebec’ (Paper presented at the Canadian Political Science Association Conference, Toronto, 1–3 June 2006) 10.

     ↑

359. Maarten Kunst et al, ‘Performance Evaluations and Victim Satisfaction with State Compensation for Violent Crime: A Prospective Study’ (2015) 32(19) Journal of Interpersonal Violence 1, 10–11.

     ↑

360. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 46.

     ↑

361. Department of Justice (NSW), Annual Report 2015–2016 (2016) 24.

     ↑

362. Consultation 1 (Victim Assist Queensland).

     ↑

363. See discussion in Chapter 8 regarding improved timeliness of decision making in administrative schemes in Australia.

     ↑

364. VOCAT requests that the applicant file all additional documentation in support of their application and a completed Statement of Claim form within four months of receiving VOCAT’s acknowledgment letter: Victims of Crime Assistance Tribunal, Determining an Application—Supporting Documentation (2016) <www.vocat.vic.gov.au/determining-application/supporting-documentation>.

     ↑

365. Victims of Crime Assistance Act 1996 (Vic) s 32(1).

     ↑

366. In Tasmania, an application for an award is to be determined within three years of the date of the application: Victims of Crime Assistance Act 1976 (Tas) s 7(1)(a).

     ↑

367. Submissions 4 (Crime Victims Support Association), 57 (Victims of Crime Assistance League); Consultation 6 (Victims’ Advocacy Organisations).

     ↑

368. Submission 4 (Crime Victims Support Association).

     ↑

369. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 23 (Johnstone & Reimer Lawyers), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 7 (Family Violence and Advocacy Organisations), 8 (Victims’ Representatives—Victims of Crime Consultative Committee), 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

     ↑

370. Victims of Crime Assistance Act 1996 (Vic) s 33(1).

     ↑

371. Ibid s 33(2).

     ↑

372. Ibid s 59(1).

     ↑

373. Ibid ss 59(1)(a)–(e).

     ↑

374. Ibid s 59(2).

     ↑

375. Ibid s 59(1A).

     ↑

376. Ibid s 59A(2)

     ↑

377. See, eg, Ractliffe v Victims of Crime Assistance Tribunal [2015] VCAT 205 (4 March 2015) relating to a review of VOCAT’s refusal to pay $405 for an occupational therapy assessment.

     ↑

378. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 61. Of these applications for review to VCAT, two resulted in the original order set aside and a new order made on review; one order was varied on review; two orders were affirmed on review; one application for assistance was remitted to VCAT for determination; and two applications for review were struck out, withdrawn or abandoned.

     ↑

379. Victims of Crime Assistance Tribunal, Practice Direction No 1 of 2017—Response to Applications for Review of Decisions, 18 May 2017, 2.

     ↑

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

     ↑

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

     ↑

382. Submission 43 (knowmore).

     ↑

383. Submission 14 (Inner Melbourne Community Legal).

     ↑

384. Submissions 31 (Victorian Council of Social Service), 41 (Springvale Monash Legal Service), 43 (knowmore).

     ↑

385. Submission 19 (Schembri & Co Lawyers).

     ↑

386. Submission 14 (Inner Melbourne Community Legal). See also submission 43 (knowmore).

     ↑

387. Submission 14 (Inner Melbourne Community Legal).

     ↑

388. Submissions 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre), 41 (Springvale Monash Legal Service), 43 (knowmore).

     ↑

389. Submissions 5 (Anglicare Victoria Victims Assistance Program), 38 (Ryan Carlisle Thomas Lawyers); Consultations 3 (Legal Professionals—Community Legal Centres), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

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

     ↑

391. Consultations 2 (Legal Professionals—Private Practice), 4 (Victim, Witness and Court Support).

     ↑

392. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑

394. Consultations 3 (Legal Professionals—Community Legal Centres), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

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

     ↑

396. Ibid.

     ↑

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

     ↑

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

     ↑

399. Submission 2 (Victorian Civil and Administrative Tribunal).

     ↑

400. Ibid.

     ↑

401. Submission 27 (Name withheld).

     ↑

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

     ↑

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

     ↑

404. Submission 14 (Inner Melbourne Community Legal).

     ↑

405. Submissions 31 (Victorian Council of Social Service), 41 (Springvale Monash Legal Service), 43 (knowmore).

     ↑

406. Submission 19 (Schembri & Co Lawyers).

     ↑

407. Federation of Community Legal Centres, Submission to Victorian Department of Justice, Reviewing Victims of Crime Compensation: Sentencing Orders and State-Funded Awards, February 2010, 7.

     ↑

408. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 42.

     ↑

409. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 27.

     ↑

410. Law Institute of Victoria, A User’s Guide to Administrative Decision-making (2013) 7–8.

     ↑

411. In Chapter 10, Statements of Reasons were discussed in relation to their potentially therapeutic effect.

     ↑

412. Geneviève Parent, ‘When Crime Pays: The Politics of Crime, Law, and Victim Compensation in Quebec’ (Paper presented at the Canadian Political Science Association Conference, Toronto, 1–3 June 2006) 11.

     ↑

413. Factors required to be considered by the proposed scheme decision maker are outlined in Chapter 13.

     ↑

414. Submissions 5 (Anglicare Victoria Victims Assistance Program), 38 (Ryan Carlisle Thomas Lawyers); Consultations 3 (Legal Professionals—Community Legal Centres), 15 (Regional Consultation—Ballarat Victim Support Agencies), 16 (Regional Consultation—Ballarat Legal Professionals).

     ↑

415. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 61. Of these applications for review to VCAT, two resulted in the original order set aside and a new order made on review; one order was varied on review; two orders were affirmed on review; one application for assistance was remitted to VCAT for determination; and two applications for review were struck out, withdrawn or abandoned.

     ↑

416. In Queensland, an applicant may apply to the Queensland Civil and Administrative Tribunal for a review of the internal review decision: Victims of Crime Assistance Act 2009 (Qld) s 125(2). In New South Wales, an applicant may apply to the Administrative Decisions Tribunal for a review of a decision made by the Commissioner following an internal review: Victims Rights and Support Act 2013 (NSW) s 51(1).

     ↑

417. This figure is approximate, based on the percentage figure provided to the Commission during Consultation 1 (Victim Assist Queensland).

     ↑

418. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 61.

     ↑

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

     ↑

420. Victims Rights and Support Act 2013 (NSW) s 49(2); Victims of Crime (Financial Assistance Act) 2016 (ACT) s 92(2); Victims of Crime Assistance Act 2009 (Qld) s 124(2)(a).

     ↑

421. Submission 27 (Name withheld).

     ↑

422. Victims of Crime Assistance Tribunal, Complaints (2017) </www.vocat.vic.gov.au/contact-us/complaints>.

     ↑

423. Ibid.

     ↑