Victims of Crime Assistance Act 1996: Report (html)

4. Victoria’s existing victims of crime financial assistance scheme

Introduction

4.1 This chapter sets out the current approach to, and the broader context of, state-funded financial assistance for victims of crime in Victoria.

4.2 The chapter begins by providing an overview of the Victims of Crime Assistance Act 1996 (Vic), which establishes the legal framework for the provision of state-funded financial assistance to victims of crime in Victoria.

4.3 The chapter then outlines the broader context within which the Act and the Victims of Crime Assistance Tribunal function.

The Victims of Crime Assistance Act 1996

4.4 The Victims of Crime Assistance Act 1996 (Vic) (the Act) was assented to on 17 December 1996 and came into operation on 1 July 1997. The Act repealed the Criminal Injuries Compensation Act 1983 (Vic) and abolished the Crimes Compensation Tribunal, replacing it with a new tribunal, the Victims of Crime Assistance Tribunal (VOCAT) as the body to determine all applications for financial assistance made under the Act. VOCAT is the key body to which both the supplementary and the first terms of reference relate.

The purpose of the Act

4.5 The purpose of the Act is to ‘provide assistance to victims of crime’,^[1] and its objectives are to:

• assist victims of crime to recover by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, as a direct result of the crime^[2]

• pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime^[3]

• allow victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.^[4]

4.6 The Act’s purpose and objectives also state that:

• Awards of financial assistance (including special financial assistance) are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.^[5]

• The scheme provided by the Act is intended to complement other services provided by government to victims of crime.^[6]

4.7 The effect of these provisions is that the Act is intended as an option of last resort. However, as discussed in Chapter 11, for many victims the Act is often the only avenue of financial assistance available. The appropriateness of the purpose and objects provisions of the Act are considered further in Chapter 11.

4.8 In introducing the Act to Parliament, the then Attorney-General, the Hon. Jan Wade MP stated in her Second Reading Speech that the policy intent was to establish an integrated model of assistance for victims of crime,^[7] more responsive to the needs of victims, in order to ‘maximise the potential for a victim’s recovery from the psychological and physical effects of a violent offence’.^[8]

4.9 The Attorney-General stated that the Act would address the needs of victims of violent crimes and achieve an appropriate balance between the interests of victims, the state and the rights of offenders.^[9] Furthermore, the Act would:

• address the physical and psychological needs of a victim of crime by ensuring that appropriate services were available to help the victim make a speedy recovery

• wherever practicable, ensure that convicted offenders made good the harm caused by their crimes by paying compensation for pain and suffering to the victim

• ensure that procedures within the criminal justice system provided a quick and economical means for the redress of harm suffered as a result of the offender’s criminal conduct

• ensure that services provided by the state to victims of crime were affordable.^[10]

4.10 As noted in Chapter 3, the Act removed the provision of state-funded compensation for ‘pain and suffering’ for victims, which had been available under Victoria’s preceding criminal injuries compensation laws.^[11] To address this omission, the Victims of Crime Assistance (Amendment) Act 2000 (Vic) later introduced new awards of special financial assistance for primary victims ‘who suffer significant adverse effects as a direct result of an act of violence’.^[12] While providing for lump-sum payments, this amending legislation did not reinstate compensation for pain and suffering as constituted by previous acts.

Overview of the Act

4.11 The Act is structured in five parts:

• Part One sets out the Act’s purpose and objectives and defines key terminology. The purpose and objectives are discussed above.

• Part Two sets out the criteria for a victim’s eligibility for assistance under the Act.

• Part Three establishes VOCAT, details the form and timing for applications, sets out the procedures and powers of the Tribunal, including the ability to determine matters with or without hearing^[13] and to notify any person VOCAT considers to have a legitimate interest, including the alleged offender,^[14] and outlines the procedures for the making of awards.

• Part Four sets out procedures for review, variation and refund of awards.

• Part Five contains miscellaneous provisions.

4.12 Under the Act a person is eligible to apply for financial assistance if they are the primary, secondary or related victim of an act of violence,^[15] and that act of violence directly results in their injury or death,^[16] or, for primary victims, a significant adverse effect.^[17]

4.13 As discussed in Chapter 12, the Act defines who is a primary, secondary or related victim.^[18] It is the victim categories that determine the types and amounts of financial assistance available under the Act.

4.14 As also discussed in Chapter 12, the effect of the victim categories and the test for eligibility, including the defined terms, is that not all people who may identify as a victim of crime may be recognised under the Act. This approach contrasts with the more expansive approach adopted in other Victorian legislation, such as the Victims’ Charter Act 2006 (Vic), which defines a victim as a person who has suffered injury or death as a result of a criminal offence, or a family member of a child who has suffered injury or death,^[19] and the Sentencing Act 1991 (Vic), which defines a victim as a person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence.^[20]

Establishment of VOCAT

4.15 The Act establishes VOCAT as the body to hear and determine applications for financial assistance made by victims of crime.^[21] VOCAT is therefore the key body to which both the supplementary and the first terms of reference relate.

