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Victims of Crime Assistance Act 1996: Report (html)

  • Posted on September 19, 2018

16. Interaction with other schemes and refund of awards

Introduction

16.1 This chapter considers and makes recommendations in relation to the interaction of the proposed state-funded financial assistance scheme (proposed scheme) with other compensation and assistance schemes, and the circumstances which may give rise to the refund of awards.

16.2 This chapter relates to the following matters specified in the supplementary terms of reference:

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

• whether the VOCAA recognises the appropriate people as victims

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

16.3 This chapter also relates to the objective outlined in the supplementary terms of reference that the state-funded financial assistance scheme be efficient and sustainable for the state.

Interaction with other compensation and financial assistance schemes

Current law

Sections 1(2)(c) and 16 of the VOCAA

16.4 As noted in Chapter 11, section 1(2)(c) of the VOCAA provides that one of the objectives of the Act is to allow victims recourse to financial assistance ‘where compensation for the injury cannot be obtained from the offender or other sources’.[1]

16.5 This provision operates in conjunction with section 16 of the VOCAA, which requires other entitlements to be taken into account by the Victims of Crime Assistance Tribunal (VOCAT) in determining the amount (if any) to be awarded to an applicant.[2]

16.6 Section 16 of the VOCAA specifically requires that in determining the amount (if any) to be awarded to an applicant, VOCAT:

• must take into account, and reduce the amount by the total amount of, any damages that the applicant has recovered at common law for the loss, expense or other matter for which assistance is sought from the Tribunal[3]

• must take into account, and reduce the amount by the total amount of, any compensation, assistance or payment of any other kind that the applicant has received for the loss, expense or other matter for which assistance is sought from the Tribunal[4]

• must take into account, and reduce the amount by any amount of, financial assistance that the applicant has been awarded or is eligible to be awarded under section 12 of the Transport (Compliance and Miscellaneous) Act 1983 in relation to the incident to which the application relates[5]

• may take into account, and reduce the amount by the total amount of:

• any compensation, assistance or payments of any kind under any scheme, whether statutory or non-statutory, including that managed by the Transport Accident Commission (TAC) and the Victorian WorkCover Authority (WorkCover) and that established by the Police Assistance Compensation Act 1968 and any predecessor of any such schemes[6]

• any payments under any insurance policy (including life and health insurance) or superannuation scheme[7]

• that the applicant has not received but is entitled to receive, or would be entitled to receive, if they applied for it or them, for the loss, expense or other matter for which assistance is sought from the Tribunal.[8]

16.7 In the case of special financial assistance, section 16 of the VOCAA also provides that VOCAT must not take into account any payments under any insurance policy (including life and health insurance) or superannuation scheme that the applicant has received, or has not received but is entitled to receive, or would be entitled to receive if they applied for them, for the loss, expense or other matter for which assistance is sought from the Tribunal.[9]

16.8 The Explanatory Memorandum to the Victims of Crime Assistance (Amendment) Bill 2000 (Vic) notes that the amendments to section 16 of the VOCAA were to ‘ensure that crimes compensation is a payer of last resort’.[10]

16.9 The Explanatory Memorandum also confirms that the intention of section 16 is that VOCAT:

• must offset any compensation or common law damages actually received by the applicant against any award made under the VOCAA

• may, but is not required to, reduce a VOCAT award to take into account the amount that an applicant is eligible to receive under other schemes, such as those administered by WorkCover or TAC or under any insurance policy or superannuation scheme

• must not reduce any award of special financial assistance on account of the applicant’s superannuation or insurance entitlements, but awards may still be reduced by any amount received for pain and suffering from statutory schemes such as those administered by WorkCover and TAC.[11]

16.10 To support VOCAT’s consideration of other entitlements or payments, 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 needs in order to determine the application[12]—for example, public hospital records or police reports. In addition, VOCAT has broad investigative powers,[13] 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’.[14]

16.11 In Krasauskas v Victims of Crime Assistance Tribunal[15] the Victorian Civil and Administrative Tribunal (VCAT) confirmed[16] that section 16 requires VOCAT to ‘first look at the award which it would otherwise make, and then reduce that possible award by the amounts mentioned in [section] 16’.[17] This approach confirms that VOCAT can only reduce amounts which are received or receivable ‘for the loss, expense or other matter’ for which assistance is sought from VOCAT, noting that section 16 does not have a broader application:

on its proper interpretation, s16 can only be used to reduce a possible award by a payment or benefit from another source “for the loss, expense or matter” for which application is made to VOCAT. “Loss, expense or other matter” is not referring to some general or global set of non-specific matters. It is a reference to the matters which may make up an award according to s13(2).[18]

16.12 VCAT observed that this interpretation may appear to be more specific than the more general objective in section 1(2)(c) of the VOCAA, but noted that such an approach still prevents ‘double counting’:

One must ask: which of these matters are the subject of application for assistance? My interpretation will still prevent “double counting”, where a benefit or payment from another source relates to the same loss, expense or matter for which assistance is sought from VOCAT. I accept that the purpose clause in s1 of the Act is worded in a different and perhaps broader way than s16. But, to my mind, the wording of s16 is clear and ought not to be read down in the light of the purpose clause. If Parliament had intended that s16 would operate in a broader way, it could easily have omitted the words “loss, expense or matter for which assistance is sought”.[19]

16.13 When applied to the circumstances of the applicants in Krasauskas v Victims of Crime Assistance Tribunal,[20] VCAT compared the purpose of the provisions enabling financial assistance for distress under the VOCAA with the relevant provisions of the Transport Accident Act 1986 (Vic) and determined that:

the nature of the s57 and s58 benefits [of the Transport Accident Act 1986 (Vic)] is to provide money to assist in the economic support of those who were economically dependent on the person killed in the transport accident. They are not benefits in respect of distress experienced by the family of the person who died.[21]

16.14 Accordingly, VCAT determined that the applicants were not barred from seeking assistance under the VOCAA for distress, simply because they were entitled to different types of TAC benefits unrelated to distress.[22]

16.15 In contrast, in Eades v Victims of Crime Assistance Tribunal,[23] VCAT determined that payments under section 92 of the Accident Compensation Act 1985 (Vic) relating to compensation for the death of a worker, were:

intended at least to some degree to provide a solatium that is compensation to a near relative for the distress suffered as a result of the death of the deceased … Hence, the lump sum paid under the [Accident Compensation Act] should be brought to account for the purposes of applying s16 of the VOCA Act.[24]

16.16 These cases demonstrate that, under the VOCAA, VOCAT must interrogate the specific nature of the other payments or benefits under different schemes to determine whether they relate to the same loss, expense or other matter for which assistance is sought from VOCAT.

