Victims of Crime Assistance Act 1996: Report (html)

18. Costs and sustainability of the proposed victims of crime financial assistance scheme

Introduction

18.1 This chapter considers and makes recommendations, in relation to the costs and sustainability of the proposed state-funded financial assistance scheme (proposed scheme), including:

• costs associated with establishing the proposed scheme

• demand for the existing scheme, and possible demand of the proposed scheme

• mechanisms to ensure scheme sustainability, including the applicability of offender contribution under the proposed Act.

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

18.3 In considering the applicability of offender contribution under the proposed Act, this chapter also considers the extent to which the proposed scheme can maximise therapeutic effect for victims. This relates to the matter in the supplementary terms of reference asking the Commission to bear in mind that a state-funded financial assistance scheme should seek to achieve outcomes for victims that maximise therapeutic effect.

Establishment of and demand for the proposed victims of crime financial assistance scheme

VOCAT’s current operating costs

18.4 This part of the chapter outlines the current operating costs of the Victims of Crime Assistance Tribunal (VOCAT), including salaries and associated expenditure, special appropriations, the average cost per finalised VOCAT claim, and the Magistrates’ Court of Victoria’s subsidisation of VOCAT operations.

Salaries, operating costs and special appropriations

18.5 The costs and expenses of establishing, maintaining and administering VOCAT as well as the amounts of assistance awarded under the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) are paid out of the Consolidated Fund of the State of Victoria (consolidated revenue).^[1]

18.6 VOCAT’s Financial Statement for the year ending 30 June 2017 reported VOCAT’s total expenditure as follows:^[2]

• Salaries and associated expenditure: $2,231,805

• Operating expenditure: $724,523

18.7 Accordingly, for the year ending 30 June 2017, VOCAT’s total salary and operating expenditure was $2,956,328.^[3] This represented an increase of four per cent from the previous financial year.^[4]

18.8 During the same period, VOCAT also paid $43,408,546 in financial assistance to victims of crime, a figure which includes fees paid to service providers and legal practitioners.^[5]

18.9 Accordingly, the total costs of VOCAT’s operations for the year ending 30 June 2017, including salaries, operating costs, financial assistance paid to victims of crime, and fees paid to service providers and legal practitioners, was $46,364,874.

Average cost per finalised claim

18.10 For the year ending 30 June 2017, the average cost per finalised application for financial assistance was $410, excluding the costs met by the Magistrates’ Court of Victoria’s operating budget, including corporate services and magistrates’ salaries.^[6] In this context, the average cost per finalised claim does not ‘accurately reflect the true costs of VOCAT’s operations’.^[7]

18.11 The Magistrates’ Court of Victoria’s subsidisation of VOCAT’s operations is outlined further below and discussed below in relation to responses from stakeholders.

Magistrates’ Court of Victoria—subsidisation of VOCAT

18.12 VOCAT’s Annual Report for 2016–17 notes that VOCAT’s operating costs are low as a result of its subsidisation by the Magistrates’ Court of Victoria. This includes:^[8]

• being accommodated within Magistrates’ Court venues

• having magistrates as decision makers

• being supported by Magistrates’ Court registrars.

18.13 Accordingly, and as VOCAT acknowledges in its annual report, the Magistrates’ Court of Victoria ‘absorbs a large proportion of VOCAT’s operating costs, including magistrates’ salaries, infrastructure costs and corporate service expenses’.^[9]

VOCAT’s current demand

Number of applications

18.14 Over the past four years, there has been a steady increase in the number of new applications filed with VOCAT each year, as follows:

• 2016–17: 7312 applications filed^[10]

• 2015–16: 6221 applications filed^[11]

• 2014–15: 6113 applications filed^[12]

• 2013–14: 5722 applications filed^[13]

18.15 VOCAT has observed that since VOCAT’s establishment 20 years ago, applications to the Tribunal have increased almost every year.^[14] In their joint submission to the Victorian Royal Commission into Family Violence, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also stated there had been a 337 per cent increase in VOCAT’s case load between 2001–02 and 2013–14.^[15]

18.16 More recently, VOCAT observed that in the 2016–17 financial year VOCAT had ‘one of the biggest growths in the Tribunal’s history’,^[16] with an increase of 17.5 per cent in the number of applications received compared with the previous financial year.^[17] VOCAT suggested in its Annual Report for 2016–17 that this significant increase may be attributed to an increased number of applications filed electronically, and to VOCAT’s delivery of structured information and training sessions to police recruits potentially improving awareness of VOCAT.^[18]

Demand for different types of assistance under the VOCAA

18.17 VOCAT’s Annual Report for 2016–17 outlines the total amount of assistance awarded by assistance type, as well as the fees paid to service providers and legal practitioners.^[19]

18.18 Together, these figures provide an overview of the demand for different types of assistance under the VOCAA, as well as the costs of paying for reports from service providers (such as counselling/psychological/psychiatric reports) and reimbursing the costs of legal practitioners.

18.19 Table 4 below sets out the total amount of assistance awarded by assistance type, and fees for service providers and legal practitioners in the 2016–17 financial year.^[20]

Table 4: Total amount of assistance awarded by assistance type, and fees for service providers and legal practitioners—2016–17 financial year

18.20 Table 4 above shows that the top five areas of demand for VOCAT assistance and costs are:^[21]

• awards of special financial assistance—21.9 per cent

• awards for counselling—15.6 per cent

• awards for other expenses to assist recovery—15.1 per cent

• awards for distress—13.4 per cent

• legal costs (reimbursements to legal practitioners for assisting victims with their VOCAT applications)—10.7 per cent.

Average award amounts

18.21 Average award amounts under the VOCAA are relatively consistent year to year. For example, the average amount of financial assistance awarded by VOCAT in 2016–17 was $7983^[22] and the average amount of financial assistance awarded by VOCAT in 2015–16 was $7784.^[23]

18.22 This is similar to the two previous financial years, which were $7639 and $7336 respectively.^[24]

Responses

Efficiency and sustainability

18.23 In its supplementary consultation paper, the Commission sought community and stakeholder views on whether the existing scheme was efficient and sustainable for the state.

18.24 As noted in Chapter 7, a number of stakeholders considered the use of judicial decision makers reduced the overall efficiency and sustainability of the existing scheme for the state. For example, stakeholders said that using magistrates and court staff for VOCAT purposes burdens an already stretched criminal justice system.^[25] A number of stakeholders suggested that one of the benefits of an administrative scheme would be the freeing up of judicial resources.^[26]

18.25 Some stakeholders also suggested that the existing scheme’s reliance on lawyers was inefficient. For example, the Victims of Crime Commissioner submitted:

If an administrative model was introduced and clear instructions, eligibility criteria and evidence required to support the application were documented, then legal representation would not be required, thus creating an almost $6M saving to the public purse. Alternatively, this money could be used to provide further services to victims of crime in Victoria.^[27]

18.26 However, beyond consideration of alternative models of state-funded financial assistance, few stakeholders expressed a view on the efficiency and sustainability of the existing scheme.

18.27 Some stakeholders did comment on the need for adequate funding and resourcing of any state-funded financial assistance scheme. For example, knowmore submitted that:

while sustainability of the statutory scheme is an important consideration, it is not one that should impact in an unfair way upon victims, through inadequate awards. The intent of the Act should not be dissipated by inadequate resourcing of the scheme.^[28]

18.28 Similarly, Ryan Carlisle Thomas Lawyers submitted that ‘proper’ funding of the state-funded financial assistance scheme would assist the government to provide ‘timely, equitable and just administration of assistance to those victims in need’.^[29]

Operating costs of VOCAT

18.29 The Commission did not seek stakeholder views on the current operating costs of VOCAT, nor on what the establishment or operating costs of a new state-funded financial assistance scheme might be if one was introduced.

18.30 Nonetheless, some submissions addressed both the current operating costs of VOCAT, and the costs that might be associated with establishing a new scheme.

18.31 For example, the Victims of Crime Commissioner submitted that an administrative scheme ‘would result in considerable savings, notwithstanding the fact that VOCAT Magistrates are not paid out of VOCAT’s operating budget’.^[30] In this context, the Victims of Crime Commissioner submitted that the ‘total operating costs for an administrative model would be in the vicinity of $4,466,803’ per year.^[31]

18.32 In contrast, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the existing VOCAT model is already efficient and sustainable, as it is heavily subsidised by the Magistrates’ Court of Victoria, enabling VOCAT to use court staff, judicial officers and court infrastructure and thereby limit its overall running costs.^[32] In this context, the joint submission of the Magistrates’ Court of Victoria and VOCAT also provided the Commission with an overview of trends in VOCAT operating expenditure over the past five years. These trends are outlined in Table 5 below.

Table 5: Trends in VOCAT operating expenditure^[33]

18.33 Table 5 above shows that on average the operating expenditure of VOCAT has grown by an average 3.5 per cent each year, although some years might experience low or no growth (eg 2015/16) while other years may experience high growth (eg 2013/14 and 2016/17).

18.34 However, the joint submission of the Magistrates’ Court of Victoria and VOCAT submitted that VOCAT’s operating costs do not reflect ‘the degree of subsidisation provided by MCV’.^[34]

18.35 Accordingly, the true operating cost of VOCAT is not known.

Demand

18.36 In its joint submission, the Magistrates’ Court of Victoria and VOCAT submitted that:

Over the past 20 years, the Tribunal has received 93,944 applications for financial assistance, and awarded $747 million to victims of crime. This has included 72,947 awards of financial assistance, and tens of thousands of awards of interim financial assistance.^[35]

18.37 VOCAT, the Magistrates’ Court and the Children’s Court also submitted that VOCAT has experienced ‘steadily growing demand’ and ‘increasing system pressures’.^[36]

18.38 More specifically, the VOCAT, the Magistrates’ Court and the Children’s Court of

Victoria noted:

an unsustainable upward trend in applications (on current resourcing levels) driven by: major recent justice reforms, such as implementation of [Royal Commission into Family Violence] recommendations; the commencement of online applications; and growing community rejection of the cultural “normalisation” of family violence.^[37]

18.39 In their joint submission, the Magistrates’ Court of Victoria and VOCAT identified a number of demand drivers for the increased case load. These include:^[38]

• major justice reforms over recent years in response to landmark inquiries such as the Royal Commission into Family Violence and the Access to Justice Review

• the commencement of online applications in 2014 and its contribution to a sharp increase in applications between 2015–16 and 2016–17—the largest growth in the Tribunal’s history

• increasing community understanding and rejection of the ‘normalisation’ of violence, particularly family violence

• government prioritisation of community safety initiatives, including promoting awareness of supports such as VOCAT.