4.16 The Act prescribes the functions, powers and procedures of VOCAT and requires that in all matters before it, VOCAT must act fairly, according to the substantial merits of the case and with as much expedition (promptness) as the requirements of the Act and a proper determination of the matter permit.^[22]

4.17 VOCAT consists of tribunal members, who are magistrates. It comprises the Chief Magistrate and all magistrates and reserve magistrates under the Magistrates’ Court Act 1989 (Vic).^[23] Each VOCAT hearing is constituted by a single tribunal member.^[24]

4.18 Although located within the Magistrates’ Court of Victoria, VOCAT is a separate entity with its own jurisdiction.

4.19 The Chief Magistrate appoints supervising magistrates to support the operation of VOCAT. Supervising magistrates encourage best practice across VOCAT and represent VOCAT in its dealings with other members of the judiciary, staff and community.^[25]

4.20 In addition, the Chief Magistrate has delegated tribunal powers to 10 judicial registrars to determine certain types of application, including interim awards of financial assistance.^[26] In 2016–17 judicial registrars heard and determined 21.4 per cent of all VOCAT final awards.^[27]

4.21 VOCAT operates in all 51 Magistrates’ Court venues across Victoria.^[28]

4.22 VOCAT is a tribunal, not a court. It exercises administrative power, not judicial power. Its functions are performed by judicial officers, namely magistrates.

4.23 VOCAT hearings are less formal than court hearings^[29] and VOCAT is not bound by the rules of evidence.^[30] Nevertheless, VOCAT’s procedure is a legal process, bound by the provisions of the Act.^[31]

4.24 In practice the majority of applications are determined without hearing—that is ‘on the papers’.^[32] In addition, many of the functions of VOCAT are performed by judicial registrars.^[33]

4.25 As discussed in Chapters 5 and 8, the effect of these practices is that VOCAT predominately operates as an administrative system although it is embedded within a tribunal-based system.

4.26 Figure 1 over the page outlines the VOCAT process and its relationship with other criminal and civil processes for victims of crime.

Figure 1: The VOCAT process for victims in context

Demand for VOCAT

4.27 Between 2001–02 and 2013–14 there was a 337 per cent increase in VOCAT’s case load,^[34] and in 2016–17, 7312 applications were made to VOCAT, an increase of 17.5 per cent from 2015–16.^[35] In addition, in 2016–17, there were 4739 awards of financial assistance—an increase of 13.9 per cent from the previous financial year,^[36] and what VOCAT has described as ‘one of the biggest growths in the Tribunal’s history’.^[37]

4.28 The average amount of financial assistance awarded by VOCAT in 2016–17 was $7983.^[38]

Role of VOCAT

4.29 VOCAT describes its role as one of hearing and determining applications for financial assistance made by victims of ‘violent crime’ and as providing a ‘sympathetic and compassionate forum for applicants to relate their experience as victims of crime’.^[39]

4.30 VOCAT has acknowledged it has an important role to play in providing practical and flexible assistance to victims, including in providing ‘an empathetic forum for victims to tell their story and have their experiences of loss and suffering acknowledged by a judicial officer’.^[40]

4.31 In addition, the importance of its role in ensuring victims are heard is highlighted in the joint submission of VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, which stated that ‘for some victims, their recovery journey includes having their “day in Court”, to have their experience formally acknowledged and to have their story believed’.^[41]

Part of Victoria’s broader victims’ rights and supports framework

Victims’ rights

4.32 The past decade has seen an increased focus on the needs and rights of victims of crime in Victoria.^[42] This focus has been on both assistance and support needs as well as victims’ rights in the criminal justice system.

4.33 As the Commission acknowledged in its 2016 information paper in relation to its review of the role of victims of crime in the criminal trial process:

the landscape has changed dramatically for victims of crime. The welfare of victims is now a central concern to governments, as reflected in the enactment of victims’ rights charters, victims’ compensation schemes and victim support services.^[43]

4.34 These needs and rights are reflected both in legislation and government policy.

4.35 The Victims’ Charter Act 2006 (Vic) sets out principles for how Victoria’s criminal justice system and victim service agencies should respond to victims of crime.^[44] These principles include the right of victims to information,^[45] respectful treatment^[46] and some participatory rights, such as the right to make a victim impact statement during the sentencing phase of a criminal trial.^[47]

4.36 The Victims’ Charter Act reaffirms the right of victims to apply for compensation under the Act and to apply to a court for an order under the Sentencing Act 1991 (Vic) that the offender pay the victim compensation.^[48]

4.37 The Victims of Crime Commissioner Act 2015 (Vic) establishes the Victims of Crime Commissioner and the Victims of Crime Consultative Committee.^[49]

4.38 The functions of the Victims of Crime Commissioner are to:

• advocate for the recognition, inclusion, participation of, and respect for, victims of crime by government departments and agencies

• carry out inquiries and report on systemic victim-of-crime matters to the Attorney-General

• provide the government with advice on improvements to the justice system to meet the needs of victims.^[50]

4.39 The Victims of Crime Consultative Committee functions as a forum for victims of crime, justice agencies and victim services to discuss improvements to the criminal justice and victim support system and to promote the interests of victims of crime.^[51]

The broader victim support framework

4.40 As noted in the supplementary consultation paper, access to financial assistance under the Act and through VOCAT is only one aspect of a victim’s path to recovery.^[52] Victims are unlikely to interact only with VOCAT.