Section 7(2) of the VOCAA

16.17 Despite the above sections of the VOCAA, which seek to limit VOCAT to an option of ‘last resort’, section 7(2) of the VOCAA nonetheless describes primary victims as those who are injured or die: [25]

• trying to arrest someone whom they believe on reasonable grounds has committed an act of violence

• trying to prevent the commission of an act of violence

• trying to aid or rescue someone whom they believe on reasonable rounds is a victim of an act of violence.

16.18 Given many of those who try to arrest an alleged perpetrator, prevent an act of violence or aid or rescue a victim of an act of violence are often ‘first responders’, such as paramedics or police officers attending incidents in the course of their employment, section 7 of the VOCAA appears to provide scope for the VOCAA to assist such workers, notwithstanding the existence of statutory workplace injury schemes in Victoria.[26] The VOCAA does not distinguish between those responding as members of the public, and those responding in the course of their employment.

16.19 In Smith v Victims of Crime Assistance Tribunal[27] counsel for the respondent (VOCAT) submitted that a broad interpretation of ‘aid’ under the VOCAA, such as giving first aid following an incident, is inappropriate as it ‘would mean any ambulance officer or para medic [sic] giving assistance, would be entitled as a primary victim, clearly not an intended consequence when the legislative history was considered’.[28]

16.20 While this case did not relate to the provision of aid by a first responder, counsel for the respondent (VOCAT) submitted that the applicant’s assistance ‘was no more than offering first aid. It was assistance given after the event.’[29] VCAT agreed with this interpretation, suggesting that ‘aid’ for the purposes of section 7(2)(c) discounts assistance provided ‘after the event’[30] and as such, could be interpreted as not enabling first responders, like paramedics or police, who provide assistance after an event, to apply for assistance under the VOCAA as primary victims.

16.21 However, the decision in Will v Victims of Crime Assistance Tribunal [31] raises some ambiguity about this interpretation of section 7 of the VOCAA. In that case, VCAT said:

Section 7(c) is designed to cover a person who comes to the aid of someone being attacked or if after the attack they immediately step in and do things to assist the victim, that is the sort of aid that Section 7(c) is looking at.[32]

16.22 Accordingly, while VCAT suggests in Will v Victims of Crime Assistance Tribunal that those who immediately step in after an incident to assist victims would be captured by section 7, potentially bringing section 7(2)(c) within the scope of first responders, VCAT also stated in the same case:

I agree with what Ms Crafti [counsel for VOCAT] has said that if one was to give the wide interpretation [of section 7] that has been suggested by Mr McKenna [counsel for the applicant] it would lead to perverse results. That is, it would lead to results where persons such as paramedics and doctors who suffered some psychological injury as a result of having to treat a patient would be able to claim pursuant to the Act, that is not the case.[33]

16.23 The decision in Will v Victims of Crime Assistance Tribunal [34] seems to accept that ‘aid’ can be provided after the event. In contrast, the decision in Smith v Victims of Crime Assistance Tribunal,[35] distinguishes assistance provided after the event with assistance provided by paramedics and doctors.

16.24 In its supplementary consultation paper, the Commission noted that any distinction between aid rendered to a victim at the time of an act of violence and assistance provided afterwards may be problematic given the intended purpose of section 7(2)(c) of the VOCAA, which appears to represent an aim to elevate people who are not direct victims of an act of violence to the status of primary victims in order to reward the behaviour of ‘good Samaritans’.[36] For example, Markus Dirk Dubber describes such provisions in crime victim compensation schemes as ‘an effort to encourage citizens to assist one another in times of need’.[37] In this context, the Commission suggested in the supplementary consultation paper that any distinction between aid rendered to a victim at the time of an act of violence and assistance provided afterwards may be undesirable.[38]

Independent Broad-Based Anti-Corruption Commission review of police applications to VOCAT (2013)

16.25 In 2013, the Independent Broad-Based Anti-Corruption Commission (IBAC) reviewed an investigation of the former Office of Police Integrity (OPI) regarding applications to VOCAT by Victoria Police officers.

16.26 The IBAC review confirmed a practice within sections of Victoria Police of applying to VOCAT for injuries incurred in the course of their duties, which IBAC stated ‘may be inappropriate and which may conflict with other processes such as WorkSafe compensation’.[39]

16.27 Publicly available information in relation to this IBAC review states that IBAC recommended Victoria Police consider relevant policy to ensure applications by police for VOCAT assistance are subject to independent review, and also recommended that the entitlements of police injured in the course of duty be clearly outlined by Victoria Police.[40] The IBAC report also states that issues relating to police applications to VOCAT were referred to both Victoria Police and the Secretary of the then-Department of Justice.[41]

16.28 There is no other publicly available information suggesting these matters were progressed further, either by Victoria Police or through legislative amendment.

Overview of other compensation, financial assistance or redress schemes

16.29 As outlined above, under section 16 of the VOCAA, VOCAT must take into account any compensation, assistance or payment of any other kind that the applicant has received for the loss, expense or other matter for which assistance is sought from the Tribunal. In addition, section 16 requires VOCAT to consider, in certain circumstances, other assistance that an applicant may be eligible to be awarded, or be entitled to receive, even where the applicant has not been awarded or received such payment.

16.30 Outlined below are some of the relevant schemes, and assistance available under such schemes, that may interact with VOCAT awards.[42]

WorkSafe

16.31 Victoria’s WorkCover Authority, known as WorkSafe Victoria,[43] has a number of statutory functions which include:[44]

• providing benefits to injured workers and helping them return to work

• enforcing Victoria’s occupational health and safety and accident compensation laws

• managing the Victorian workers compensation scheme.