18.40 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that there was significant pressure on VOCAT’s sustainability because of:

• the increasing demand and complexity of cases, which take longer and contribute to delays

• VOCAT’s operational budget, which is not keeping pace with demand

• a disproportionate component of the budget being spent on legal expenses as a proportion of award payments (11 per cent)

• reliance on Magistrates’ Court of Victoria resources to subsidise VOCAT operations within an increasingly restrictive fiscal environment

• the impact of major justice reforms, such as those flowing from the Royal Commission into Family Violence

• systemic inefficiencies across the VOCAT service delivery model.^[39]

18.41 During the reporting period 2016–2017, 7312 applications were filed with VOCAT. This represents a 17.5 per cent increase over the previous year (6221). As noted in the joint submission of the Magistrates’ Court of Victoria and VOCAT, the effect of these demand drivers is that during this period, most major courts saw an increase in applications lodged.^[40] For example Sunshine and Werribee experienced a 44 per cent and 43 per cent increase respectively, while Broadmeadows, Dandenong, Ringwood, Melbourne, Moorabbin, Geelong, Warrnambool and Heidelberg all had increases of over 20 per cent.^[41]

VOCAT initiatives in response to demand

18.42 To address the demand pressures noted above, the Magistrates’ Court of Victoria and VOCAT submitted that VOCAT has introduced a number of initiatives aimed at improving system efficiencies and responding to increased demand, including:^[42]

• advocating for legislative changes to increase the financial delegation for registrars to make interim awards from $1000 to $5000 and to enable increases in the number of awards of interim financial assistance made by registrars

• enabling judicial registrars to consider less complex applications and variation requests

• developing guidelines and practice directions around common expense types such as funerals, psychological and psychiatric assessment reports and counselling fees

• improving consistency in decision making and administrative practices by enhancing training for and support to Tribunal members, judicial registrars and registrars

• introducing strategic coordination of applications for assistance arising from major incidents

• streamlining the processing of applications arising from sexual offences alleged to have been committed against multiple applicants by the same offender.

18.43 The joint submission of the Magistrates’ Court of Victoria and VOCAT also observed that the average amount of financial assistance awarded in 2016–17 ($7983) was consistent with previous years. In this context, the Magistrates’ Court of Victoria and VOCAT also noted that the average amount of assistance awarded has remained fairly consistent over the past 20 years, and that this demonstrated that Tribunal members are applying the legislation consistently.^[43]

18.44 The submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also noted that any changes to technical aspects of the VOCAA, including eligibility, assistance available and factors to be considered by the decision maker, would have resulting demand and cost implications.^[44]

18.45 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that ‘a review of VoCAT’s budget is long overdue’ while also acknowledging that demand modelling was required to anticipate projected demand for VOCAT because significant data gaps currently exist.^[45]

Discussion and recommendations

Demand for the proposed scheme

18.46 Statistical analysis suggests demand for state-funded financial assistance—regardless of whether the current model is retained or a new model is introduced—is likely to increase each year. VOCAT has observed that since VOCAT’s establishment 20 years ago, applications to the Tribunal have increased almost every year,^[46] and over the past four years, there has been a steady increase in the number of new applications filed with VOCAT each year.^[47]

18.47 In the Commission’s view, although demand for state-funded financial assistance is likely to increase, demand directed to VOCAT, or the proposed scheme, is difficult to quantify or project because demand is likely to be affected by:

• Major justice reforms: such as implementation of recommendations from the Royal Commission into Family Violence, which are likely to increase community awareness of family violence, leading to increased reporting and detection of family violence.^[48]

• Availability of other forms of financial assistance including:

• Family Violence Flexible Support Packages, which may be subject to annual budget fluctuations or changes^[49]

• implementation of the proposed national redress scheme for institutional child sexual abuse, which might ultimately reduce reliance on state-funded financial assistance once operational^[50]

• Fluctuations in awareness of VOCAT or the proposed scheme: with up to 90 per cent of eligible victims not currently accessing VOCAT, any increase in community awareness is likely to lead to an increase in application numbers^[51]

• Any reduction in technical or legal barriers to assistance: for example, if recommendations in this report are adopted, legal provisions that may have previously excluded some victims from accessing assistance, such as application time limits, may expand the numbers of eligible victims.^[52]

18.48 Accordingly, while statistical analysis suggests the upward trend in financial assistance applications is likely to continue, as it has since VOCAT’s inception,^[53] in the Commission’s view, comprehensive demand modelling is required to explore VOCAT’s, or the proposed scheme’s, projected demand. Such modelling would need to take into account any schemes’ interaction with other justice initiatives and other relevant financial assistance programs (such as TAC or WorkCover), while at the same time, accounting for any recommendations in this report that, if implemented, may increase access to state-funded financial assistance.

18.49 The Commission notes that the NSW Department of Attorney General and Justice commissioned PricewaterhouseCoopers to review the Victims Support and Rehabilitation Act 1996 (NSW) in 2012,^[54] including providing a comprehensive costing of a proposed scheme. In addition, the Royal Commission into Institutional Responses to Child Sexual Abuse commissioned an independent report to project indicative participant volumes, costs and funding requirements associated with any proposed national redress scheme.^[55]

18.50 Although projecting the potential demands for VOCAT or a proposed scheme, as well as associated costs, are outside the terms of reference for this review, the Commission notes that the PricewaterhouseCoopers report projected the anticipated costs of the proposed scheme in New South Wales by:^[56]

• projecting the number of violent crimes

• projecting the proportion of victims who might lodge a claim

• estimating the proportion of claims that might use each category of support

• estimating the average cost per claim of each category of support

• projecting the total costs of each category of support

• adding an allowance for cases management and administration of the scheme.

18.51 Similarly, Finity Consulting projected the anticipated costs of the proposed national redress scheme by assessing state populations, victim profiles, the number of redress participants in other schemes, the projected severity of abuse, payment scales, counselling needs, administrative costs and payment patterns.^[57]

18.52 In the Commission’s view, such methodology could be used in Victoria and cross-referenced with existing VOCAT data relating to the total amount of assistance awarded under the existing scheme, demand for the different types of assistance, and current fees paid to service providers and legal practitioners outlined above in Table 4. Such demand modelling should also make appropriate calculations for other environmental factors such as major justice reforms,^[58] the availability of other forms of financial assistance, any fluctuations in awareness of VOCAT or the proposed scheme, and any reduction in technical or legal barriers to assistance if the recommendations in this report are adopted.

18.53 The need for demand modelling was also raised by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria in their joint submission, where it was acknowledged that demand modelling was required to anticipate projected demand for VOCAT in light of significant data gaps under the existing scheme.^[59]

18.54 In the Commission’s view, demand modelling is essential to not only better understand not only current unmet demand, but also appropriate budgeting requirements for any establishment or operating costs for the proposed scheme.

18.55 Accordingly, the Commission considers that a comprehensive demand modelling project be undertaken to assess the current unmet demand under the existing scheme, and anticipated demand under the proposed scheme including projecting:

• the potential number of eligible victims under the proposed Act

• the proportion of victims that might apply to the proposed scheme, having regard to relevant justice initiatives, other financial assistance or redress schemes and the recommendations in this report that aim to reduce barriers, improve victim awareness and increase the number of victims accessing state-funded financial assistance.

Recommendation—scheme establishment and demand

94 A comprehensive demand modelling project should be undertaken to assess current unmet demand under the existing scheme and anticipated demand under the proposed scheme.

Proposed establishment and operating costs

18.56 In Chapter 8, the Commission recommended that a new state-funded financial assistance scheme (the proposed scheme) be established, led by an independent, dedicated and specialised decision maker.

18.57 In Chapter 9, the Commission made recommendations relating to the establishment of the new scheme decision maker, specifically that the Office of the Victims of Crime Commissioner be expanded, with the Victims of Crime Commissioner’s functions and powers expanded to oversee the proposed scheme.

18.58 In making this recommendation, the Commission noted that additional staff would be required to support the expansion of the office of the Victims of Crime Commissioner to administer the proposed state-funded financial assistance scheme. The Commission recommended that the Victims of Crime Commissioner be provided with the appropriate staffing and funding necessary to assist the Commissioner in properly performing their functions consistent with section 16 of the Victims of Crime Commissioner Act 2015 (Vic).^[60]

18.59 In Chapter 9, the Commission noted the staffing arrangements in other Australian jurisdictions with administrative schemes. Table 6 below provides an overview of approximate staffing in other administrative schemes, noting staffing numbers are subject to frequent change and are indicative numbers only.^[61]

Table 6: Staffing arrangements in other Australian jurisdictions with administrative state-funded financial assistance schemes ^[62][63][64]

* includes all individual applications for counselling, financial support and recognition payments. Applications in all three categories have been counted as three separate applications, which accounts for the significantly higher numbers in New South Wales.

18.60 As shown in Table 6, each jurisdiction uses different combinations of staff to undertake various assessment, case management and administrative duties. Due to the differing compositions of teams in the various state-funded financial assistance schemes, it is difficult to directly compare staffing numbers against relative demand for each scheme.

18.61 Comparing these staffing numbers against Victoria’s current decision making approach is also challenging because:

• VOCAT comprises the Chief Magistrate and all magistrates and reserve magistrates under the Magistrates’ Court Act 1989 (Vic),^[65] but the number of cases allocated to each magistrate is not published so it is unclear how many VOCAT cases each magistrate is allocated.

