Victims of Crime Assistance Act 1996: Report (html)

5. Issues with Victoria’s existing victims of crime financial assistance scheme

Introduction

5.1 This chapter details stakeholder issues with Victoria’s existing scheme of state-funded financial assistance for victims of crime, as provided for under the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) and through the Victims of Crime Assistance Tribunal (VOCAT) (together the ‘existing scheme’).

5.2 Victoria’s existing scheme is unique in that it is the only Australian victims of crime assistance scheme that uses judicial decision makers to determine applications in the first instance,^[1] and one of only a few schemes that enables a victim to elect to attend a hearing.^[2] However, as this chapter discusses, stakeholders’ views vary on the benefits of this approach.

5.3 In addition, and unlike some other Australian jurisdictions,^[3] Victoria’s existing scheme enables victims to be supported through the application process by legal practitioners and to seek reimbursement of these costs at the discretion of VOCAT.^[4] The Commission was told that there are significant benefits in victims being able to access legal advice and support,^[5] and in having some of these costs reimbursed.^[6]

5.4 As this chapter also discusses, there are a significant number of issues with the existing scheme, with the consequence that not all eligible victims may be accessing it.^[7] Even where victims do access the scheme, the Commission was told that the assistance awarded is not always consistent or predictable,^[8] nor is it provided in a timely manner.^[9]

5.5 These issues reflect the matters identified in both the first and supplementary terms of reference and arise in relation to:

• a victim’s eligibility for assistance

• assistance available to victims

• time limits for making an application to VOCAT

• the making of an award under the VOCAA

• review, variation and refund of awards

• timeliness of awards

• VOCAT hearing and evidentiary process

• awareness and accessibility to VOCAT.

5.6 These issues are considered further in the rest of this chapter. The discussion of each issue is preceded by a brief overview of the relevant provisions of the VOCAA.

Eligibility for assistance

5.7 The first terms of reference ask the Commission to consider the eligibility test under the VOCAA and whether the test should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury.

5.8 In addition, the second, third and fourth matters of the supplementary terms of reference ask the Commission to consider the eligibility test and the definition of ‘act of violence’, as well as whether the VOCAA recognises the appropriate people as victims.

Who is eligible?

5.9 A person is eligible for financial assistance under the VOCAA if they are the ‘primary’, ‘secondary’ or ‘related’ victim of an act of violence, and that act of violence directly results in injury, death or, for primary victims, a ‘significant adverse effect’. ^[10]

5.10 Different categories of victim are eligible for different kinds of assistance.^[11] An applicant can only apply to VOCAT for assistance in one capacity, even if the applicant may be eligible under multiple victim categories.^[12]

5.11 In addition, and for all victim categories, the VOCAA requires there to have been an act of violence. This is defined as a ‘criminal act’ or ‘a series of related criminal acts’ that occurred in Victoria and ‘directly resulted in injury or death to one or more persons’. ^[13]

5.12 The VOCAA defines a criminal act as an act or omission that is a ‘relevant offence’.^[14] Relevant offences include assault, injury, threats, sexual offences, stalking, child stealing, kidnapping, conspiracy and attempts of these offences.^[15]

5.13 In a number of cases, the Victorian Civil and Administrative Tribunal (VCAT), which has the power to review decisions of VOCAT, has held that an act of violence must involve an offence against the person and does not include property offences.^[16] This means that a person whose house is the subject of the offence of arson, for example, is not eligible for assistance under the VOCAA.^[17]

5.14 The VOCAA also requires the act of violence to directly result in injury—that is, actual physical bodily harm, mental illness or disorder (or exacerbation of these), or pregnancy.^[18] ‘Injury’ does not include injury arising from property loss or damage.^[19]

5.15 Primary victims may also claim ‘special financial assistance’ if they have suffered a significant adverse effect, defined as ‘any grief, distress, trauma or injury’ as a direct result of the act of violence.^[20]

5.16 The standard of proof for establishing both that an act of violence occurred and that it directly resulted in an injury is on ‘the balance of probabilities’.^[21]

Issues identified in the consultation papers

5.17 As noted in the first consultation paper, the definitions of act of violence and injury, the causation requirement, and the victim categories create barriers to accessing assistance for victims of family violence.^[22]

5.18 The act of violence requirement means that victims of family violence are only able to access financial assistance if they have experienced physical or sexual violence, a threat of injury or stalking.^[23] Victims of non-criminal forms of family violence, such as economic, emotional and psychological abuse, intimidation, harassment, and certain context-specific harms that occur in a particular culture or tradition are excluded.^[24] Victims of forms of family violence which are criminal in nature but not offences against the person are also excluded.^[25]

5.19 The definition of act of violence contained in the VOCAA is also narrower than the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic), which includes threatening or coercive behaviour, behaviour that in any other way controls or dominates another family member and causes them to fear for their safety or wellbeing or that of another person, and behaviour that causes a child to hear or witness, or otherwise be exposed to family violence.^[26] As noted by the Royal Commission into Family Violence, the discrepancies between the definition in the VOCAA and the definition in the Family Violence Protection Act ‘produce anomalous results in terms of eligibility’.^[27]