16.32 WorkSafe Victoria provides a range of benefits to injured workers, including:[45]

• weekly payments

• medical and allied health treatment

• ambulance transport

• hospital treatment

• personal and household help

• impairment lump sums

• common law damages.

16.33 WorkSafe Victoria also provides a range of income support, lump sum compensation and reimbursement of expenses to dependents of workers who die as a result of a work-related injury.[46]

16.34 As WorkSafe Victoria may initiate criminal prosecution proceedings under relevant legislation,[47] some victims may be entitled to benefits from both WorkSafe Victoria and VOCAT.

The Transport Accident Commission (TAC)

16.35 The TAC was established under the Transport Accident Act 1986 (Vic), with its key functions being paying for treatment and support services for people injured in transport accidents, promoting road safety in Victoria and improving the state’s trauma system.[48]

16.36 The TAC covers transport accidents directly caused by the driving of a car, motorcycle, bus, train or tram.[49] The scheme operates on a no-fault basis, which means that anyone injured in a transport accident within Victoria (or interstate if in a Victorian-registered vehicle) is eligible to receive support services, irrespective of who caused the crash.[50] The TAC funds medical treatment for transport accident-related injuries for as long as it is necessary, including ambulance services, surgery and medical visits, medicines, therapies and nursing visits. Depending on the seriousness of the injury, TAC support may extend to income support, rehabilitation and disability services, return-to-work programs, attendant care, allowances for parents to visit dependent children in hospital, travel costs to and from medical appointments and equipment or aids, such as wheelchairs.[51]

16.37 As some transport accidents also involve criminal offences, such as culpable driving causing death or dangerous driving causing death or serious injury,[52] some victims of crime may be entitled to benefits or assistance from both TAC and VOCAT.

The proposed Commonwealth Redress Scheme for Institutional Child Sexual Abuse

16.38 In October 2017, the Commonwealth Government introduced 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).

16.39 The proposed Commonwealth Redress Scheme for Institutional Child Sexual Abuse (the proposed Commonwealth redress scheme) is intended to operate for a period of 10 years from 1 July 2018, providing three elements of redress to eligible survivors of institutional child sexual abuse:

1) a monetary payment of up to $150,000

2) access to counselling and psychological services

3) a direct personal response from responsible institutions at the request of a survivor.[53]

16.40 Both Bills were referred to the Senate’s Community Affairs Legislation Committee and the Committee’s report on both Bills was released in March 2018. In its report, the Community Affairs Legislation Committee recommended that both Bills be passed, and made a number of further recommendations in relation to the proposed redress scheme.[54]

16.41 As at 28 May 2018, all state and territory governments, with the exception of Western Australia, have committed to join the proposed scheme.[55] Subject to the passage of legislation, people who were sexually abused as children while in the care of relevant government or non-government institutions can apply for the redress scheme as of

1 July 2018.[56]

16.42 The Department of Social Services’ (DSS) (Commonwealth) submission to the Senate Community Affairs Legislation Committee Inquiry submitted that when working out the amount of a redress payment, the proposed Commonwealth redress scheme will deduct relevant prior payments made to a survivor from responsible institutions where such payments were made ‘in recognition of the harm caused by the abuse’.[57]

16.43 The DSS submitted that the proposed Commonwealth redress scheme will not deduct payments provided to victims to access counselling and psychological services or routine payments for treatment, or other expenses like medical or dental bills. The DSS also submitted that the proposed Commonwealth redress scheme will not take into account one-off payments for specific purposes that are not related to recognition of harm.[58]

16.44 As the proposed Commonwealth redress scheme is not yet implemented, it is not clear how the proposed scheme will interact with state-based financial assistance for crime victims. However, the Commission notes that the proposed Commonwealth redress scheme may interact with the VOCAA in two ways:

• Victims who have already received VOCAT awards may have such awards taken into consideration by the proposed redress scheme.[59]

• Victims who receive awards from the proposed redress scheme may have such awards taken into account by VOCAT, in accordance with section 16 of the VOCAA.

16.45 However, the Commission notes that many victims of child sexual abuse have not obtained financial assistance under the VOCAA because of issues relating to application time limits, difficulties fulfilling requirements to report matters to police, and complex transitional provisions under the VOCAA which impact applications relating to offences occurring prior to 2000.[60]

Family Violence Flexible Support Packages

16.46 Victoria’s family violence service system currently provides additional state-funded financial assistance for victims of family violence through family violence flexible support packages (FSPs). FSPs enable family violence services to access funds to provide victims with urgent and critical support tailored to their specific needs.[61] Flexible support packages can be for up to $7000, with an average cost of $3000.[62]

16.47 Financial assistance can be sought for safety expenses, housing, medical costs and a broad range of social, economic and community connectedness activities. Support available through Family Violence Flexible Support Packages may cross over with support available through VOCAT, for example, safety expenses or medical costs.

The National Disability Insurance Scheme

16.48 The National Disability Insurance Scheme (NDIS) provides people with a permanent

and significant disability with ‘reasonable and necessary supports they need to live an ordinary life’.[63]

16.49 Victims of crime who, as a result of a criminal act, sustain a permanent and significant disability may be eligible for supports from both a state-funded financial assistance scheme and the NDIS.

16.50 Where compensation or support is provided by other schemes, like a victim support or financial assistance scheme, NDIS participants would be required to provide the NDIS with information about compensation or supports that the NDIS covers, like personal care, to enable the National Disability Insurance Agency ‘to calculate the effect the compensation has on those supports’.[64]

Responses

16.51 In their joint submission, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that section 7(2) of the VOCAA:

makes it clear that a police officer or other first responder will be considered a primary victim of an act of violence if they are injured or die trying to arrest someone, attempting to prevent the commission of an act of violence, or trying to aid a victim of an act of violence.[65]

16.52 The submission from VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that there had been a recent increase in the number of applications received from emergency services and other first responder workers who have been injured in the course of their duties.[66]

16.53 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also stated that section 16 of the VOCAA, which requires that any award made by the Tribunal be reduced to take into account any amounts of compensation or other forms of assistance received (or that may be received), creates additional complexity and results in delays:

the complex interaction between VoCAT and other schemes that may provide overlapping services, in conjunction with the Tribunal’s legislative requirement to provide financial assistance as a last resort, can lead to delays in the finalisation of applications.[67]