• VOCAT is supported by Magistrates’ Court registrars, but the Commission is unable to determine the percentage of VOCAT work undertaken by Magistrates’ Court of Victoria staff. ^[66]

• VOCAT decision making is currently split between judicial registrars, who make approximately 20 per cent of final awards, and magistrates who make approximately 80 per cent of final awards.^[67]

18.62 Accordingly, in the Commission’s view, the following establishment and operating costs will require further costing and consideration:

• Scheme salaries and operating expenditure: Current salaries and operating expenditure amount to approximately $3 million per annum under the current VOCAT model,^[68] increasing by approximately 4 per cent per year.^[69] However, this figure does not take into account the subsidisation by the Magistrates’ Court of some of VOCAT’s operating costs, including the costs of using magistrates as decision makers, VOCAT being accommodated within Magistrates’ Court venues and VOCAT being supported by Magistrates’ Court registrars.^[70]

• Office infrastructure: VOCAT’s operating costs are lower as the physical infrastructure required for the Tribunal’s operations is accommodated within Magistrates’ Court venues.^[71] The physical infrastructure required to establish an expanded Office of the Victims of Crime Commissioner, including relevant regional presence, would need to be fully costed.

• Average cost per finalised claim: As stated above, for the year ending 30 June 2017, the average cost per finalised application for financial assistance was $410, excluding the costs met by the Magistrates’ Court’s operating budget, such as corporate services and magistrates’ salaries.^[72] The administrative costs per finalised claim would require further costing and consideration, particularly in light of the administrative costs for the proposed national redress scheme being estimated at approximately $3000 per scheme participant.^[73]

Sustainability of the proposed victims of crime financial assistance scheme

Factors and initiatives promoting sustainability of the proposed scheme

18.63 In Chapters 9–16, the Commission made a number of detailed recommendations regarding the proposed Act and scheme. This included recommendations in relation to eligibility under the proposed Act, assistance available under the proposed Act and the interaction of the proposed scheme with other assistance. A number of the recommendations in those chapters aim to balance the need to provide victims with appropriate financial assistance to assist in their recovery, with the need to ensure the proposed scheme is efficient and sustainable for the state.

18.64 Efficiency and sustainability considerations underpinning these recommendations include that:

• the state’s judicial and court resources be reserved for decision making that requires judicial oversight, rather than using the Magistrates’ Court to supplement Victoria’s state-funded financial assistance scheme, by proposing the establishment of a new state-funded financial assistance scheme overseen by a new decision maker

• the proposed scheme be overseen by an expanded Office of the Victims of Crime Commissioner, rather than establishing a new statutory entity

• the proposed scheme be structured in a way that will reduce reliance on legal representation, noting that reimbursing lawyers for assisting victims with their VOCAT applications currently costs approximately $5,762,959 per year

• the proposed Act limit assistance to circumstances where assistance (for the same purpose) cannot be obtained from another scheme

• the criminal basis to the state-funded financial assistance scheme be maintained—for example, by not extending assistance to non-criminal forms of violence, abuse or harassment

• the definition of ‘injury’ under the proposed Act not include property damage

• the assistance provided under the proposed Act be ‘reasonable’, certain categories of assistance be ‘capped’ and the ‘related criminal acts’ provisions be retained

• application time limits be retained

• the two separate categories of special financial assistance and expenses to assist recovery are consolidated into one recovery payment.

18.65 While there are a number of factors and initiatives incorporated into the proposed Act and scheme to promote its efficiency and sustainability, the next part of this chapter reviews, and makes recommendations in relation to, mechanisms for contribution by convicted offenders as a further means to also improve sustainability of the state-funded financial assistance schemes.

Contribution from convicted offenders

18.66 Contributions from convicted offenders, often called ‘offender recovery’ in the context of state-funded financial assistance schemes, enables the state to recover money from the responsible offender.^[74] This is in circumstances where they have been convicted of the crime which relates to the state-funded financial assistance awarded to an individual victim in a particular matter.^[75]

18.67 Offender contribution only occurs where a person is charged, prosecuted and convicted of an offence. Offender contribution provides for contribution by an individual offender in relation to the specific crime they committed, and in relation to the specific victim/s associated with their offending. However, in many circumstances, offenders may not be able to be identified, or there may be insufficient evidence to support a prosecution or a conviction. Accordingly, offender contribution may not apply to the particular circumstances of many victims.

18.68 Offender contribution can be used by state-funded financial assistance schemes to supplement other funding sources, and to offset some of the costs of administering such schemes. Accordingly, in the Commission’s supplementary consultation paper, the Commission sought community and stakeholder views on offender contribution under the existing VOCAA, and also sought views on whether offender contribution should remain part of a state-funded financial assistance scheme.^[76]

Current law

18.69 The VOCAA enables a victim to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates.^[77] The effect of this provision is that where a victim exercises their right of assignment, the state stands in the shoes of the victim for the purpose of recovering any other award that may be available to the victim by way of separate proceedings for damages or compensation and determined in accordance with the relevant standard of proof.

18.70 Offender contribution, for example by way of a civil law claim for compensation, or an application for a restitution or compensation order under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) following the conviction of an offender, is therefore enabled by section 51 of the VOCAA, as the provision is broad and enables the state to recover ‘from any other person’. However, in the absence of a victim assigning this right to the state, the state cannot recover monies from an offender.

18.71 Section 51 of the VOCAA is also supported by section 61 of the VOCAA, which reiterates that ‘the making of an award of assistance [under the VOCAA] does not affect the right of a person to recover from any other person’.^[78]

18.72 Where money is recovered by the state in the exercise of a right assigned to it in accordance with section 51(1) of the Act, monies must be dealt with as follows:^[79]

• an amount equal to the expended amount, or the total money recovered if it is less than the expended amount, must be paid into the Consolidated Fund

• the balance, if any, must be paid to the assignor.

18.73 The effect of this is where money is recovered by the state, the victim would only receive the balance after the costs incurred by the state in recovering the monies were paid into the Consolidated Fund.

18.74 As the current offender contribution provision in the VOCAA relies on a victim electing to assign their right to recover to the state, the VOCAA’s offender recovery provision is quite narrow. For example, it does not go as far as the provisions in the former Criminal Injuries Compensation Act 1983 (Vic) which enabled the tribunal established under that Act to order an offender to refund compensation paid on application of the Director of Public Prosecutions.^[80]

18.75 As discussed in the Commission’s supplementary consultation paper, the offender contribution provision in section 51 of the VOCAA is rarely used.^[81] In the then-Department of Justice’s 2009 review of victims of crime compensation, the Department of Justice stated that section 51 of the VOCAA had not been exercised in practice.^[82]

18.76 Victoria’s state-funded financial assistance scheme has no other offender contribution mechanisms, although, as discussed in Chapter 4, victims of crime can seek compensation or restitution under the Sentencing Act 1991 (Vic) or pursue a civil action against an offender for an award of damages.^[83]

18.77 Victoria’s approach to offender contribution is quite different to the approach in other jurisdictions. As discussed below, other jurisdictions provide the state with an express right to recover directly from an offender and to seek enforcement of that debt as a statutory debt against the state. However, the VOCAA contains no such equivalent provision.

Offender contribution in other jurisdictions

18.78 In New South Wales, the Commissioner of Victims Rights can make a provisional order for restitution against a convicted offender^[84] which may be enforced as if it were an order made in civil proceedings.^[85] Victims Services NSW states that the purpose of such provisions ‘is to place responsibility on offenders to contribute to assisting victims in recovering from the act of violence’.^[86]

18.79 Under the Victims of Crime (Financial Assistance) Act 2016 (ACT) the Victims of Crime Commissioner must, as far as practicable, recover from an offender the amount of financial assistance provided to a victim.^[87] However, there are a number safeguards, and limits to such actions, including:^[88]

• The commissioner must not take, or continue, recovery action without taking into account the objective risks to the safety of any person and the subjective concerns of an assisted person about the commissioner’s contact with an offender or recovery action generally.

• The commissioner must consult the assisted person (victim) before giving a recovery intention notice to an offender, providing the assisted person 28 days to raise any concerns about such action.

• The Commissioner must not give the offender confidential information about a person who has received financial assistance or payments including the name, contact details, medical or psychological reports, counselling notes or other identifying information about the assisted person.

• The commissioner must be satisfied on reasonable grounds that recovery is practicable and appropriate.

18.80 The Victims of Crime Assistance Act 2009 (Qld) also provides for the state to recover assistance granted for an act of violence from a person who is convicted of a relevant offence for the act.^[89] Unlike the ACT legislation, the Queensland legislation does not provide for consideration of a victim’s view or safety concerns.

Commonwealth proposal for the early release of superannuation benefits for victims of crime

18.81 On 8 December 2017, the Australian Government announced a Treasury-led review of the rules governing early release of superannuation.^[90]

18.82 An issues paper was released in December 2017 which considered whether State or Territory compensation schemes for victims of crime should be able to recover costs from a perpetrator’s superannuation,^[91] and whether victims of crime should be able to access a perpetrator’s superannuation for the purposes of a compensation or restitution order.^[92]

18.83 A media report in March 2018 stated that ‘The Government is in the process of drafting the legislation with plans to introduce it to Parliament by the end of the year’.^[93] On 28 May 2018, the Government released for public consultation two draft proposals for how victims of crime might access a perpetrator’s superannuation in certain circumstances:^[94]

• a ‘claw-back’ mechanism for ‘out of character’ superannuation contributions made by offenders to shield their assets

• allowing victims of serious, violent crimes to be able to access a perpetrator’s superannuation as compensation where other assets have been exhausted, subject to appropriate limits and thresholds.

18.84 These proposals may impact offender contribution for the purposes of state-funded financial assistance in two ways:

• state or territory state-funded financial assistance or compensation schemes, like VOCAT or the proposed scheme, may be able to access a perpetrator’s superannuation as part of offender contribution mechanisms in state legislation^[95]

• victims of crime may be able to access a perpetrator’s superannuation for the purposes of enforcing a compensation or restitution order.^[96] This may ultimately reduce reliance on state-funded financial assistance.

18.85 As at May 2018, the public consultation was ongoing. Accordingly, it is not clear how the proposals to enable release of superannuation benefits for victims of crime will intersect with VOCAT or the proposed scheme.