4.41 In practice, most victims also engage with the victim and witness support system and/or with broader community or health system supports. This may include government-funded victim and witness services, as well as specialised support services such as family violence or sexual assault services. In some cases, victims may be involved with a number of different government and non-government support agencies. Victims may also use other general support services, such as their local health centre or general practitioner. The figure below shows Victoria’s victim and witness support system, including the Victims of Crime Commissioner and the Victims of Crime Consultative Committee discussed earlier above. The figure below shows Victoria’s victim support framework.

Figure 2: Victoria’s victim support framework

4.42 As evident from Figure 2 above, the current victim and witness service scheme is fragmented, with different services delivered through multiple government and non-government entities. For example, generalist victim and witness support is provided by the Department of Justice and Regulation, while specialist victim responses, such as for family violence and sexual assault, are funded through the Department of Health and Human Services.

4.43 The Department of Justice and Regulation coordinates the delivery of:

• the Victims of Crime Helpline

• the Victims Assistance Program (VAP)

• the Victims Register

• the Prisoner Compensation Quarantine Fund

• the Child Witness Service.^[53]

4.44 With the exception of the Child Witness Service, these programs and initiatives are coordinated by the Victims Support Agency (VSA) within the Department of Justice and Regulation.

4.45 The VSA coordinates delivery of the VAP through contracted community-based organisations which provide victim case management services, including practical support or therapeutic interventions for victims of violent crime. VAPs provide a range of practical support, information and assistance, including assistance with VOCAT applications and victim impact statements for use in sentencing hearings.

4.46 Victoria Police’s Victims Advisory Unit provides 24-hour assistance to Victoria Police members attending crime scenes. Victim Liaison Officers within the Victims Advisory Unit assess victim needs, provide psychological ‘first aid’, coordinate crime scene clean-up, provide referrals to support services and organise travel arrangements for family members.^[54] Victim liaison officers do not provide long-term case management services like VAPs.

4.47 Witness assistance in Victoria is provided by the Child Witness Service (also part of the Department of Justice and Regulation) and the Office of Public Prosecutions’ Witness Assistance Service (WAS). The WAS only provides assistance in prosecutions pursued by the Director of Public Prosecutions.^[55]

4.48 The non-profit organisation Court Network Victoria provides court support for victims and witnesses as part of a broader volunteer-based model and assists all court users on a non-partisan basis. The Salvation Army also provides some court-based support services and may assist some victims and witnesses as well as other court users.^[56]

4.49 In addition to the above, more specialised support and assistance exists for specific types of crime. For example, support for victims of family violence is available through Victoria’s specialist family violence system.^[57] This includes:

• specialist family violence services (including specialist women’s and children’s services)

• police, courts and legal services

• child protection and family services

• housing and homelessness services

• health services (including mental health, drug and alcohol services).^[58]

4.50 As recommended by the Royal Commission into Family Violence, the Victorian Government through the agency, Family Safety Victoria, has committed to establishing support and safety hubs across Victoria by 2021 to coordinate family violence victims’ access to this support.^[59]

4.51 Linkages between victims, victim and family violence support services and the justice system, including VOCAT, are intended to improve once these hubs are established.^[60] It is not yet clear whether legal assistance will be available through the hubs or how connections to the courts or police will be improved for victims attending the hubs.

4.52 Victims of sexual assault can access specialist services through the Victorian Centres Against Sexual Assault (CASAs), funded by the Department of Health and Human Services. There are 15 CASAs across Victoria. They provide:

• 24-hour emergency or crisis care for victims of sexual assault.

• crisis counselling

• provision of information and referral to other agencies

• practical assistance and advocacy

• coordination of service provision, including police, forensic, child protection and medical personnel.^[61]

4.53 Additional specialised responses are also available through six multi-disciplinary centres across Victoria, which bring together specialised services including police, child protection, nursing and counselling services at the one location.^[62]

4.54 Some of these specialist services also provide victims with information about VOCAT.

Complementary to other restitution and compensation avenues

4.55 As noted in both the first and the supplementary consultation papers, in Victoria, victims of crime can:

• seek compensation or restitution under the Sentencing Act 1991 (Vic)

• pursue a civil action against an offender for an award of damages, or

• apply for state-funded financial assistance under the Victims of Crime Assistance Act 1996 (Vic).^[63]