16.54 In addition, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the intersection of the VOCAA objective in section 1(2)(c) with section 7 and section 16 raises issues of sustainability for VOCAT:

Section 1(2)(c) of the Act provides that one of the Act’s key objectives is to allow victims of crime to have recourse to VoCAT assistance where compensation for their injury cannot be obtained from the offender or other sources. The increasing number of applications being received by the Tribunal from emergency services and other similar workers—particularly those under s 7(1)—has serious implications for the sustainability of VoCAT where other assistance schemes such as WorkSafe are available and may provide more appropriate assistance for such individuals.[68]

16.55 Accordingly, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that navigating section 16 and section 7(2) of the VOCAA ‘can be a source of ambiguity for police officers, emergency services and similar applicants’.[69]

16.56 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also submitted that ‘it is crucial that the role of government in supporting vulnerable children, via, for example, the Department of Health and Human Services (DHHS) is not displaced as the first point of assistance’.[70]

16.57 In their submission VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated:

All of these concerns suggest that the provision of VOCAT assistance to emergency services and other workers injured in the course of their duties is in need of review. In particular, consideration should be given to whether Parliament intends for such workers injured in the course of their employment to be entitled to special financial assistance. Consideration may also be given to whether VoCAT is a suitable avenue for such workers to receive financial assistance, and whether other assistance schemes such as WorkSafe could function more effectively as the exclusive avenue of assistance available in these circumstances.[71]

16.58 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also submitted that ‘it is crucial that the role of government in supporting vulnerable children, via, for example, the Department of Health and Human Services (DHHS) is not displaced as the first point of assistance’.[72]

16.59 Ryan Carlisle Thomas Lawyers raised some concerns with what they viewed as VOCAT’s practice of ‘pre-empting’ an applicant’s entitlement to damages or other forms of compensation such as WorkCover entitlements, submitting that VOCAT should be liable to pay the applicant until such time that an applicant is successful under another scheme.[73]

16.60 Anglicare Victoria Victims Assistance Program submitted that VOCAT does not finalise awards until entitlements under TAC and WorkCover are exhausted.[74]

16.61 Due to the complexity of the intersection of other entitlements, Johnstone & Reimer Lawyers noted the importance of legal representation for applicants, given some victims have multiple potential sources of entitlement, including TAC, WorkCover and superannuation.[75]

16.62 In a consultation with Victim Assist Queensland (VAQ), the Commission was told that while the Queensland scheme operates as a scheme of ‘last resort’, VAQ had experienced difficulties with the intersection between victims of crime assistance and motor vehicle matters.[76] The Commission was also told that recent amendments to the Queensland Act now require applicants to make a claim through a compulsory third-party insurer prior to accessing assistance through VAQ.[77]

16.63 A number of stakeholders also raised concerns about the intersection between VOCAT and other compensation or assistance schemes in the context of whether victims should be required to refund awards. Refunds, including how refunds should apply under the proposed scheme, are discussed separately below.

Discussion and recommendations

16.64 As submitted by VOCAT, the Magistrates’ Court of Victoria and Children’s Court of Victoria, there are issues of ambiguity and complexity in relation to VOCAT’s consideration of other assistance or payments.[78]

16.65 The Commission has considered how other Australian jurisdictions address the matter of assistance or payments already made to a victim, as well as those an applicant may be entitled to, or may receive in the future.

16.66 In Queensland, the government assessor must reduce the amount of assistance that would otherwise be payable to the applicant by an amount equivalent to the ‘relevant payment’ which includes payments an applicant has received, or will receive.[79] However, this provision does not apply where the government assessor is satisfied that the purpose for which the relevant payment was or will be made does not include compensating the applicant for expenses in relation to which the applicant is eligible for assistance.[80] In the Queensland Act, the following example is provided at section 86 illustrating how the intersection of two relevant schemes might apply in practice:

Example—An applicant is eligible for assistance for counselling expenses mentioned in section 39(a), 42(a), 45(a), 46(a) or 49(a). A relevant payment is received by the applicant under the [National Injury Insurance Scheme Queensland] Act for the applicant’s treatment, care and support within the meaning of that Act. The purpose of the relevant payment does not include compensating the applicant for counselling expenses.[81]

16.67 In support of the Queensland provisions, the Queensland Act enables the scheme administrators to obtain information about ‘relevant payments’ from other agencies.[82]

16.68 In the Australian Capital Territory, the Victims of Crime Commissioner must:

• consider the extent to which services are available to the applicant under both the victims services scheme, and other services, in deciding the amount of financial assistance in relation to immediate need payments and economic loss payments[83]

• reduce the amount of financial assistance ‘equal to the associated payment’ if the applicant has ‘received an associated payment covering the same harm or loss as the financial assistance is intended to cover’.[84]

16.69 In New South Wales, in determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner of Victims Rights must have regard to any amount that has been paid or that the person is entitled to be paid ‘by way of damages in civil proceedings’ or ‘under any other Act or law’ or ‘under any insurance or other agreement or arrangement’ in respect of the act of violence to which the application for financial support or a recognition payment relates.[85] In support of this provision, the Commissioner is required to postpone the determination of an application until an applicant’s entitlements have been determined in relation to workers compensation, or death and disability payments under the Police Act 1990 (NSW).[86]

16.70 In the Commission’s view, the proposed state-funded financial assistance scheme Act (proposed Act) should provide clarity in relation to factors to be considered by the scheme decision maker where an applicant:

• has already received financial assistance or a relevant payment from another source relating to the same criminal act

• has not received financial assistance or a relevant payment from another source relating to the same criminal act, but may be entitled to or eligible for such assistance or payments

• may be required to refund an award.

16.71 These matters are discussed below, with the exception of refund of awards, which is considered later in this chapter.