Responses

18.86 Few stakeholders commented on the operation of offender contribution under section 51 of the VOCAA. The Victims of Crime Commissioner submitted:

There is no evidence to suggest that any victim of crime in Victoria has ever assigned their rights to the State of Victoria, or to suggest that the State has ever commenced proceedings to recover money from an offender.^[97]

18.87 The Victims of Crime Commissioner also submitted that:

Offenders should be held not only criminally responsible for their actions, but financially as well. It is iniquitous that law abiding citizens have to pay to compensate victims of crime (through the payment of their taxes), when the person who caused the injuries is absolved from financial responsibility.^[98]

18.88 The Victims of Crime Commissioner submitted that the state should attempt to recover funds from convicted offenders, but did not state definitively whether that responsibility should sit with his office or another area of government.^[99]

18.89 Schembri & Co Lawyers submitted that VOCAT should use section 51 of the VOCAA and ‘recover awards from offenders who have been convicted and found guilty of the act of violence to alleviate the financial burden from the State and make offenders accountable for their behaviour’.^[100] A representative of the Anglicare Victoria Victims Assistance Program suggested Victoria should attempt to recover monies from offenders as other Australian jurisdictions do.^[101]

18.90 One submission suggested section 51 was a ‘convoluted aspect’ of the existing scheme, given the provision relies on the victim to assign their rights to the state, and that it might be suitable to retain the provision but that such assignment should be sought and pursued more often.^[102] Conversely, Springvale Monash Legal Service submitted that section 51 of the VOCAA was ‘impractical’ and should be removed.^[103]

18.91 Consultations with relevant state-funded financial assistance schemes in other Australian jurisdictions provided insight into the practical operation of offender contribution in circumstances when the relevant legislation does not rely on a victim assigning their right to seek offender contribution to the state.

18.92 During consultations with Victim Support ACT, the ACT Victims of Crime Commissioner told the Commission that Victim Support ACT is cautious about seeking repayments from offenders and takes into account victims’ views.^[104] The Victims of Crime Commissioner also acknowledged that offender contribution is not the primary focus of the ACT scheme and so little money is ever recovered from offenders.^[105] The Victims of Crime Commissioner told the Commission that offender contribution must be appropriately resourced if it is to be effective and that Victim Support ACT are not resourced to prioritise offender contribution, as their resources are stretched finalising victim applications.^[106] The Victims of Crime Commissioner also raised concerns about whether offender contribution is appropriate in administrative schemes as it might be inferred by an offender that such recovery is victim-initiated.^[107]

18.93 In a consultation with Victim Assist Queensland (VAQ), the Commission was told that VAQ have a small debt recovery team of two staff members to support offender contribution.^[108] The Commission was told that victims are given notice of the potential for offender contribution when they apply for the scheme.^[109] As debt recovery only occurs if an offender is found guilty, VAQ told the Commission that this usually mitigates most safety issues but any concerns raised by victims are treated on a case by case basis. In this context, VAQ may decide not to proceed with the offender contribution process.^[110]

VAQ emphasised the importance for victims of seeing offenders being made accountable, noting that some victims have told VAQ that they want the offender, rather than the state, to pay.^[111]

18.94 From a practical perspective, VAQ works closely with Queensland’s State Penalties Enforcement Registry (SPER) to increase the chances of recovering monies.^[112] VAQ only recovers monies relating to lump sum payments, rather than awards for other expenses to ensure offenders are not given specific information about a victim’s loss of earnings or other personal expenses.^[113]

18.95 VAQ told the Commission that one issue associated with offender contribution is that offenders may not be informed by their lawyers that by pleading guilty (for example, to a lesser charge or to avoid the significant costs of a trial), their guilty plea will automatically trigger the offender contribution process if the victim has applied for assistance.^[114]

Discussion and recommendations

18.96 As noted above, few stakeholders commented on the operation of section 51 of the VOCAA. Only two submissions suggested section 51 of the VOCAA be retained or reformed,^[115] and one submission suggested the provision was ‘impractical’ and should be removed.^[116]

18.97 In the Commission’s view, there are three main considerations in relation to offender contribution:

• First, and as a threshold issue, is it appropriate for state-funded financial assistance schemes to make provision for offender contribution in all, or limited, circumstances?

• Secondly, are the potential advantages of offender contribution outweighed by the potential disadvantages? Disadvantages include:

• the risk of an offender retaliating against a victim for the state’s pursuit of contribution

• the practical difficulties with enforcing debts against offenders, many of whom are unlikely to have means to pay

• the need to divert scheme resources away from assisting victims to pursuing offenders for debts.

• Finally, if offender contribution is retained under the proposed scheme, is the existing provision in section 51 of the VOCAA, which relies on victims assigning their right to the state, the best mechanism by which to seek such contribution?

18.98 The Commission considers each of these matters below.

Is it appropriate for state-funded financial assistance schemes to make provision for offender contribution?

18.99 In the Commission’s report The Role of Victims of Crime in the Criminal Trial Process, the Commission explored victims’ views on receiving money direct from an offender as opposed to state-based financial assistance.^[117] In that report, the Commission noted that some victims may not want to receive money direct from the offender, particularly over a long period, while other victims would prefer to receive compensation direct from the offender than from the state, noting money from the offender may represent acknowledgment of the harm caused.^[118] J D W E Mulder has also observed that some victims of crime have a strong preference for compensation direct from the offender rather than the state for reasons such as reinforcing responsibility for the harm incurred.^[119] This is also reflected in research by Hayley Catherine Clark where some victims of sexual assault identified the importance of money coming from the perpetrator, who ‘owes’ victims for their wrongs, rather than from the state.^[120]

18.100 The matter of whether victims derive benefit from receiving money direct from the offender, as compared to state-funded financial assistance, is complicated by the delay victims experience when pursuing restitution or compensation direct from an offender. Such avenues require the completion of either a civil or criminal court matter, and are frequently subject to significant delays. As discussed in Chapters 7 and 8, research consistently demonstrates that delays in the payment of financial assistance to victims of crime can have a counter-therapeutic effect.^[121]

18.101 As detailed in Chapter 7 of this report, victims’ ‘justice needs’ vary and accordingly, some victims may be deterred from applying for state-funded financial assistance if they are aware offender contribution might be pursued; while other victims may consider it an important component of state-funded financial assistance that offenders contribute to the costs of state-funded financial assistance awards. NSW Victims Services states, for example, that the purpose of offender contribution ‘is to place responsibility on offenders to contribute to assisting victims in recovering from the act of violence’.^[122]

18.102 The Commission notes that most other Australian jurisdictions provide for the relevant state-funded financial assistance scheme to recover monies from offenders if the perpetrator is convicted or found guilty without requiring a victim to assign their right to the state.^[123]

18.103 Given some victims do consider it appropriate for offenders to contribute money towards their assistance or recovery, and noting that offender contribution provisions are provided for by most other Australian jurisdictions, the Commission considers that it is appropriate that state-funded financial assistance schemes make provision for offender contribution. In particular, the Commission notes the potential for victims to feel validated and acknowledged by the offender’s financial contribution, thereby maximising the therapeutic effect of state-funded financial assistance for victims, as well as enabling the state to recoup some of the costs of state-funded financial assistance.

18.104 However, the potential advantages of offender contribution must also be considered alongside the potential disadvantages, as discussed further below.

Are the potential advantages of offender contribution outweighed by the potential disadvantages?

18.105 The potential advantages of offender contribution, such as holding perpetrators to account for the harms caused,^[124] may be outweighed by the potential disadvantages of pursuing offender recovery, including:

• the potential safety risks for victims should an offender retaliate against a victim for the state’s pursuit of contribution

• the practical difficulties with enforcing debts against offenders, many of whom are unlikely to have means to pay

• the need to divert scheme resources away from assisting victims, to pursuing offenders for debts.

Safety issues

18.106 In the Commission’s supplementary consultation paper, the Commission noted academic concerns about offender contribution mechanisms in relevant Australian jurisdictions’ financial assistance legislation due to concerns about victim safety and wellbeing, particularly with for victims of family violence.^[125]

18.107 Concerns about victim safety with respect to offender contribution were also raised during the Commission’s consultations with other Australian jurisdictions. For example, the Commission was told by the ACT Victims of Crime Commissioner that Victim Support ACT is cautious about seeking repayments from offenders and takes into account victims’ views.^[126] The Victims of Crime Commissioner also raised concerns about whether offender contribution is appropriate in administrative schemes as an offender might assume that such contribution is victim-initiated.^[127]

18.108 In this respect, the Commission notes that under the ACT legislation, the Victims of Crime Commissioner must not take, or continue, offender contribution action without taking into account:^[128]

• the objective risks to the safety of any person

• the subjective concerns of an assisted person about the commissioner’s contact with an offender or contribution action generally.

18.109 Isobelle Barrett Meyering has observed that ‘while the concept of perpetrator accountability is attractive in theory, the impact of making recovery orders on victims’ experiences of the compensation process needs to be carefully weighed’.^[129]

Practical difficulties with offender contribution

18.110 The practical difficulties pursuing offender contribution include:

• the fact that many offenders are unlikely to have means to pay

• the need to divert scheme resources away from assisting crimes, to pursuing offenders for debts.

18.111 During consultations with Victim Assistance Queensland (VAQ), the Commission was told that VAQ has a small debt-recovery team (two staff members) to assist with offender contribution.^[130] VAQ work closely with Queensland’s State Penalties Enforcement Registry (SPER) to increase the chances of contribution.^[131]

18.112 In the supplementary consultation paper, the Commission noted the practical difficulties beyond resourcing implications in recovering monies from offenders. These include:

• that the majority of offenders are generally from lower socio-economic backgrounds and do not have accumulated assets

• that many offenders are unemployed for significant periods of time or may be incarcerated and thus have limited ability to pay

• that many offenders are difficult to locate to enforce debts.^[132]

18.113 Some of these issues are illustrated by the experience in New South Wales. In New South Wales, 2454 provisional orders were issued in 2015–16 for $20.06 million, of which only 48 were paid in full.^[133] To enforce such orders, Victims Services must work with the State Debt Recovery Office.^[134]

18.114 Nonetheless, $4.37 million was recovered during the 2015–16 financial year from such restitution processes which, in addition to victim levies, provided almost $15 million to the NSW financial assistance scheme that year.^[135]

18.115 Additionally, the Commission notes that the Australian Government has released for public consultation two draft proposals for how victims of crime might access a perpetrator’s superannuation in certain circumstances. Should such proposals proceed,^[136] it is possible that the monies able to be recovered from offenders may be increased and therefore, some of the practical difficulties associated with offender contribution reduced.

Is section 51 of the VOCAA the best way to achieve offender contribution?