4.56 Restitution and compensation orders can be made under Part 4 of the Sentencing Act 1991 (Vic).^[64] Orders are made as part of the sentencing process and can be made for loss or injury caused as a direct result of the offence where an offender has pleaded guilty or been found guilty.^[65] Restitution orders relate specifically to restoration of stolen goods connected to theft. A compensation order can be made against the offender for the value of any loss or damage as a result of an offence. Compensation orders can also be made for any injury directly caused, as well as for pain and suffering and some expenses incurred (or likely to be incurred).^[66]

4.57 Victims of crime can also sue the offender for damages in a common law civil action. However, civil action can be a significant financial and procedural burden for victims of crime, and the Sentencing Act’s provisions were intended to be a faster and cheaper alternative to pursuing civil proceedings.^[67]

4.58 Compensation orders under the Sentencing Act can result in awards much higher than awards by VOCAT,^[68] particularly where an offender has the means to pay, which is a consideration of the court in making orders under that Act.^[69] As the Sentencing Advisory Council has noted, compensation orders for injury are rarely made.^[70] In addition, enforcing such orders often requires significant time and effort, and can be costly to pursue.^[71]

4.59 The Act therefore gives victims an avenue for assistance where they cannot obtain financial assistance from other sources.^[72]

4.60 Victoria’s family violence service system provides additional state-funded financial assistance for victims of family violence through family violence flexible support packages (FSPs). FSPs enable family violence services to access funds to provide victims with urgent and critical support tailored to their specific needs.^[73] Flexible support packages can be made up to $7000, with an average cost of $3000.^[74] Financial assistance can be sought for safety expenses, housing, medical costs and a broad range of social, economic and community connectedness activities.

4.61 FSPs are intended to assist victims to stabilise and improve their safety in a crisis or post-crisis situation. In this respect, there are parallels with VOCAT’s awards of financial assistance for safety-related expenses. The case management framework for provision of FSPs requires case managers to identify the ways in which the package will support the long-term health and wellbeing of the victim.

Reviews, inquiries and research relevant to Victoria’s existing scheme

Women’s Legal Service Victoria—Rebuilding Strength Practitioner Survey (2017)

4.62 Along with providing assistance to individual victims of family violence with their VOCAT applications, the Women’s Legal Service Victoria’s Rebuilding Strength project^[75] aimed to ‘identify systemic issues that women experiencing family violence face in their engagement with VOCAT’.^[76]

4.63 As part of the project, the Women’s Legal Service Victoria surveyed legal practitioners in 2017 to examine the experiences of lawyers and their clients with the VOCAT process. Fifty-eight practitioners responded to the survey, including private solicitors and community legal centre lawyers.^[77]

4.64 The preliminary results showed:

• Over 75 per cent of survey participants had filed VOCAT applications outside the two-year time limit.^[78]

• Approximately half the survey participants had encountered issues regarding client eligibility for VOCAT, particularly issues relating to family violence not falling within the definition of ‘act of violence’ under the VOCAA.^[79]

• Many practitioners had seen multiple incidents of family violence being reduced to a single act of violence for the purposes of the VOCAT application.^[80]

• Approximately half the participants had made VOCAT applications for clients who had not made police statements, resulting in a range of issues, including refusal of applications under section 52 of the VOCAA, difficulty providing evidence of eligibility and notification of the alleged offender.^[81]

• Around 66 per cent of participants had experienced clients retracting police statements, making statements of no complaint or failing to cooperate with criminal investigations or proceedings, resulting in refusal of applications under section 52 of the VOCAA, as well as requiring lawyers to make submissions addressing failure to cooperate with police or prosecution.^[82]

• The majority of practitioners had experienced delay in VOCAT applications, resulting in negative impacts on a client’s psychological recovery and access to services.^[83]

• Approximately three-quarters of participants had experienced potential notification of an alleged offender, including a mix of successful and unsuccessful objections to offender notification.^[84]

• Approximately two-thirds of participants considered the quantum of VOCAT awards to be inadequate.^[85]

Victorian Law Reform Commission—The Role of Victims of Crime in the Criminal Trial Process (2016)

4.65 As noted in Chapter 2, the Commission’s report The Role of Victims of Crime in the Criminal Trial Process made a number of recommendations to improve victim experiences during the criminal trial process. Of relevance to this reference, the Commission made recommendations about restricting access to, and use of, VOCAT records to protect victims of crime during the VOCAT and criminal trial process.^[86] These recommendations are revisited in Chapter 14.