Where an applicant has already received financial assistance or relevant payment from another source

16.72 As noted above, VCAT has interpreted section 16 of the VOCAA as allowing victims to obtain payments under the VOCAA, even when they have received payments from another scheme, if the payments received under another scheme are not ‘for the loss, expense or other matter’ for which assistance is sought under the VOCAA.[87] In other words, a victim may receive two payments, or two types of assistance, from the VOCAA and another scheme, if they are for different purposes.[88]

16.73 In the Commission’s view, it is appropriate for a victim to be eligible for different financial assistance under different schemes, provided it does not amount to the victim receiving assistance for the same purpose. The Commission considers such an approach acknowledges that victims may be navigating complex legal frameworks that intersect, while it also ensures sustainability and efficiency for the state by making sure victims do not receive assistance for the same purpose from two separate schemes. As noted by VCAT, such an approach does not equate to ‘double counting’,[89] because the assistance is provided for different purposes.

Where an applicant may be entitled to other assistance or payments not yet received

16.74 As outlined above, in addition to considering any payments that a victim has already received, section 16 of the VOCAA enables VOCAT to consider assistance or payments that a victim has not received, but ‘is eligible to be awarded’[90] or is ‘entitled to receive’ or ‘would be entitled to receive if he or she applied’.[91] As outlined above, these provisions are similar to provisions in other Australian jurisdictions.

16.75 Having regard to the current provisions in the VOCAA, and those in other jurisdictions, the Commission considers that it is appropriate to provide the scheme decision maker with discretion to reduce the amount of assistance provided to a victim where they may be entitled to other assistance or payments. This approach is also consistent with the Explanatory Memorandum to the Victims of Crime Assistance (Amendment) Bill in 2000, which stated that the intention of section 16 is that VOCAT can, but is not required to, reduce a VOCAT award to take into account the amount that an applicant is eligible to receive under other schemes.[92]

Providing clarity in the proposed Act

16.76 The Commission agrees with the observation of VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria that navigating the provisions in the VOCAA regarding the intersection of the VOCAA and other schemes ‘can be a source of ambiguity’.[93]

16.77 In the Commission’s view, the VOCAA does not provide sufficient clarity regarding the intersection between the VOCAA and other sources of payment or assistance—whether payments already received, or likely to be received by an applicant from other sources in the future.

16.78 Accordingly, the Commission considers that the proposed Act should:

• clarify that victims may be entitled to financial assistance under the proposed scheme, notwithstanding any entitlements they may be eligible for, or may have received, for a different purpose than the entitlements the victim may be eligible for, or may have received, under another scheme

• require the scheme decision maker, at the time of making an award, to reduce the amount of assistance provided to a victim equivalent to any assistance, payment, compensation or damages that the victim has received, for the same purpose as a payment under the proposed Act

• provide the scheme decision maker with discretion to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the scheme decision maker believes on the balance of probabilities that the victim will receive from any other source in relation to the same criminal act, and for the same purpose as a payment under the proposed Act.

16.79 In the Commission’s view, this approach:

• reduces ambiguity and uncertainty by acknowledging some victims will be entitled to different payments from different schemes and that it is appropriate for this to occur in some circumstances, as is currently the case under the VOCAA

• reduces complexity and uncertainty, by requiring the scheme decision maker, at the time of making an award, to reduce the amount of an award if payment has or may be received from any other source for the same purpose as a payment under the proposed Act. Such discretion should also reduce the need for victims to refund awards, which is discussed further below.

• encourages timely decision making by enabling the scheme decision maker to consider future payments where they believe such payments will be received by a victim, without requiring a victim to exhaust such opportunities prior to an award being made[94]

• promotes sustainability of the proposed scheme, while also encouraging a beneficial approach for victims, by requiring awards to be reduced when a victim has already received other payments but giving the scheme decision maker discretion not to reduce awards where other payments have not been received. This approach acknowledges such payments may ultimately never be received by a victim and that state-funded financial assistance is often the most practical route for a victim.

16.80 The Commission also considers that guidelines should be developed and made publicly available regarding the scheme’s intersection with other compensation, redress, insurance or financial assistance schemes in the interests of providing consistent and transparent advice to potential applicants. Such guidelines should also reflect any relevant case law interpretation of the proposed Act. In the Commission’s view, such guidelines should provide clarity for prospective applicants in relation to consideration of payments already made, or likely to be made, by another scheme, as well as the circumstances in which a refund of award might be required, which is discussed in detail in the next part of this chapter.

16.81 The Commission also notes the use of an example in Queensland’s relevant Act, which sets out how the intersection of two relevant schemes might apply in practice.[95] While this is a matter for legislative drafting, the Commission considers such an example provides a useful illustration of the intersection of relevant schemes and state-funded financial assistance and in this context, assists the scheme decision maker in determining an application where it intersects with another scheme.

16.82 VOCAT currently has broad investigative powers,[96] and broad powers to obtain information, including requiring other government departments or services to provide VOCAT with information or documents relevant to the application.[97] In support of the equivalent Queensland provisions, the Queensland Act also enables the scheme administrators to seek information about relevant payments relating to motor accidents, work-related injuries and other insurance schemes.[98]

16.83 In the Commission’s view, the proposed scheme should continue to have appropriate powers to investigate and obtain information to assist in determining, at the time of making an award, whether to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the victim has received from any other source.

Recommendations—interaction with other compensation and financial assistance schemes

86 The proposed Act should:

(a) provide that a victim may be entitled to financial assistance under the proposed Act, notwithstanding any assistance, payment, compensation or damages they may be eligible for or may have received from any other source, where the award made under the proposed Act is for a different purpose than the other entitlement or payment

(b) provide that the scheme decision maker, at the time of making an award, must reduce the amount of assistance, equivalent to any assistance, payment, compensation or damages that the victim has received from any other source in relation to the same criminal act, if that payment was for the same purpose as the award under the proposed Act

(c) provide the scheme decision maker with discretion to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the scheme decision maker considers on the balance of probabilities that the victim will receive from any other source in relation to the same criminal act, and for the same purpose as an award under the proposed Act

(d) provide the scheme decision maker with the power to investigate and obtain information to assist in determining, at the time of making an award, whether to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the victim has received from any other source.

87 To assist the scheme decision maker in determining an application where a victim may be eligible for or may have received assistance, payment, compensation or damages from another source, including the circumstances in which an award may be reduced, or a refund of part or all of an award may be required, guidelines should be developed and should be made publicly available.