18.116 As noted above, few stakeholders commented on section 51 of the VOCAA. Research indicates that section 51 of the VOCAA appeared to be used rarely (if at all).^[137]

18.117 The fact that section 51 of the VOCAA appears not to be used in practice raises questions about the effectiveness of the provision. However, unlike provisions in some other jurisdictions, which provide an express right for the state to recover directly from an offender, the Commission considers that the current formulation of section 51, which enables a victim to assign to the state their right to recover from any person, including an offender, has some positive benefits. For example, many of the concerns about safety in relation to offender contribution in other jurisdictions do not apply in Victoria as the VOCAA first requires a victim to elect to assign their right to seek offender contribution to the state. Victims who do not want the offender pursued because of safety or wellbeing concerns would be unlikely to elect to assign their rights to the state. In this context, section 51 is a victim-centred provision, prioritising victims’ safety. At the same time, however, reliance on a victim assigning their right to the state as the trigger for offender contribution may not be as effective as other schemes that do not rely on such a trigger for offender contribution. In this context, it is also unclear whether, or how, victims are advised of this right during the VOCAT process.

18.118 In addition, the Commission notes that where a victim assigns their right to the state in accordance with section 51 of the VOCAA, and the state decides to pursue recovery, the state must instigate separate proceedings to be determined in accordance with the relevant standard of proof. In relation to an alleged offender, and as noted above, such proceedings could be a civil law claim for compensation or an application for a restitution or compensation order under Divisions 1 and 2 of the Sentencing Act 1991 (Vic).

Offender contribution under the proposed Act

18.119 As outlined above, the Commission considers it is appropriate that state-funded financial assistance schemes make provision for offender contribution in some circumstances. In reaching this conclusion, the Commission notes:

• the current provision in the VOCAA enabling such contribution, notwithstanding this approach is different to the approach adopted in other jurisdictions

• some victims’ views that it may assist in their recovery to have an offender contribute

• the fact that offender contribution provisions are provided for by most other Australian jurisdictions, albeit as a directly enforceable statutory debt.

18.120 In the Commission’s view, the safety issues relating to offender contribution can also be mitigated by:

• enabling offender contribution only in circumstances where a victim elects for such a process to be initiated as provided by the current provisions of the VOCAA

• requiring a decision maker, notwithstanding a victim’s wishes that offender contribution be pursued, to assess the objective risks to the safety of any person if such offender contribution were to be pursued. This proposed approach is similar to the safety provisions incorporated into the ACT legislation whereby the Victims of Crime Commissioner must not take, or continue, recovery action without taking into account objective risks to the safety of any person.^[138]

18.121 In terms of the practical difficulties with offender contribution, the Commission is also of the view that these difficulties can be mitigated by:

• not requiring a decision maker to pursue contribution where such recovery does not have a reasonable prospect of success, noting evidence suggesting many offenders will have limited financial resources^[139]

• providing appropriate resourcing for offender contribution, separate to any resourcing of the scheme established for the purposes of assisting victims.

18.122 Although section 51 of the VOCAA is rarely used, the Commission considers that section 51 of the VOCAA appropriately balances victim safety and the ability for the state to pursue offender contribution. Unlike provisions in other jurisdictions, many of the concerns about safety in relation to offender contribution do not apply in Victoria. As the VOCAA requires a victim to elect to assign their right, victims who do not want the offender pursued because of concerns for their own safety or wellbeing would be unlikely to elect to assign their rights to the state.

18.123 The Commission notes that the reliance on a victim assigning their right to the state is only effective if a victim is advised of this right, and the scheme is operationally resourced to undertake such recovery. In the Commission’s view, it is not the current construction of section 51 of the VOCAA that is an issue, but the absence of any advice, information, resources or infrastructure to operationalise it.

18.124 Accordingly, the Commission considers that a victim should remain able to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates, as is currently provided for under section 51 of the VOCAA. However, to support this provision, the Commission considers that the proposed new state-funded financial assistance Act (proposed Act) should also require the scheme decision maker to advise victims of this right.

18.125 To ensure victim safety remains paramount, the Commission also considers that the proposed Act should require the scheme decision maker to assess any objective safety risks. This is similar to the approach adopted in the Australian Capital Territory where the Victims of Crime (Financial Assistance) Act 2016 (ACT) provides that the Commissioner must not take, or continue, contribution action without taking into account objective risks to the safety of any person.^[140]

18.126 To ensure scheme efficiency and sustainability, the Commission also considers that the proposed Act should provide the scheme decision maker with discretion not to recover an amount from an offender where the decision maker determines that the recovery does not have a reasonable prospect of success. This is also similar to the provision in the ACT legislation.^[141] To support this, the proposed Act should provide the proposed scheme with appropriate power to investigate and obtain information to assist in determining whether the offender contribution has a reasonable prospect of success.

18.127 The VOCAA currently provides VOCAT with broad investigative powers,^[142] 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.^[143] Accordingly, similar powers should be provided for under the proposed Act to ensure the scheme can determine whether offender contribution has a reasonable prospect of success.

18.128 Finally, to enable the proposed scheme to pursue offender contribution effectively, the Commission considers that the proposed scheme decision maker should be provided with dedicated funding and resourcing sufficient to pursue such contributions and so as not to impact on the provision of support to victims under the proposed scheme. In this context the Commissioner considers that further government consideration of the appropriate agency for pursuing such contributions is required. Similarly to the approach in Queensland, and to maximise efficiencies and expertise, the recovery functions of the proposed scheme decision maker could be undertaken in conjunction with relevant Department of Justice and Regulation enforcement agencies, such as Infringement, Management and Enforcement Services.

Recommendations—sustainability of the proposed scheme—offender recovery

95 The proposed Act should:

(a) enable a victim to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates, as is currently provided for under section 51 of the Victims of Crime Assistance Act 1996 (Vic)

(b) require any amount equal to the expended amount to be paid into the Consolidated Fund with the balance, if any, to be paid to the assignor, as is currently provided for under section 51 of the Victims of Crime Assistance Act 1996 (Vic)

(c) provide that the scheme decision maker must advise all victims that they may assign to the state their right to recover from any other person, and provide clear information on the process for such recovery

(d) notwithstanding a victim’s assignment of their right, provide the proposed scheme decision maker with discretion not to recover or continue to recover an amount from an offender because:

(i) of the scheme decision maker’s assessment of the objective risks to the safety of any person; or

(ii) the scheme decision maker determines that the recovery does not have a reasonable prospect of success

(e) provide the scheme decision maker with the power to investigate and obtain any information reasonably necessary to assist in determining whether the recovery has a reasonable prospect of success.

96 To enable offender contributions to be effectively pursued, where a victim elects for the state to do so:

(a) the scheme decision maker should be provided with dedicated funding and resourcing to pursue such contributions and this funding should be sufficient not to divert resources from the provision of support to victims under the proposed scheme, and

(b) there should be further government consideration of the appropriate agency for pursuing such contributions.

Levies imposed on convicted offenders—’victim levies’

18.129 A levy imposed on convicted offenders—usually referred to as a ‘victim levy’—is a standard amount levied on all offenders found guilty of certain offences, with the monies received directed to a special funding ‘pool’ to supplement funding sources for state-funded financial assistance or other state purposes. Unlike offender recovery outlined above, victim levies are applied against all specified offenders,^[144] with the monies collected directed to a pool of funds, not towards specific victims.

18.130 Victoria does not currently have a victim levy. However, as other state-funded financial assistance schemes use such levies to assist with the funding of state-funded financial assistance schemes, and noting the supplementary terms of reference objective that the state-funded financial assistance scheme should be efficient and sustainable for the state, the Commission sought community and stakeholder views on victim levies in its supplementary consultation paper.^[145]

18.131 A proposal by the Victorian Victims of Crime Commissioner to introduce victim levies in Victoria was also the subject of recent media reports.^[146] This proposal was also included in the Victims of Crime Commissioner’s submission to this review, and is discussed below in relation to stakeholder responses.^[147]

18.132 Media reports in February 2018 suggested the Victorian Government was considering the Victims of Crime Commissioner’s proposal to introduce a victim levy, but would await the outcome of this review.^[148] The Sentencing Advisory Council in its Restitution and Compensation Orders: Issues and Options Paper, released in March 2018, also noted that the Commission has sought stakeholder and community views in relation to victim levies.^[149]

Victim levies in other jurisdictions

18.133 A number of jurisdictions both in Australia and internationally have implemented victim levies to supplement the funding of their financial assistance schemes. In Australia, there are now victim levies in all jurisdictions except Victoria and Western Australia^[150] as follows:

• New South Wales: A Victims Support Levy of $79 is imposed for summary offences and $177 for indictable offences on convicted offenders.^[151] The levy contributes to the Victims Support Fund and is imposed automatically under the Victims Rights and Support Act 2013 (NSW), rather than as a penalty imposed by a court.

• Australian Capital Territory: A $50 victims’ services levy is imposed on adults convicted of an offence as a source of revenue to improve services for victims of crime.^[152]

• South Australia: A $60–$160 levy is imposed for summary offences^[153] and $260 for indictable offences^[154] to generate revenue for the Victims of Crime Fund.

• Tasmania: A compensation levy of $20–50 (or a prescribed amount) is imposed to provide revenue for the Victims Assistance Fund.^[155]

• Northern Territory: A levy of $200 for an indictable offence and $150 for any other offence is imposed on adult offenders. A levy of $50 is also imposed on child offenders. Levies provide a source of revenue for the Victims Assistance Fund.^[156]

18.134 In Queensland, rather than a victim levy, an ‘offender levy’ is applied to sentences imposed in the Magistrates’, District and Supreme Courts. Unlike other jurisdictions, this levy does not fund assistance for victims of crime but is used instead to pay for law enforcement and administration costs.^[157]

18.135 There are equivalent international examples of victims’ or offender levies in New Zealand, England and Wales, Northern Ireland and the Canadian Federal System.^[158]

18.136 These levies have the potential to generate significant funds. For example, the Victims Support Levy in New South Wales contributed $11.69M in 2016–17 towards the Victims Support Fund.^[159] If applied in the Victorian context, this would contribute around a quarter of the $43,408M paid out by VOCAT during the 2016–17 financial year.^[160]

Responses

18.137 A number of stakeholders generally supported the introduction of a victim levy on offenders.^[161] In particular, stakeholders said that funding state-funded financial assistance through a victim levy could have a therapeutic effect for victims, as it would be seen to hold offenders accountable by requiring them to contribute to victims’ payments.^[162]

18.138 Moreover, the Victims of Crime Commissioner submitted that such a levy would ‘provide considerable additional funding’^[163] to state-funded financial assistance, while at the same time only adding ‘a very small cost to those who commit criminal and other offences’.^[164] The Victims of Crime Commissioner estimated that if a $20 levy were imposed on infringement notices and a $50 levy on court-imposed penalties, it could generate almost $90 million per annum.^[165]

18.139 A number of stakeholders said that if a victim levy were established, it should be directed into a general pool to supplement the funds available to victims, rather than provided to individual victims.^[166] For example, cohealth submitted that:^[167]

An across the board levy against offenders could be imposed, but only if it was contributed to by offenders as part of a general pool, rather than awarded directly to the person harmed by the crime … it would be preferable if collection of these funds did not have any connection to the payment of financial assistance to victims, but was rather a revenue raising measure to supplement the pool of funds available to victims.