5.20 Another potential barrier for victims of family violence is the definition of injury. If a victim of family violence has not suffered physical injury or does not suffer from a ‘mental illness or disorder’, they may be ineligible for assistance.^[28] There are cases where victims of family violence who have experienced significant mental harm, have had their applications refused because they do not suffer from a diagnosed mental illness or disorder.^[29]

5.21 In addition, the exclusion of injury arising from property loss or damage in the VOCAA is a particular concern for victims of family violence.^[30] This is because in some situations of family violence, the only tangible harm which the victim is able to demonstrate is property damage.^[31] Moreover, the economic harm that can flow from property damage or destruction can affect the independence and security of victims of family violence, as well as contribute to their long-term financial disadvantage.^[32]

5.22 Victims of family violence may also encounter difficulties in establishing that their injury was a ‘direct result’ of the act of violence, particularly if there may be other contributing factors.^[33]

5.23 The distinction between primary, secondary and related victims can also be problematic for child victims of family violence. As recognised by the Royal Commission into Family Violence children who experience family violence can often suffer severe psychological and developmental trauma and consequences.^[34] This applies both to child victims who are the direct subject of the violence and those who hear, witness or are otherwise exposed to it.^[35] However, under the VOCAA, this second group of child victims are not recognised as primary victims. Such child victims are only able to apply for financial assistance as secondary or related victims.^[36] This not only has the potential to fail to acknowledge and recognise their experience of family violence but it also affects the categories and quantum of awards that they can receive.^[37]

5.24 As noted in the supplementary consultation paper, the eligibility criteria, including the victim categories, the definitions of act of violence and injury, and the causation requirement can create barriers for other victims of crime too.^[38]

5.25 The distinction between primary, secondary and related victims may not reflect victims’ experiences of violent crime or take account of their needs.^[39] In addition, these distinctions can operate to exclude people, such as:

• people who assist in the aftermath of an act of violence, unless the assistance is proactive and substantial and occurs at the time of the act of violence, or immediately thereafter^[40]

• family members of a primary victim (other than the parents of a primary victim under the age of 18) who are injured by becoming aware of a non-lethal act of violence^[41]

• family members of a deceased primary victim who are not ‘close family members’ under the related victim category.^[42]

5.26 In addition, because of the definition of ‘spouse’,^[43] a related victim who is in a relationship involving cohabitation and/or personal or financial commitment and support of a domestic nature,^[44] or who is in a registered relationship under the Relationships Act 2008 (Vic) must prove they have an ‘intimate personal relationship’ with the primary victim.^[45] This creates an additional hurdle for the domestic partner of a primary victim, which is out-of-step with contemporary values and the way that such relationships are legally construed elsewhere.^[46]

5.27 The existing definition of ‘close family member’, which is limited to a spouse, parent, guardian, step-parent, child (including by guardianship), step-child, sibling or step-sibling,^[47] may also create a barrier to assistance for Aboriginal and Torres Strait Islander applicants. They may place equal importance on relationships with others, including those within the wider kinship group who might not be a ‘sister’ or ‘brother’ in a biological or legal sense, but who are considered as such by the community.^[48]

5.28 As noted above in the context of family violence, the narrow definition of an act of violence does not recognise the harm resulting from some forms of non-criminal abuse and/or non-physical criminal offences, including:

• financial abuse and psychological abuse

• causing a child to hear, witness or be exposed to forms of violence

• non-contact sexual offences

• property offences.

5.29 Similarly, the narrow definition of injury can also be a barrier to assistance for other victims of crime, not only victims of family violence. In particular, the requirement in the VOCAA to establish a mental illness or disorder, such as a recognised psychiatric or psychological disorder,^[49] means that other psychological, behavioural, interpersonal and social harms may not be recognised.^[50] Further, the requirement for psychiatric assessments to establish such injuries can be a deterrent for some victims.^[51] Such assessments are not therapeutic and may cause further distress to a victim.^[52] The need to provide medical and psychological reports can also lead to victims being directed away from frontline and community-based services.^[53] This can be a particular concern for victims living in rural or remote areas, where there may be few practising psychiatrists or psychologists, and access may be limited.^[54]

5.30 There are also significant costs associated with proving injury. Obtaining reports from medical professionals and psychiatrists can be costly for victims and for VOCAT, which reimburses successful applicants. These costs may be considered to be ‘wasting resources’,^[55] given the extensive literature that documents the kinds of harm that victims commonly experience, especially in relation to certain crimes, such as sexual assault.^[56]

5.31 As already noted, property loss or damage is expressly excluded from the definition of injury and does not constitute a significant adverse effect for the purposes of the VOCAA. This is a particular issue for victims of family violence. However, other victims will also be ineligible for assistance if the only injury or significant adverse effect they suffer is property-related.