4.66 In addition, the Commission identified concerns regarding the accessibility of VOCAT for victims, particularly victims in regional areas who may be unable to access legal advice and assistance.^[87]

4.67 Although an extensive review of VOCAT was beyond the Commission’s terms of reference,^[88] stakeholders told the Commission:

Applying to VOCAT for financial assistance can be a validating and restorative process for many victims, although it can also be difficult or stressful, depending on whether the application is successful and on the attitude of the presiding tribunal member.^[89]

Women’s Legal Service Victoria—Report on the Stepping Stones Project (2015)

4.68 The report, Stepping Stones: Legal Barriers to Economic Equality after Family Violence examined the legal and economic problems arising from family violence. The report was based on interviews with 17 women who were part of the Stepping Stones project, a project undertaken by the Women’s Legal Service Victoria providing free legal advice and financial counselling to women experiencing family violence and financial hardship.^[90]

4.69 Although not focused solely on VOCAT,^[91] the report identified particular barriers for victims of family violence in accessing VOCAT:

the legislation creates significant barriers to victims of family violence obtaining assistance because the law is based on a model of “stranger” violence and fails to recognise the dynamics of family violence.^[92]

4.70 The report noted that some women found the VOCAT process to be validating^[93] and a practical source of financial assistance when no other avenues of assistance are available.^[94]

4.71 The report also identified the following areas of concern with the current operation of the VOCAA and VOCAT:^[95]

• legislative barriers for victims of family violence, specifically sections 29, 34(2) and 52 of the VOCAA, which relate to application time limits; VOCAT giving notice of a hearing to an alleged offender; and requirements to report and cooperate with police and prosecution

• lack of awareness of VOCAT

• delay in receiving a VOCAT award.

4.72 The report recommended the Department of Justice and Regulation undertake a comprehensive review of VOCAT to examine accessibility for victims of family violence.^[96]

Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations—Betrayal of Trust (2013)

4.73 The report of the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, Betrayal of Trust, was discussed in Chapter 2. As already noted, the report considered VOCAT as an alternative to civil litigation in cases of criminal child abuse.^[97]

4.74 The report noted that ‘very few victims spoke about VOCAT’.^[98] Nonetheless, ‘despite the small amount of evidence received’, the report made the following relevant findings:^[99]

• VOCAT provides a viable alternative to civil litigation for victims of criminal child abuse because of its ability to provide an independent acknowledgment of harm by magistrates, giving ‘authority and legitimacy to victims’ claims’, its non‑adversarial approach, and the supports provided for victims.^[100]

• Limitations of VOCAT include the two-year time limit placed on claims, the limited compensation available and the lack of ongoing financial support for victims which does not accommodate victims who suffer ongoing or permanent injury.^[101]

4.75 The report recommended that:

• the VOCAA be amended to specify that no time limits apply for applications for assistance by victims of criminal abuse in organisational settings^[102]

• the Victorian Government review the functions of VOCAT to consider its capacity to administer a specific scheme for victims of criminal child abuse.^[103]

4.76 In February 2018 the Justice Legislation Amendment (Victims) Act 2018 (Vic) was introduced, which removed the two-year time limit for VOCAT applications for victims of physical or sexual abuse that occurred when they were under the age of 18 years.^[104]

Victims Support Agency, Department of Justice and Regulation—Counselling for Victims of Crime (2011)

4.77 The 2011 report by the Victims Support Agency of the Victorian Department of Justice and Regulation, Counselling for Victims of Crime, examined the counselling experiences of 62 applicants to VOCAT. ^[105] Although this report provided insight into the experiences of a relatively large sample of VOCAT applicants, its focus was limited to a consideration of the process for obtaining counselling through VOCAT, rather than victims’ broader experiences.

4.78 Relevantly, the report found that:

• A majority of participants (83 per cent) reported satisfaction with the counselling they received.^[106]

• There was overall a high level of satisfaction with the process of obtaining VOCAT-funded counselling, although qualitative data ‘reflected significant levels of frustration’.^[107]

• The most common problems associated with obtaining counselling could be ‘broadly associated with the need to comply with the requirements of a legal system’ and participants’ general lack of knowledge and understanding of the VOCAT system.^[108]

• Many participants experienced problems with finding a lawyer or dealing with their lawyer in relation to their VOCAT application.^[109]

4.79 Although the focus of the report was participants’ experiences of counselling awarded through VOCAT, the report also noted:

Comments about the VOCAT hearing were mixed. While many participants made positive comments about Tribunal Members and felt acknowledged and validated by the hearing … some participants felt distressed by having to recount details of the crime they experienced. One participant was distressed by the Tribunal member’s comments.^[110]

Whittlesea Community Legal Service—Victims of Crime Assistance Tribunal Capacity Building Project (2011)

4.80 The Whittlesea Community Legal Service Victims of Crime Assistance Tribunal Capacity Building Project was undertaken in response to ‘a noted decreased in the total amount of compensation awarded by VOCAT in 2006/2007 at a time when there was a recorded increased in the rate of crimes against the person’.^[111]

4.81 The research involved consultations with individuals and organisations involved in the VOCAT process, including legal practitioners, workers from the then-Victims Assistance and Counselling Programs (now Victims Assistance Programs), Victoria Police and VOCAT.^[112]

4.82 Although when the project’s discussion paper was published in 2011 it acknowledged that ‘the situation had changed markedly with an increase in both the total number of applications finalised by VOCAT and the total amount of compensation awarded by VOCAT’,^[113] a number of recommendations were nevertheless made to address perceived barriers to VOCAT, including:^[114]

• lack of awareness of eligibility for VOCAT

• difficulty accessing legal representation

• difficulties associated with obtaining documentation to support an application

• delays in receiving VOCAT awards

• the potential for the alleged offender to be notified of the VOCAT hearing.