Refund of awards

Current law

16.84 As outlined above, under section 16 of the VOCAA there are a number of circumstances where VOCAT must take into account other compensation, assistance or payments received by an applicant and reduce the VOCAT award amount accordingly.[99]

16.85 In addition to considering any payments that a victim has already received, section 16 of the VOCAA currently enables VOCAT to consider assistance or payments that a victim has not received, but ‘is eligible to be awarded’[100] or is ‘entitled to receive’ or ‘would be entitled to receive if he or she applied’.[101]

16.86 If the victim later receives any damages, compensation, assistance or payments not taken into account under section 16 of the VOCAA, but which VOCAT would have taken into account had the assistance been received before the making of the VOCAT award, then the victim must refund:

• the amount of the assistance paid to them under the VOCAA, if it is equal to or less than the amount of the damages, compensation, assistance or other payments subsequently received

• the amount of damages, compensation, assistance or other payments subsequently received, if the amount of the assistance paid to them under the VOCAA is greater.[102]

16.87 However, VOCAT retains some discretion as to whether a refund is required if the subsequent assistance was received from a person other than the alleged offender. In those circumstances, the victim only needs to refund the award, or part of it, if VOCAT specifically requires this.[103] However, the VOCAA does not specify the circumstances in which VOCAT is likely to require this.

16.88 In the Commission’s supplementary consultation paper, the Commission noted that limited data is available on how often refunds are required by VOCAT and whether, in practice, such provisions are being used.[104]

Responses

16.89 Some stakeholders submitted that VOCAT rarely requires a refund of an award.[105] Ryan Carlisle Thomas lawyers submitted that VOCAT instead seeks to pre-empt whether a VOCAT award will overlap with assistance provided under another scheme, and reduce the award accordingly at the time it is granted.[106]

16.90 Nevertheless, some stakeholders were concerned about the circumstances in which VOCAT might intersect with other assistance, requiring victims to refund the VOCAT award. For example, knowmore submitted that where other assistance is provided and a VOCAT refund required, this could make victims feel that they had participated in a lengthy and potentially traumatic process for no net practical gain.[107] Knowmore also submitted that the intersection between state-funded financial assistance and the proposed Commonwealth redress scheme for institutional child sexual assault needs to be clearly communicated to victims so that they fully understand their entitlements and obligations if assistance is received from multiple sources.[108]

16.91 Inner Melbourne Community Legal also submitted that despite the fact that VOCAT rarely pursues refunds, some victims are nonetheless concerned about the possibility of having to refund an award, particularly interim awards in the event that a final award is not made.[109]

16.92 To address these concerns, some stakeholders suggested that awards should never have to be refunded given the amounts awarded by VOCAT are relatively small and, in the case of special financial assistance, are a ‘symbolic expression’ of the state’s sympathy.[110] Cohealth also submitted that the symbolic nature of special financial assistance means that such payments are made for a different purpose than payments made under other schemes.[111] Ryan Carlisle Thomas Lawyers submitted that a refund should only be required when another entity provides the same kind of assistance as that which was awarded by VOCAT.[112]

16.93 Some stakeholders suggested that the refund provisions should be retained, but that certain victim cohorts should not have to refund awards, such as victims of family violence and sexual assault.[113] In particular, Women’s Legal Service Victoria, Domestic Violence Victoria and Aboriginal Family Violence Prevention & Legal Service Victoria submitted that in the case of family violence, refunds should not be required where this would increase the risk of harm by the perpetrator or would exacerbate the effects of family violence.[114]

16.94 Other stakeholders suggested that refunds should only be pursued in cases of fraud or serious misrepresentation[115] or where a victim has the means to refund the award.[116]

16.95 One submission supported the broader application of refund provisions, submitting that victims should have to refund awards where they had ‘double-dipped’ and received the same support through other mechanisms.[117]

Discussion and recommendations

16.96 As stated in the Commission’s supplementary consultation paper, there is limited data available on the circumstances in which VOCAT requires awards to be refunded and how often it does so.[118] VOCAT’s annual report does not include this information or state whether the refund provisions are used.

16.97 While this may suggest that the provisions are used rarely, if at all, the Commission notes stakeholder feedback that the very existence of the refund provisions, even in the absence of enforcement, is a source of concern for applicants. This is because applicants may not be aware of how VOCAT entitlements intersect with entitlements available under other schemes and whether there is a risk that they will receive a VOCAT award and then be required to refund it, or a part of it, at a later date.

16.98 The Commission therefore considers that the key issue associated with the refund provisions is the lack of clarity about when they may be invoked, rather than the existence of the provisions themselves. Accordingly, the Commission considers that the proposed Act should continue to provide that applicants may be required to refund awards where damages, compensation, assistance or other payments of any kind are obtained from other sources in relation to the same criminal act and for the same purpose for which the VOCAA award has been made. This is consistent with the recommendation above relating to the circumstances in which the scheme decision maker may consider other entitlements or awards at the time of making an award.

16.99 However, the Commission acknowledges that the lack of clarity regarding the application of the refund provisions is currently a source of concern for victims and may even prevent them from applying to the proposed scheme.[119] To improve clarity regarding the operation of the refund provisions, the Commission considers that rather than refunds being mandatory where financial assistance is obtained from the offender, and at VOCAT’s discretion in other circumstances, all refunds should be at the discretion of the decision maker supported by publicly available guidelines. In the Commission’s view, the decision maker should determine whether a refund is required by considering the specific circumstances of the matter, including:

• The quantum of the subsequent assistance received. For example, where a substantial amount of assistance is obtained later from another source, for example through the Prisoner Compensation Quarantine Fund,[120] the decision maker may consider that it is in the interests of the proposed scheme’s sustainability to require a refund from the victim.

• The type of subsequent assistance received. For example, whether the subsequent payment is in the form of a lump sum payment or financial assistance for goods and services that have already been provided to the victim. It may cause hardship to a victim, for example, to require them to refund an award for counselling services that have already been provided and paid for, even if the victim is subsequently awarded assistance for counselling under another scheme.

• Any other circumstances the decision maker considers relevant. For example, the decision maker might consider the victim’s specific circumstances, including whether a refund is likely to cause undue hardship to the victim.