18.140 Springvale Monash Legal Service agreed that such an approach ‘would allow family violence victims to anonymously seek financial assistance … without the need for perpetrator notification’.^[168]

18.141 Ryan Carlisle Thomas submitted that the imposition of a victim levy should not prejudice the ability of a victim to recover from that offender under the Sentencing Act 1991 (Vic).^[169]

18.142 Some stakeholders, while supportive of a victim levy, expressed concern about the impact that it may have on impecunious offenders.^[170] In particular it was noted that it may cause offenders undue hardship, which could in turn lead to further offending.^[171] One proposal to overcome these concerns was to afford sentencing magistrates and judges a discretion to waive the levy where appropriate.^[172] Another option put forward was to impose levies of differing amounts according to an offender’s income or ability to pay.^[173]

18.143 In addition, some stakeholders raised concerns about the cost implications and administrative burden of enforcing a victim levy.^[174] Adviceline Injury Lawyers, for example, submitted that ‘the administration and collection of a levy would far outweigh the benefits recovered’.^[175]

18.144 One stakeholder opposed the imposition of a victim levy on offenders on the grounds that ‘the notion of victims of crime support is or at least should be a responsibility of our society’.^[176] Accordingly, this stakeholder supported imposing a levy on all members of the community, since all members of the community ‘would like to receive adequate support if we suddenly became a victim of crime.’^[177]

Discussion and recommendations

18.145 As discussed above, Victoria does not currently have a victim levy although other Australian jurisdictions use victim levies to assist with the funding of their state-funded financial assistance schemes.

18.146 The Commission considers there are three main considerations in relation to a victim levy:

• First, what are the advantages of imposing a victim levy?

• Secondly, are the potential advantages of a victim levy outweighed by the potential disadvantages? These disadvantages may include:

• the impact on offenders who may not have the means to pay

• enforcement costs incurred by the state in pursuing offenders who cannot pay a victim levy

• other potential legal implications, including potential constitutional or human rights issues.

• Finally, if a victim levy is appropriate, which government body or agency should be responsible for its administration?

18.147 The Commission considers each of these matters below.

Advantages of victim levies

18.148 The introduction of a victim levy is supported by precedent in other jurisdictions. A number of jurisdictions both in Australia and internationally have implemented victim levies to supplement the funding of their victims of crime financial assistance schemes. In Australia, there are now victim levies in all jurisdictions except Victoria and Western Australia.^[178]

18.149 The Commission notes that a number of stakeholders generally supported the introduction of a victim levy on offenders.^[179] In particular, stakeholders said that funding state-funded financial assistance through a victim levy could have a therapeutic effect for victims, as it would be seen to hold offenders accountable by requiring them to contribute to victims’ payments.^[180]

18.150 Beyond possible therapeutic considerations, victim levies have the capacity to generate significant funds.

18.151 As submitted by the Victims of Crime Commissioner, a victim levy in Victoria could provide considerable additional funding to state-funded financial assistance, while adding only ‘a very small cost to those who commit criminal and other offences’.^[181]

Disadvantages of Victim Levies

Potential legal implications

18.152 There are academic concerns about the constitutional implications of imposing a victim levy on offenders. Douglas and Chrzanowski suggest that a victim levy, depending on how it is drafted, could give rise to issues relating to the separation of judicial and administrative powers under the Australian Constitution.^[182] For example, if judges are required to impose the levy on offenders but are prohibited from taking it into account in sentencing—as in Queensland—it could be argued that it undermines judicial independence and the integrity of the courts.^[183]

18.153 The Canadian experience of its ‘victim surcharge’ also raises concerns that a victim levy may give rise to human rights concerns.^[184] In that jurisdiction, a number of judges have found that their inability to waive the mandatory victim surcharge for impoverished offenders violates both the right to life, liberty and security of the person and the right to freedom from cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.^[185]

18.154 Given Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic), and the right to protection from cruel, inhuman and degrading treatment under section 10(b) of the Charter, any victim levy scheme would need to carefully consider Canada’s experience in relation to impecunious offenders.

18.155 Nonetheless, as outlined in detail above, many Australian jurisdictions have victim levies in place, suggesting these legal considerations may be adequately overcome through effective safeguards incorporated into the relevant legislation.

Impact on impecunious offenders

18.156 Some stakeholders expressed concerns about the impact that a victim levy may have on impecunious offenders.^[186] It was noted in particular that a levy may cause offenders undue hardship, which could in turn lead to further offending.^[187]

18.157 Douglas and Chrzanowski note that levies such as Queensland’s ‘offender levy’ can place financial stress on people who are already in financial crisis, suggesting levies can have ‘a discriminatory effect on the most vulnerable including Indigenous people, those who have intellectual impairment or mental illness, and poor and homeless people’ because such groups are already overrepresented in the criminal justice system.^[188]

18.158 Douglas and Chrzanowski’s concerns echo those raised by some stakeholders consulted about impoverished offenders.^[189]

18.159 In this context, the Commission questions whether such a levy imposed on those who are unlikely to have the means to pay effectively results in such offenders being doubly punished, exposing poorer offenders to a greater punitive burden than wealthier offenders.^[190]

Enforcement costs

18.160 Another issue relating to victim levies is the extent to which their enforcement costs outweigh their capacity to generate revenue.

18.161 A number of stakeholders raised concerns about the cost implications and administrative burden of enforcing a victim levy.^[191] Adviceline Injury Lawyers, for example, submitted that ‘the administration and collection of a levy would far outweigh the benefits recovered’.^[192]

18.162 This echoes concerns previously raised in relation to the introduction of such a levy in other jurisdictions.^[193] These concerns are most likely based on the difficulties experienced in relation to the enforcement of court fines and infringement penalties, which are regularly left unpaid.^[194] As noted by Warner and Gawlick, there are also significant enforcement problems in relation to compensation orders for crime victims across Australian jurisdictions.^[195]

18.163 Nevertheless, some jurisdictions have managed to establish victim levy schemes that generate considerable revenue—such as South Australia. In 2014, before South Australia increased the maximum payment under its state-funded financial assistance scheme, a representative of the Victim Support Service stated that ‘the revenue that that [victim levy] fund generates far outweighs the amount of compensation that’s paid out’. At that time, there was $160 million surplus in the fund.^[196] In New Zealand, the revenue generated exceeded projections in its first year of operation.^[197]

18.164 This suggests that issues relating to enforcement may be outweighed by the potential to generate significant revenue.

Should victim levies form part of the proposed scheme?

18.165 Notwithstanding the potential advantages and disadvantages of victim levies, outlined above, the Commission has also considered the extent to which, even if a victim levy is considered appropriate, such a levy could or should form part of a state-funded financial assistance scheme.

18.166 Although a victim levy could generate supplementary revenue for a state-funded financial assistance scheme, the Commission questions whether it is efficient or sustainable for the proposed scheme to administer a victim levy scheme and oversee its enforcement.

18.167 It may be more appropriate, if a victim levy is imposed at the conviction or sentencing stage of a criminal matter, for responsibility for enforcement of that levy to be transferred to the Infringement Management and Enforcement Services (IMES), Department of Justice and Regulation given this part of government already manages infringements and enforcement.^[198] During consultations regarding the introduction of an ‘Offender Levy’^[199] in Northern Ireland, the Department of Justice noted that in relation to the administration of the levy, ‘processes should be mapped onto existing financial systems and procedures, thereby reducing administrative complexity and minimising operational costs’.^[200]

18.168 In the Commission’s view, the introduction of a victim levy could have a significant impact on courts and enforcement agencies in Victoria, depending on any proposed levy’s legislated purpose, definition and interaction with the conviction and sentencing phase of criminal matters. For example, Douglas and Chrzanowski suggest that a victim levy, depending on how it is drafted, could give rise to constitutional issues relating to the separation of judicial and administrative powers.^[201] In addition, if judges are required to impose the levy on offenders but are prohibited from taking it into account in sentencing—as in Queensland—it could be argued that it undermines judicial independence and the integrity of the courts.^[202]

18.169 These are matters are beyond the Commission’s terms of reference as part of a review of state-funded financial assistance.

The need for a dedicated review

18.170 The question of whether it is appropriate for a victim levy to be introduced in Victoria has been open since 2009, when the then-Department of Justice also inquired into the issue in its discussion paper Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards. ^[203] A final report was not published.

18.171 More recently, this issue has gained public attention following the Victims of Crime Commissioner’s proposal in his submission to this review, that a victim levy should be introduced.^[204]

18.172 However, the question of whether a victim levy should be introduced in Victoria is best considered as part of a separate, specific and dedicated review due to its potentially wide-ranging implications across the justice system, and the broader community.

18.173 The matter of a victim levy needs to be addressed in its own right, with regard to:

• Victims’ and stakeholders’ views: through a comprehensive and dedicated consultation process exploring the possible therapeutic benefits for victims, as well as the potential ramifications for vulnerable members of the community and in particular, considering the overlap between victimisation and criminal offending.

• Legal implications: including any constitutional or human rights issues. For example, consideration may need to be given to whether any law introducing a victim levy imposes limitations on judicial power or breaches provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

• Operational experiences in other jurisdictions: including a comparative analysis of how victim levies are legislatively established, how victim levy schemes are implemented and the most effective methods of enforcemen.

• Cost benefit analysis: including the extent to which the costs of enforcement are outweighed by the revenue generated.