Hayley Catherine Clark—A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (2011)

4.83 Hayley Catherine Clark’s PhD thesis A Fair Way to Go presented findings in relation to Victoria’s criminal justice system—including VOCAT—based on interviews with 22 victims of sexual assault.^[115]

4.84 Findings of particular relevance were that:

• for some participants, VOCAT was ‘their primary means of securing justice, for others it was of little significance, and in some instances it resulted in further harm’.^[116]

• ‘hearings provided more meaning than the (often nominal) monetary award itself’,^[117] and that ‘focusing on aspects of validation and vindication within the tribunal procedures may provide greater benefit to victim/survivors of sexual assault than the award of money itself’.^[118]

4.85 The thesis considered that because the criminal justice system can be detrimental to victims’ wellbeing:

• ‘A greater separation of compensation schemes from the criminal justice system may provide a more encouraging and accessible service for victim/survivors.’^[119]

• A state-funded financial assistance scheme should provide a greater emphasis on listening to victim/survivors’ personal stories, acknowledging payments as nominal and providing a ‘forum through which victim/survivors can discuss their experience and the impacts the crime/s has had on their lives in their own words’.^[120]

Victims of Crime Assistance Tribunal—Koori VOCAT List Pilot: Review and Recommendations (2010)

4.86 In 2006, VOCAT established a pilot specialist Koori List which is now a permanent part of VOCAT operations. The list was created to ensure that the purposes and objectives of the Act could be achieved for Koori applicants.^[121]

4.87 A review of the pilot was conducted in 2010 and it found improved processing times since the introduction of the Koori List.^[122] The review also found that the introduction of the Koori List had had a positive impact on Koori applicants’ level of engagement with VOCAT and their willingness to continue with their application.^[123]

4.88 The review provided insight into stakeholder views on the VOCAA and VOCAT including:

• The VOCAA is very complex and that most Koori applicants would require legal representation.^[124]

• Matters involving childhood sexual assault raise issues of lack of reporting to police and notification of the alleged offender.^[125]

• There are issues relating to delays in obtaining information and records from police.^[126]

• There are often issues of delay for the Koori community—both in relation to reporting a criminal act to police, and making an application to VOCAT.^[127]

• VOCAT information and correspondence was too complex for victims without legal representation.^[128]

• Concerns about the possibility of offender notification, particularly its cultural impact.^[129]

• Concerns about culturally appropriate counsellors and psychologists.^[130]

• The need for additional information and support in relation to VOCAT hearings and increased cultural sensitivity including holding hearings in culturally appropriate and/or neutral venues.^[131]

• The positive benefits of having a dedicated registrar managing applications, being a central point of management and communication.^[132]

4.89 The review made a number of recommendations aimed at improving the ongoing operation of the Koori List.^[133]

Department of Justice—Reviewing Victims of Crime Compensation: Sentencing Orders and State-Funded Awards (2009)

4.90 In 2009 the then-Department of Justice released a discussion paper examining Victorian’s schemes for victim compensation, including VOCAT. ^[134]

4.91 The discussion paper described the VOCAA as ‘complex and difficult for victims to understand’.^[135] Issues noted were:

• the difficulties for victims in finding lawyers who have sufficient expertise to assist with VOCAT applications, particularly in rural and regional areas^[136]

• the ‘potentially traumatic’ processes involved for a victim where an alleged offender is given the opportunity to be heard at a VOCAT hearing^[137]

• the long-term sustainability of VOCAT’s case load in the context of its operation within the organisational structure of the Magistrates’ Court of Victoria^[138]

• delays in victims receiving awards and inconsistent decision making^[139]

• difficulties with the state recovery of assistance awards under the VOCAA.^[140]

4.92 The discussion paper also noted a number of advantages of the VOCAA and VOCAT:^[141]

• the lower burden of proof required to prove that a criminal act occurred

• the recovery focus of the VOCAA, directing assistance towards counselling, medical expenses and other expenses that assist with recovery

• the accessibility of VOCAT through the 51 Magistrates’ Court locations

• the availability of interim awards.