16.100 In the Commission’s view, the need for refunds in the interests of scheme sustainability must also be balanced against the administrative and financial burdens that refunds may place on victims, and the efficiency of such provisions for the proposed scheme itself. Allowing the scheme decision maker discretion in such circumstances acknowledges that requiring victims to refund awards after a payment has already been made may cause financial stress, particularly where services have already been provided and paid for, or recovery payments already spent.

16.101 To improve awareness about the likelihood of a victim having to refund an award, the Commission considers that the proposed scheme should produce publicly available guidelines on the circumstances in which a victim may be required to refund the award and the factors the scheme decision maker will consider in determining whether a refund is required.

Recommendations—refund of awards

88 The proposed Act should provide that:

(a) after an award is made, a victim may be required to refund the award in whole or in part if the victim receives any assistance, payment, compensation or damages from any other source in relation to the same criminal act and for the same purpose for which the award has been made

(b) in determining whether a refund should be required, the scheme decision maker must have regard to the following factors:

(i) the quantum or type of any subsequent assistance, payment, compensation or damages received

(ii) any other circumstances that the scheme decision maker considers relevant, including the victim’s specific circumstances.

89 To assist the scheme decision maker in determining whether a refund should be required, guidelines should be developed and should be made publicly available.

19.3

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

    ↑

  2. Ibid s 16. It also works in conjunction with section 62 of the VOCAA which requires the victim to refund their VOCAT award if they later receive any damages, compensation, assistance or payments not taken into account under section 16, but which VOCAT would have taken into account had the assistance been received before the making of the VOCAT award. Refunds are discussed later in this chapter.

    ↑

  3. Victims of Crime Assistance Act 1996 (Vic) s 16(a)(i).

    ↑

  4. Ibid s 16(a)(ii).

    ↑

  5. Ibid s 16(ac).

    ↑

  6. Ibid s 16(b)(i).

    ↑

  7. Ibid s 16(b)(ii).

    ↑

  8. Ibid s 16(b).

    ↑

  9. Ibid s 16(ab).

    ↑

  10. Explanatory Memorandum, Victims of Crime Assistance (Amendment) Bill 2000 (Vic) 4.

    ↑

  11. Ibid.

    ↑

  12. Victims of Crime Assistance Act 1996 (Vic) s 26(1)(c).

    ↑

  13. Ibid s 39.

    ↑

  14. Ibid s 40(1)(b).

    ↑

  15. [2007] VCAT 1407 (6 August 2007).

    ↑

  16. In confirming this approach, VCAT accepted the reasoning in Vaughan v Victims of Crime Assistance Tribunal [2005] VCAT 1758 (26 August 2005).

    ↑

  17. Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407 (6 August 2007) [24].

    ↑

  18. Ibid [26].

    ↑

  19. Ibid.

    ↑

  20. [2007] VCAT 1407 (6 August 2007).

    ↑

  21. Ibid [30].

    ↑

  22. Deputy President McKenzie therefore determined that the claims were not manifestly hopeless and the respondent’s (VOCAT’s) application to dismiss the proceedings was itself dismissed: ibid Order 1.

    ↑

  23. [2008] VCAT 448 (26 February 2008).

    ↑

  24. Ibid [32].

    ↑

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

    ↑

  26. As discussed later in this chapter, this interpretation of the VOCAA was also raised in submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

    ↑

  27. [2003] VCAT 1489 (22 October 2003).

    ↑

  28. Ibid [23].

    ↑

  29. Ibid.

    ↑

  30. Ibid [27]

    ↑

  31. [2011] VCAT 1739 (13 September 2011).

    ↑

  32. Ibid [14].

    ↑

  33. Ibid [17].

    ↑

  34. [2011] VCAT 1739 (13 September 2011).

    ↑

  35. [2003] VCAT 1489 (22 October 2003) [27].

    ↑

  36. Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (New York University Press, 2002) 308.

    ↑

  37. Ibid.

    ↑

  38. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 48.

    ↑

  39. Independent Broad-Based Anti-Corruption Commission, Special Report Following IBAC’s First Year of Being Fully Operational (2014) 15.

    The review also raised concerns about alleged improper involvement of police in referring victims to select solicitors in relation to their VOCAT applications.

    ↑

  40. Ibid.

    ↑

  41. Ibid.

    ↑

  42. This is not an exhaustive list. There are a number of state, territory and Commonwealth schemes that might intersect with supports available under VOCAT or the proposed Scheme.

    ↑

  43. WorkSafe Victoria, Enforcement Group: Victims and Persons Adversely Affected by Crime Policy (2017) 2.

    ↑

  44. WorkSafe Victoria, Annual Report 2017 (2017) 2.

    ↑

  45. Ibid 3.

    ↑

  46. Ibid 3.

    ↑

  47. WorkSafe Victoria, Enforcement Group: Victims and Persons Adversely Affected by Crime Policy (2017) 2.

    ↑

  48. Transport Accident Commission, 2016/17 Annual Report (2017) 8.

    ↑

  49. Ibid.

    ↑

  50. Ibid.

    ↑

  51. Ibid.

    ↑

  52. Crimes Act 1958 (Vic) ss 318–19.

    ↑

  53. Explanatory Memorandum, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth) 3.

    ↑

  54. 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) xii–xii.

    ↑

  55. Subject to the passage of legislation, the Victorian Government will refer powers to the Commonwealth to ensure that Victorian state institutions participate in the proposed Commonwealth redress scheme: National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Vic) cl 1(2). A number of non-government institutions have also committed to join the proposed scheme, including the Catholic Church, Anglican Church, the Salvation Army, the YMCA and Scouts Australia: Department of Social Services (Cth), National Redress Scheme for People Who Have Experienced Institutional Child Sexual Abuse (5 June 2018) <www.dss.gov.au/national-redress-scheme-for-people-who-have-experienced-institutional-child-sexual-abuse>.

    ↑

  56. As at 28 May 2018, this would include victims of child sexual abuse relating to Commonwealth, state and territory government organisations (with the exception of Western Australia), as well as the Catholic Church, Anglican Church, the Salvation Army, the YMCA and Scouts Australia: Department of Social Services (Cth), National Redress Scheme for People Who Have Experienced Institutional Child Sexual Abuse (5 June 2018) <www.dss.gov.au/national-redress-scheme-for-people-who-have-experienced-institutional-child-sexual-abuse>.