• Social implications: for example, the extent to which such levies may disproportionately affect certain members of the population, such as those experiencing homelessness who are more likely to interact with the criminal justice system because they are forced to carry out their private lives in public places.^[205]

18.174 In the Commission’s view, such a review should also consider whether victim levies should be established, administered and enforced under a state-funded financial assistance scheme, or whether a victim levy scheme is better administered and enforced through another arm of government.

Recommendation—sustainability of the proposed scheme—‘victim levies’

97 To assist with scheme sustainability, further consideration should be given by government to the introduction of a ‘victim levy’ payable by offenders on conviction.

1. Victims of Crime Assistance Act 1996 (Vic) s 69.

   ↑

2. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 65.

   ↑

3. Ibid.

   ↑

4. Ibid 64.

   ↑

5. Ibid 63. This figure relates to award payments for expenses, lump sum payments to applicants, reimbursement costs for service providers and legal costs: 65.

   ↑

6. Ibid 64.

   ↑

7. Ibid.

   ↑

8. Ibid.

   ↑

9. Ibid.

   ↑

10. Ibid 3.

    ↑

11. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 3.

    ↑

12. Victims of Crime Assistance Tribunal, Annual Report 2014–15 (2015) 4.

    ↑

13. Victims of Crime Assistance Tribunal, Annual Report 2013–14 (2014) 4.

    ↑

14. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 14.

    ↑

15. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence, June 2015, 45.

    ↑

16. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 14.

    ↑

17. Ibid 32.

    ↑

18. Ibid 9.

    ↑

19. Ibid 56.

    ↑

20. This table is adapted from ‘Table 10’ in VOCAT’s Annual Report for 2016–17: ibid.

    ↑

21. Ibid.

    ↑

22. Ibid 3.

    ↑

23. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 4.

    ↑

24. $7639 in 2014–15 and $7336 in 2013–14: Victims of Crime Assistance Tribunal, Annual Report 2014–15 (2015) 5; Victims of Crime Assistance Tribunal, Annual Report 2013–14 (2014) 5.

    ↑

25. Submission 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 14 (Chief Magistrates’ Family Violence Taskforce); 16 (Regional Consultation—Ballarat Legal Professionals).

    ↑

26. Submissions 2 (Victorian Civil and Administrative Tribunal), 31 (Victorian Council of Social Service), 37 (safe steps Family Violence Response Centre), 49 (Victims of Crime Commissioner, Victoria); Consultation 7 (Family Violence and Advocacy Organisations).

    ↑

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

    ↑

28. Submission 43 (knowmore).

    ↑

29. Submission 38 (Ryan Carlisle Thomas Lawyers).

    ↑

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

    ↑

31. Ibid.

    ↑

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

    ↑

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

    ↑

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

    ↑

35. Ibid.

    ↑

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

    ↑

37. Ibid.

    ↑

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

    ↑

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

    ↑

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

    ↑

41. Ibid.

    ↑

42. Ibid.

    ↑

43. Ibid. The Commission notes, however, that as the average amount awarded has remained consistent rather than rising with inflation, the average award amount is actually reducing in real terms over time.

    ↑

44. For example, any changes to the factors to be considered by the decision maker under sections 52 and 54 of the VOCAA, ‘would expand eligibility under the Act, allowing applications in circumstances where assistance may have been previously refused, with consequent demand and cost implications’: submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

    ↑

45. Ibid.

    ↑

46. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 14.

    ↑

47. Ibid 3; Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 3; Victims of Crime Assistance Tribunal, Annual Report 2014–15 (2015) 4; Victims of Crime Assistance Tribunal, Annual Report 2013–14 (2014) 4.

    ↑

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

    ↑

49. See, eg, Victorian Government, Family Violence Housing Support (accessed 31 May 2018) <www.vic.gov.au/affordablehousing/housing-services/family-violence-housing-support.html>.

    ↑

50. 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). The Commonwealth, and all state and territory governments (with the exception of Western Australia) have committed to join the proposed scheme. 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>.

    ↑

51. Chapter 17 of this report makes recommendations to improve the overall awareness and accessibility of the proposed scheme.

    ↑

52. Recommendations in Chs 12–16 of this report include proposals that may affect the numbers of victims accessing assistance, and certain types of assistance, under the proposed scheme.

    ↑

53. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 14.

    ↑

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

    ↑

55. Finity Consulting, National Redress Scheme Participant and Cost Estimates—Royal Commission into Institutional Responses to Child Sexual Abuse (2015).

    ↑

56. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 74.

    ↑

57. Finity Consulting, National Redress Scheme Participant and Cost Estimates—Royal Commission into Institutional Responses to Child Sexual Abuse (2015) 11–12.

    ↑

58. Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal) refers to justice reforms such as the Royal Commission into Family Violence

    ↑

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

    ↑

60. The Secretary of the Department of Justice and Regulation is required to ensure that the Victims of Crime Commissioner is provided with any employees necessary to assist the Commissioner in performing the Commissioner’s functions: Victims of Crime Commissioner Act 2015 (Vic) s 16.

    ↑

61. Staffing numbers are approximate, based on numbers provided during consultations, and are indicative only: Consultations 1 (Victim Assistance Queensland), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

    ↑

62. Application and staffing numbers were provided in Consultation 22 (Victims Services New South Wales and the Commissioner for Victims’ Rights NSW) and Submission 49 (Victims of Crime Commissioner, Victoria).

    ↑

63. Application and staffing numbers are outlined in Office of Criminal Injuries Compensation, Department of the Attorney General Western Australia, Chief Assessor’s Report 2016/17 (2017) 4.

    ↑

64. Application and staffing numbers were provided in Consultation 1 (Victim Assistance Queensland).

    ↑

65. Victims of Crime Assistance Act 1996 (Vic) s 19(2).

    ↑

66. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 64.

    ↑

67. Ibid 3.

    ↑

68. Ibid 65.

    ↑

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

    ↑

70. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 64.

    ↑

71. Ibid.

    ↑

72. Ibid.

    ↑

73. Finity Consulting, National Redress Scheme Participant and Cost Estimates—Royal Commission into Institutional Responses to Child Sexual Abuse (2015) 55.

    ↑

74. Although most jurisdictions use the term ‘offender recovery’, this report refers to offender recovery as ‘offender contribution’ as the term ‘recovery’ in this report relates to victim recovery from a criminal act.

    ↑

75. This differs to other mechanisms for offender contribution such as victim levies, discussed below.

    ↑

76. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 199.
    
    In the Supplementary Consultation Paper, the Commission used the term ‘offender recovery’.

    ↑

77. Victims of Crime Assistance Act 1996 (Vic) s 51(1).

    ↑

78. Ibid s 61.

    ↑

79. Ibid s 51(2).

    ↑

80. Criminal Injuries Compensation Act 1983 (Vic) s 27. The effect of this former provision can also be seen in the Transitional Provisions of the Victims of Crime Assistance Act 1996 (Vic) sch 1 s 8.

    ↑

81. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 197.

    ↑

82. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 49.

    ↑

83. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 33–4; Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 17.

    ↑

84. Victims Rights and Support Act 2013 (NSW) s 59.

    ↑

85. Ibid s 72.

    ↑

86. Department of Justice (NSW), Victims Services Data Profiles: Restitution 2015/6, Information Sheet (2016) 1.

    ↑

87. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 71(1)

    ↑

88. Ibid ss 72–73, 76.

    ↑

89. Victims of Crime Assistance Act 2009 (Qld) ss 107, 109.

    ↑

90. Kelly O’Dwyer, ‘Government to Review Rules for Early Release of Superannuation, including Victims of Crime Compensation’ (Media Release, 8 December 2018) <http://kmo.ministers.treasury.gov.au/media-release/118-2017/>.

    ↑

91. The Treasury (Cth), Early Release of Superannuation Benefits: Under Compassionate and Financial Hardship Grounds and for Victims of Crime Compensation, Issues Paper (2017) 23.

    ↑

92. The Treasury (Cth), Early Release of Superannuation Benefits: Under Compassionate and Financial Hardship Grounds and for Victims of Crime Compensation, Issues Paper (2017) 19.

    ↑

93. Elise Fantin ‘Victims of Crime Could Access the Superannuation of their Perpetrators under New Proposal’, ABC News (online), 26 March 2018, <www.abc.net.au/news/2018-03-26/proposal-for-victims-of-crime-access-perpetrators-superannuation/9587154>.

    ↑

94. The Treasury (Cth), Review of Superannuation and Victims of Crime Compensation (2018) <https://treasury.gov.au/consultation/c2018-t293803/>.

    ↑

95. For details of this proposal see: The Treasury (Cth), Early Release of Superannuation Benefits: Under Compassionate and Financial Hardship Grounds and for Victims of Crime Compensation, Issues Paper (2017) 23. For example, under the Victims of Crime Assistance Act 1996 (Vic) s 51, a victim may assign their right to recover from an offender to the State.

    ↑

96. The Treasury (Cth), Early Release of Superannuation Benefits: Under Compassionate and Financial Hardship Grounds and for Victims of Crime Compensation, Issues Paper (2017) 19.

    ↑

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

    ↑

98. Ibid.

    ↑

99. Ibid.

    ↑

100. Submission 19 (Schembri & Co Lawyers).

     ↑

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

     ↑

102. Submission 27 (Name withheld).

     ↑

103. Submission 41 (Springvale Monash Legal Service).

     ↑

104. Consultation 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

105. Ibid.

     ↑

106. Ibid.

     ↑

107. Ibid.

     ↑

108. Consultation 1 (Victim Assist Queensland).

     ↑

109. Ibid.

     ↑

110. Ibid.

     ↑

111. Ibid.

     ↑

112. Ibid.

     ↑

113. Ibid.

     ↑

114. Ibid.

     ↑

115. Submissions 19 (Schembri & Co Lawyers), 27 (Name withheld).

     ↑

116. Submission 41 (Springvale Monash Legal Service).

     ↑

117. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 229.

     ↑

118. Ibid.

     ↑

119. J D W E Mulder, Compensation: The Victim’s Perspective (Wolf Legal Publishers, 2013) 25.

     ↑

120. Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 123.

     ↑

121. 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.