4.93 In particular, the discussion paper noted that:

Having the matter heard by a tribunal member, who listens to a victim’s story and acknowledges their experience, can be a therapeutic experience for some applicants. However, attending a hearing and giving evidence about the criminal act may further distress others.^[142]

4.94 The discussion paper also noted that while the VOCAA ‘suggests an assumption that the offender or other state-funded compensation schemes are primarily responsible for compensating victims’, in practice ‘VOCAT is often used as the primary source of assistance’.^[143]

4.95 The discussion paper also noted increased access to VOCAT for Aboriginal victims of crime as a result of the Koori VOCAT list^[144] and an overall growth in demand and the amounts being awarded by VOCAT.^[145]

4.96 The discussion paper outlined a number of options for reform, including whether:

• an administrative model of state-funded financial assistance would be more effective

• victims should have to prove that they have suffered an injury

• the award caps should be reviewed

• VOCAT should be centralised to improve efficiency and consistency

• the state should seek to recover VOCAT awards from offenders

• a victim compensation levy should be imposed on offenders to assist with funding victim compensation.^[146]

4.97 A final report of the review was never released.

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

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2. Ibid s 1(2)(a).

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

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4. Ibid s 1(2)(c).

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5. Ibid s 1(3).

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6. Ibid s 1(4).

   ↑

7. Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1024 (Jan Wade, Attorney-General).

   ↑

8. Ibid 1023.

   ↑

9. Ibid.

   ↑

10. Ibid.

    ↑

11. See, eg, Criminal Injuries Compensation Act 1983 (Vic) s 18.

    ↑

12. See Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1911 (Rob Hulls, Attorney-General).

    ↑

13. See Victims of Crime Assistance Act 1996 (Vic) ss 33 and 34.

    ↑

14. Ibid s 34.

    ↑

15. Ibid s 25(1).

    ↑

16. Ibid ss 7, 9 and 11.

    ↑

17. Ibid s 8A.

    ↑

18. Ibid ss 7, 9 and 11.

    ↑

19. Victims’ Charter Act 2006 (Vic) s 3(1).

    ↑

20. Sentencing Act 1991 (Vic) s 3(1).

    ↑

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

    ↑

22. Ibid s 32.

    ↑

23. Ibid s 19(2).

    ↑

24. Ibid s 21(1).

    ↑

25. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 14.

    ↑

26. Ibid 13 and 25.

    ↑

27. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 28.

    ↑

28. Ibid 13.

    ↑

29. VOCAT is not required to conduct itself in a formal manner: Victims of Crime Assistance Act 1996 (Vic) s 38(1)(a)

    ↑

30. Ibid s 38. See also Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 8.

    ↑

31. VOCAT has the functions, powers and duties conferred on it by the Act: Victims of Crime Assistance Act 1996 (Vic) s 20. See also Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime: An Examination of the Counselling Experiences of 62 Applicants to the Victorian Victims of Crime Assistance Tribunal (June 2011) 63.

    ↑

32. In 2016–17 applications were determined at hearings in 14% of cases, which means that 86% of cases were determined on the papers: see Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 36.

    ↑

33. Judicial registrars determine approximately 20% of all VOCAT applications, eg in 2016–17 judicial registrars finalised 1539 applications: Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 37.

    ↑

34. 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.

    ↑

35. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 32.

    ↑

36. Ibid.

    ↑

37. Ibid 14.

    ↑

38. Ibid 33.

    ↑

39. Victims of Crime Assistance Tribunal, Our Role (2016) <www.vocat.vic.gov.au/about-tribunal/our-role>.

    ↑

40. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 8. See also Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 17.

    ↑

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

    ↑

42. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 10.

    ↑

43. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process—Victims’ Rights and Human Rights: The International and Domestic Landscape, Information Paper 4 (2016) 22.

    ↑

44. Victims’ Charter Act 2006 (Vic) s 1.

    ↑

45. Ibid ss 7–11.

    ↑

46. Ibid s 6.

    ↑

47. Ibid s 13.

    ↑

48. Ibid s 16.

    ↑

49. Victims of Crime Commissioner Act 2015 (Vic) s 1.

    ↑

50. Ibid s 13(1).

    ↑

51. Ibid s 32.

    ↑

52. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 11.

    ↑

53. Victims Support Agency, Department of Justice and Regulation (Vic), Victims of Crime (2017) <www.victimsofcrime.vic.gov.au/>.

    ↑

54. Victoria Police, Meeting the Needs of Victims within a Policy Context (2011) <www.aic.gov.au/media_library/conferences/2011-victim/presentations/green.pdf>.

    ↑

55. The Witness Assistance Service receives referrals in matters prosecuted by the Director of Public Prosecutions. In specific types of case, referral is mandatory.

    ↑

56. Magistrates’ Court of Victoria, Salvation Army Court and Prison Services (2012) <www.magistratescourt.vic.gov.au/court-support-services/support-and-assistance-services>.

    ↑

57. The family violence ‘system’ is comprised of a number of separate, yet interconnected, support components. See, eg, Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 19.

    ↑

58. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 1, 75.

    ↑

59. Victorian Government, Family Violence Reform Support and Safety Hubs (2018) <www.vic.gov.au/familyviolence/support-and-safety-hubs.html>

    ↑

60. Department of Premier and Cabinet (Vic), Support and Safety Hubs: Statewide Concept (2017) 53.

    ↑

61. Department of Health and Human Services (Vic), Sexual Assault Support Services (2010) <www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/sexual-assault/support-services>.