    ↑

  57. Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 7.

    ↑

  58. Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 7.

    ↑

  59. Noting that the proposed redress scheme may only take into account other payments received if they have been made to a survivor from responsible institutions ‘in recognition of the harm caused by the abuse’. This seems to distinguish payments already made to ‘victim/survivors’ from institutions, as opposed to payments made by other state-based compensation schemes. See Department of Social Services (Cth), Submission No 27 to Senate Community Affairs Legislation Committee, Inquiry into the Commonwealth Redress Scheme, 6 February 2018, 7.

    ↑

  60. See Victims of Crime Assistance Act 1996 (Vic) s 77(1). These issues are also discussed in Submission 43 (knowmore).

    ↑

  61. Department of Health and Human Services (Vic), Program Requirements for the Delivery of Family Violence Flexible Support Packages (2016) 1; Women’s Health West, Annual Report 2015–16 (2016) 24.

    ↑

  62. Department of Health and Human Services (Vic), Program Requirements for the Delivery of Family Violence Flexible Support Packages (2016) 1.

    ↑

  63. National Disability Insurance Scheme, About the NDIS (accessed 31 May 2018) <https://www.ndis.gov.au/about-us/what-ndis.html>.

    ↑

  64. National Disability Insurance Agency, NDIS Participants with Compensation (2016) 1.

    ↑

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

    ↑

  66. Ibid.

    ↑

  67. Ibid.

    ↑

  68. Ibid.

    ↑

  69. Ibid.

    ↑

  70. Ibid.

    ↑

  71. Ibid.

    ↑

  72. Ibid.

    ↑

  73. Submission 38 (Ryan Carlisle Thomas Lawyers).

    ↑

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

    ↑

  75. Submission 23 (Johnstone & Reimer Lawyers).

    ↑

  76. Consultation 1 (Victim Assist Queensland).

    ↑

  77. Ibid.

    ↑

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

    ↑

  79. Victims of Crime Assistance Act 2009 (Qld) s 86(2). ‘Relevant payment’ is not defined in the Act.

    ↑

  80. Ibid s 86(2A).

    ↑

  81. Ibid.

    ↑

  82. Including the insurance commissioner under the Motor Accident Insurance Act 1994, the police commissioner under the Police Service Administration Act 1990, the Workers’ Compensation Chief Executive Officer under the Workers’ Compensation Act, and the Chief Executive Officer of the National Injury Insurance Agency Queensland: Victims of Crime Assistance Act 2009 (Qld) s 77.

    ↑

  83. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 46(2).

    ↑

  84. Ibid s 47(1)(a).

    ↑

  85. Victims Rights and Support Act 2013 (NSW) s 44(4).

    ↑

  86. Ibid ss 44(5)–(6).

    ↑

  87. Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407 (6 August 2007).

    ↑

  88. For example, related victims may be entitled to payments for ‘distress’ under the VOCAA in addition to payments provided under other schemes because payments for ‘distress’ might not be covered by other schemes. See, eg, Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407 (6 August 2007) [30], where the applicants were entitled to financial assistance for distress under the VOCAA, even though they were also entitled to payments under the Transport Accident Act 1986 (Vic) for ‘economic support’, as the payments were for different purposes.

    ↑

  89. Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407 (6 August 2007) [26].

    ↑

  90. Victims of Crime Assistance Act 1996 (Vic) s 16(ac).

    ↑

  91. Ibid s 16(b).

    ↑

  92. Explanatory Memorandum, Victims of Crime Assistance (Amendment) Bill 2000 (Vic) 4.

    ↑

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

    ↑

  94. This is in contrast with the approach in New South Wales where the decision maker is required to postpone the determination of an application until an applicant’s entitlements have been determined in relation to workers compensation or death and disability payments under the Police Act 1990 (NSW): Victims Rights and Support Act 2013 (NSW) ss 44(5)–(6).

    ↑

  95. Victims of Crime Assistance Act 2009 (Qld) s 86(2A).

    ↑

  96. Victims of Crime Assistance Act 1996 (Vic) s 39.

    ↑

  97. Ibid s 40.

    ↑

  98. Victims of Crime Assistance Act 2009 (Qld) s 77.

    ↑

  99. Victims of Crime Assistance Act 1996 (Vic) ss 16(a), (ac). There are a further set of circumstances where VOCAT may take into account other monies received and reduce an award, but is not required to: Victims of Crime Assistance Act 1996 (Vic) s 16(b).

    ↑

  100. Ibid s 16(ac).

    ↑

  101. Ibid s 16(b).

    ↑

  102. Ibid s 62(1).

    ↑

  103. Ibid s 62(2).

    ↑

  104. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 130.

    ↑

  105. Submissions 5 (Anglicare Victoria Victims Assistance Program), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

    ↑

  106. Submission 38 (Ryan Carlisle Thomas Lawyers). The Commission notes that this approach is consistent with section 16 of the VOCAA.

    ↑

  107. Submission 43 (knowmore).

    ↑

  108. Ibid.

    ↑

  109. Submission 14 (Inner Melbourne Community Legal).

    ↑

  110. Submission 18 (cohealth).

    ↑

  111. Ibid.

    ↑

  112. Submission 38 (Ryan Carlisle Thomas Lawyers).

    ↑

  113. Submission 14 (Inner Melbourne Community Legal).

    ↑

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

    ↑

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

    ↑

  116. Submission 14 (Inner Melbourne Community Legal).

    ↑

  117. Submission 27 (Name withheld).

    ↑

  118. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 130.

    ↑

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

    ↑

  120. The Prisoner Compensation Quarantine Fund (PCQF) quarantines any compensation a convicted offender receives if they are injured in prison and successfully sue the prison. If the prisoner is paid $10,000 or more in compensation, the money will be held in the PCQF for at least 12 months. The prisoner cannot access the money during this time, enabling a victim to make a compensation claim against the prisoner. The Victims Support Agency manages the PCQF. See State Government of Victoria, Compensation from the Offender (2017) Victims of Crime<www.victimsofcrime.vic.gov.au/going-to-court/compensation-from-the-offender>.

    ↑

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