     ↑

122. Department of Justice (NSW), Victims Services Data Profiles: Restitution 2015/6, Information Sheet (2016) 1.

     ↑

123. See, eg, Victims Rights and Support Act 2013 (NSW) s 59; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 71(1); Victims of Crime Assistance Act 2009 (Qld) ss 107–109; Victims of Crime Assistance Act 1976 (TAS) s 7A; Criminal Injuries Compensation Act 2003 (WA) s 49.

     ↑

124. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 229.

     ↑

125. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 197. See also Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 12.

     ↑

126. Consultation 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

     ↑

127. Ibid.

     ↑

128. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 72.

     ↑

129. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 11.

     ↑

130. Consultation 1 (Victim Assist Queensland).

     ↑

131. Ibid.

     ↑

132. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 198.
     
     See also Department of Justice (NSW), Victims Services Data Profiles: Restitution 2015/6, Information Sheet (2016) 2.

     ↑

133. Department of Justice (NSW), Victims Services Data Profiles: Restitution 2015/6, Information Sheet (2016) 2.

     ↑

134. Ibid 1.

     ↑

135. Ibid.

     ↑

136. As at 28 May 2018, the public consultation was ongoing: The Treasury (Cth), Review of Superannuation and Victims of Crime Compensation (2018) <https://treasury.gov.au/consultation/c2018-t293803/>.

     ↑

137. See, eg, Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 197; Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 49.

     ↑

138. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 72.

     ↑

139. See, eg, Sentencing Advisory Council (Vic), Restitution and Compensation Orders, Issues and Options Paper (2018) 4.

     ↑

140. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 72.

     ↑

141. Ibid s 71(1)

     ↑

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

     ↑

143. Ibid s 40.

     ↑

144. Schemes generally distinguish in their application between infringements and criminal offending, as well as levying different amounts for summary or indictable (serious) crimes. Terminology also differs across jurisdictions—some refer to such levies as ‘offender levies’
     
     (for example, Queensland), while others call them ‘victim levies’. The different schemes are summarised below.

     ↑

145. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 199.

     ↑

146. See, eg, Australian Broadcasting Corporation, ‘Proposal to Add Fees to Victorian Fines for Victims of Crime Fund being Considered’ ABC News (online), 6 February 2018 <www.abc.net.au/news/2018-02-06/proposal-to-add-fees-to-fines-for-victims-of-crime-fund/9399316>.

     ↑

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

     ↑

148. Australian Broadcasting Corporation, ‘Proposal To Add Fees to Victorian Fines for Victims of Crime Fund Being Considered’ ABC News (online), 6 February 2018 <www.abc.net.au/news/2018-02-06/proposal-to-add-fees-to-fines-for-victims-of-crime-fund/9399316>.

     ↑

149. Sentencing Advisory Council (Vic), Restitution and Compensation Orders, Issues and Options Paper (2018) 6.

     ↑

150. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 319.

     ↑

151. Department of Justice (NSW), Paying Costs (2017) <www.lawaccess.nsw.gov.au/Pages/representing/driving_offences_and_crime/driving_and_crime_after_court/paying_costs.aspx>. See also Victims Rights and Support Act 2013 (NSW) s 104.

     ↑

152. Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 82–83. The victims’ services levy is in addition to, and does not form part of, a fine.

     ↑

153. The levy in respect of a summary offence is $60 if the offence is expiated without the making of an enforcement determination under section 13 of the Expiation of Offences Act 1996 (SA) in relation to the expiation notice. The levy in respect of a summary offence in all other circumstances is $160: Victims of Crime (Fund and Levy) Regulations 2003 (SA) sch 1 cl 1(a)(i)–(ii).

     ↑

154. Victims of Crime (Fund and Levy) Regulations 2003 (SA) sch 1 cl 1(b).

     ↑

155. Victims of Crime Compensation Act 1994 (Tas) s 5(3).

     ↑

156. Victims of Crime Assistance Act 2006 (NT) ss 60–61.

     ↑

157. Queensland Courts, Offender Levy (2017) <www.courts.qld.gov.au/about/offender-levy>.

     ↑

158. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 332.

     ↑

159. Department of Justice (NSW), Victims Services Data Profiles: Restitution and Revenue 2016/7, Information Sheet (2017) 1.

     ↑

160. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 63. This figure includes fees for services and awards paid.

     ↑

161. Submissions 15 (Merri Health Victims Assistance Program), 18 (cohealth), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 5 (Victims of Crime Commissioner, Victoria), 8 (Victims Representatives—Victims of Crime Consultative Committee), 15 (Regional Consultation—Ballarat Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

162. Submission 41 (Springvale Monash Legal Service); Consultations 1 (Victim Assist Queensland), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

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

     ↑

164. Ibid.

     ↑

165. Ibid.

     ↑

166. Submissions 18 (cohealth), 41 (Springvale Monash Legal Service); Consultation 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

167. Submission 18 (cohealth).

     ↑

168. Submission 41 (Springvale Monash Legal Service). Safety concerns that may arise in relation to victim levies were also discussed in Consultation 4 (Victim, Witness and Court Support).

     ↑

169. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

170. Ibid; Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

171. Submissions 27 (Name withheld), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

172. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

173. Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

174. Submissions 13 (Adviceline Injury Lawyers), 27 (Name withheld); Consultation 4 (Victim, Witness and Court Support).

     ↑

175. Submission 13 (Adviceline Injury Lawyers).

     ↑

176. Submission 27 (Name Withheld).

     ↑

177. Ibid.

     ↑

178. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 319.

     ↑

179. Submissions 15 (Merri Health Victims Assistance Program), 18 (cohealth), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 5 (Victims of Crime Commissioner, Victoria), 8 (Victims Representatives—Victims of Crime Consultative Committee), 15 (Regional Consultation—Ballarat Victim Support Agencies), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

180. Submission 41 (Springvale Monash Legal Service); Consultations 1 (Victim Assist Queensland), 15 (Regional Consultation—Ballarat Victim Support Agencies).

     ↑

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

     ↑

182. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 320–2. See also Helen Kempton, ‘Fears Crime Levy Plan is Unconstitutional and the Cost of Collection Will Exceed Proceeds’, Mercury (online), 3 September 2014 <www.themercury.com.au/news/scales-of-justice/fears-crime-levy-plan-is-unconstitutional-and-the-cost-of-collection-will-exceed-proceeds/news-story/53b0df37bd81c53bfe450b6c2984b180>.

     ↑

183. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 321.

     ↑

184. See generally Graham Mayeda, ‘Squeezing Blood from the Stone: Narrative and Judicial Resistance to the Mandatory Victim Surcharge’ (2016) 21 Canadian Criminal Law Review 195, 199.

     ↑

185. See ibid 208.

     ↑

186. Submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

187. Submissions 27 (Name withheld), 38 (Ryan Carlisle Thomas Lawyers).

     ↑

188. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 326.

     ↑

189. Submission 38 (Ryan Carlisle Thomas Lawyers); Consultation 17 (Family Violence Diverse Communities and Intersectionality Working Group).

     ↑

190. This was also discussed in relation to restitution and compensation orders in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 242.

     ↑

191. Submissions 13 (Adviceline Injury Lawyers), 27 (Name withheld); Consultation 4 (Victim, Witness and Court Support).

     ↑

192. Submission 13 (Adviceline Injury Lawyers).

     ↑

193. For example, in relation to such concerns being expressed in the context of Tasmania, see Helen Kempton, ‘Fears Crime Levy Plan is Unconstitutional and the Cost of Collection Will Exceed Proceeds’, Mercury (online), 3 September 2014 <www.themercury.com.au/news/scales-of-justice/fears-crime-levy-plan-is-unconstitutional-and-the-cost-of-collection-will-exceed-proceeds/news-story/53b0df37bd81c53bfe450b6c2984b180>.

     ↑

194. See, eg, Sentencing Advisory Council (Vic), The Imposition and Enforcement of Court Fines and Infringement Penalties in Victoria Report (2014).

     ↑

195. Kate Warner and Jenny Gawlik, ‘Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative Justice’ (2003) 36(1) Australian and New Zealand Journal of Criminology 60, 60.

     ↑

196. James Hancock, ‘SA Victims of Crime Payments to Double, Lawyers Say Most Will Not Benefit’, ABC News (online), 29 August 2014
     
     <www.abc.net.au/news/2014-08-29/sa-government-increase-maximum-payout-to-victims-of-crime/5706500>.

     ↑

197. Simon Power, ‘Offender Levy Nearly Double Projection in First Year’ (Media Release, 21 July 2011).

     ↑

198. The Commission notes that the Sentencing Advisory Council has suggested that state enforcement of restitution and compensation orders in relation to offenders could be introduced by transferring such orders to IMES in the Department of Justice and Regulation, which oversees the execution of civil enforcement mechanisms by the Sheriff: Sentencing Advisory Council (Vic), Restitution and Compensation Orders, Issues and Options Paper (2018) xxii, 44.

     ↑

199. This jurisdiction uses the term offender levy rather than victim levy, representing the application of the levy to offenders.

     ↑

200. Department of Justice Northern Ireland, Offender Levy and Victims of Crime Fund: A Consultation—Summary of Responses and Way Forward (2010) 18.

     ↑

201. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 320–2. See also Helen Kempton, ‘Fears Crime Levy Plan is Unconstitutional and the Cost of Collection Will Exceed Proceeds’, Mercury (online), 3 September 2014 <www.themercury.com.au/news/scales-of-justice/fears-crime-levy-plan-is-unconstitutional-and-the-cost-of-collection-will-exceed-proceeds/news-story/53b0df37bd81c53bfe450b6c2984b180>.

     ↑

202. Heather Douglas and April Chrzanowski, ‘A Consideration of the Legitimacy and Equity of Queensland’s Offender Levy’ (2013) 24(3) Current Issues in Criminal Justice 317, 321.

     ↑

203. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 49–50.

     ↑

204. Submission 49 (Victims of Crime Commissioner, Victoria). See also, eg, Australian Broadcasting Corporation, ‘Proposal to Add Fees to Victorian Fines for Victims of Crime Fund being Considered’ ABC News (online), 6 February 2018 <www.abc.net.au/news/2018-02-06/proposal-to-add-fees-to-fines-for-victims-of-crime-fund/9399316>.

     ↑

205. Justice Connect, Infringements and Public Spaces (accessed 29 May 2018) <www.justiceconnect.org.au/our-programs/homeless-law/law-and-policy-reform/infringements-and-public-space-offences>.

     ↑