    ↑

62. Office of the Minister for Families and Children (Vic), ‘One-Stop Support Centre for Sexual Assault Victims in Gippsland’ (Media Release,
    
    18 February 2016) 1.

    ↑

63. 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. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 131.

    ↑

64. Sentencing Act 1991 (Vic) pt 4. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

    ↑

65. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

    ↑

66. Ibid 132. See also R v Ross (2007) 17 VR 80, [19] (Vincent JA, Chernov JA and Whelan AJA agreeing).

    ↑

67. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 133–4.

    ↑

68. See Table 1 ‘Awards made under section 85B of the Sentencing Act 1991 (Vic) compared to VOCAT awards’ in Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 17.

    ↑

69. Sentencing Act 1991 (Vic) s 85H.

    ↑

70. Sentencing Advisory Council (Vic), Restitution and Compensation Orders: Issues and Options Paper (2018) 27.

    ↑

71. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 18.
    
    See also Sentencing Advisory Council (Vic), Restitution and Compensation Orders: Issues and Options Paper (2018) Ch 3.

    ↑

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

    ↑

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

    ↑

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

    ↑

75. The Women’s Legal Service Victoria (WLSV) Rebuilding Strength project connects WLSV clients who have experienced intimate partner violence with pro bono legal representation for their applications to VOCAT. See Women’s Legal Service Victoria, Responding to Legal Need (2018) <www.womenslegal.org.au/impact_report_2016/what-we-do/responding-to-legal-need/>.

    ↑

76. Ibid.

    ↑

77. The Commission was provided with an unpublished copy of preliminary results of the practitioner survey: Women’s Legal Service Victoria, Rebuilding Strength —VOCAT Project: Practitioner Survey Preliminary Results (2017) (unpublished).

    ↑

78. Ibid 1.

    ↑

79. Ibid 1–2.

    ↑

80. Ibid 2.

    ↑

81. Ibid 3.

    ↑

82. Ibid 4–5.

    ↑

83. Ibid 5–6.

    ↑

84. Ibid 7.

    ↑

85. Ibid 8.

    ↑

86. Recommendations 50 and 51 recommended that documentation in VOCAT proceedings should be inadmissible as evidence in criminal proceedings except in certain circumstances, and that such documents must not be subpoenaed. See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247.

    ↑

87. Ibid 238.

    ↑

88. Ibid 228.

    ↑

89. Ibid 244.

    ↑

90. Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence–Report on the Stepping Stones Project (Women’s Legal Service Victoria, 2015) 15, 17.

    ↑

91. The report states, ‘Many women simply do not know that VOCA[T] exists. VOCA[T] did not feature prominently in our research interviews with women’: ibid 56.

    ↑

92. Ibid 55.

    ↑

93. Ibid.

    ↑

94. Ibid 56.

    ↑

95. Ibid.

    ↑

96. Ibid 57.

    ↑

97. Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013) vol 2, 553.

    ↑

98. Ibid 554.

    ↑

99. Ibid 553.

    ↑

100. Ibid 555.

     ↑

101. Ibid 557.

     ↑

102. Ibid 553.

     ↑

103. Ibid 561.

     ↑

104. Justice Legislation Amendment (Victims) Act 2018 (Vic) s 37.

     ↑

105. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime: An Examination of the Counselling Experiences of 62 Applicants to the Victorian Victims of Crime Assistance Tribunal (June 2011).

     ↑

106. Ibid 58.

     ↑

107. Ibid 59.

     ↑

108. Ibid.

     ↑

109. Ibid 60.

     ↑

110. Ibid 59–60.

     ↑

111. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 6.

     ↑

112. Ibid.

     ↑

113. Ibid.

     ↑

114. Ibid.

     ↑

115. Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 44.

     ↑

116. Ibid 110.

     ↑

117. Ibid 117.

     ↑

118. Ibid 118.

     ↑

119. Ibid 119.

     ↑

120. Ibid 122.

     ↑

121. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 9.

     ↑

122. Ibid 17.

     ↑

123. Ibid.

     ↑

124. Ibid 22.

     ↑

125. Ibid.

     ↑

126. Ibid.

     ↑

127. Ibid 23.

     ↑

128. Ibid 24.

     ↑

129. Ibid 26.

     ↑

130. Ibid.

     ↑

131. Ibid 27–28.

     ↑

132. Ibid 29.

     ↑

133. Ibid 33–7.

     ↑

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

     ↑

135. Ibid 18.

     ↑

136. Ibid 19.

     ↑

137. Ibid 21.

     ↑

138. Ibid 23.

     ↑

139. Ibid 42.

     ↑

140. Ibid 49.

     ↑

141. Ibid 42.

     ↑

142. Ibid 20.

     ↑

143. Ibid 22.

     ↑

144. Ibid 19.

     ↑

145. Ibid 23–4.

     ↑

146. Ibid 42–50.

     ↑