Responses

5.32 The above concerns regarding the eligibility criteria were also reflected in the written submissions received.

5.33 The Magistrates’ Court of Victoria and the VOCAT acknowledged that the eligibility criteria can be a barrier to victims and stated that the victim categories and the definitions of an act of violence and injury are ‘narrow, outdated and fail to take into account distinct victim experiences’.^[57]

5.34 Many submissions also acknowledged the difficulties that the definition of an act of violence creates for victims of family violence. In particular, the Victim Survivors’ Advisory Council submitted, the existing definition ‘is narrow [and] excludes recourse for many [family violence] survivors’.^[58]

5.35 Similarly, the Director of Public Prosecutions submitted, ‘a criminal offence committed in the context of family violence is not confined to physical or sexual (violent) offences against the person’.^[59] The Director noted that ‘family violence offences may also include offences not against the person such as fraud and blackmail, criminal damage to property and intimidation and reprisals relating to witnesses’.^[60]

5.36 In addition, Eastern Metropolitan Regional Family Violence Partnership submitted that ‘not all forms of family violence are currently legislated as acts of crime and this is problematic’.^[61]

5.37 Stakeholders also raised concerns regarding the definition of an act of violence for other victims of crime, particularly victims of stalking and burglary who may not come in direct contact with an offender.^[62]

5.38 In relation to the definition of injury, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, submitted:

Establishing ‘injury’ under the current definition can lead to complexities and delays in some applications, and may result in ineligibility for some victims, despite having suffered harm or distress as a result of an act of violence.^[63]

5.39 Cohealth submitted that the requirement to prove injury can be ‘cumbersome and re-traumatising’.^[64] Similarly, Inner Melbourne Community Legal submitted:

The difficulties involved can be so great, that they prevent victims from accessing financial assistance under the scheme at all because they do not have the capacity to undertake all the assessments and attend appointments required for their claim.^[65]

5.40 It was also submitted that the requirement to prove injury has the potential to create further psychological effects by effectively requiring victims to present as unwell, which ‘could undermine engagement in treatment, in so far as maintaining a positive attitude may be favourable to treatment, but not in one’s financial interests’.^[66]

5.41 In relation to the causation requirement, Springvale Monash Legal Service submitted that victims of family violence can encounter difficulties in establishing that their injury was a ‘direct result’ of the act of violence, particularly if they are suffering from a mental disorder or illness and there are other contributing factors.^[67] Similarly, knowmore submitted that it can be difficult for victims of institutional child sexual abuse to establish that the injury suffered was a ‘direct result’ of the abuse, as often such victims may experience multiple episodes of violence or other traumatic events across their lives.^[68]

5.42 In relation to the victim categories, Inner Melbourne Community Legal submitted that the current victim categories are too narrow and do not adequately reflect the experiences of victims and other people impacted by crime.^[69] In this context, Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the victim categories can result in the children of adult family violence survivors having their claims rejected.^[70]

5.43 Merri Health Victims Assistance Program also submitted that the terms ‘primary victim’, ‘secondary victim’ and ‘related victim’ can ‘imply a hierarchical correlation as to how victims are impacted by a crime’, causing some victims distress about the level of impact they have experienced if they are not identified as a primary victim.^[71]

Assistance available to victims

5.44 The first terms of reference ask the Commission to consider, within the total financial assistance available, the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims.

5.45 In addition, matters four, five and six of the supplementary terms of reference ask the Commission to consider whether:

• the categories of assistance and structure of awards in the VOCAA are appropriate and adequate to account for harm

• the formula used to quantify special financial assistance in the VOCAA is appropriate

• whether it is appropriate and fair to award assistance to aid recovery in exceptional circumstances, and

• whether there are other ways to promote the recovery of victims from the effects of crime.

What assistance is available?

5.46 The categories and quantum of awards available to victims of crime under the VOCAA depend on the victim category under which an applicant applies for assistance.

5.47 The maximum award for primary victims is $60,000,^[72] plus $10,000 of special financial assistance.^[73] The maximum award for any secondary victim and any one related victim is $50,000.^[74]

5.48 The VOCAA limits the maximum amount of financial assistance payable to a pool of related victims to $100,000.^[75] The related victims’ pool can also be reduced by an award for funeral expenses, even if made to someone other than a related victim.^[76]

Issues identified in the consultation papers

5.49 As noted in the first consultation paper, the main issues facing victims of family violence, including child victims, are the ‘related criminal acts’ provision,^[77] and the categories of special financial assistance.^[78]

5.50 In particular, the related criminal acts provision operates to disproportionately reduce the awards received by victims of family violence, including child victims,^[79] as ‘domestic violence, almost by definition, will involve repeated acts of abuse by the same offender’.^[80]

5.51 As recognised by the Royal Commission into Family Violence, the categories of special financial assistance do ‘not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.^[81] This is because the relevant categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.^[82]

5.52 As noted in the supplementary consultation paper, and similarly to victims of family violence, other crime victims also face issues with respect to the financial assistance available, in particular:

• the quantum (amount) of awards, including the total financial assistance available to an applicant

• the categories of awards

• the reduction of awards for related criminal acts.^[83]

5.53 In terms of quantum, the maximum award available for primary victims is broadly consistent with the maximum award available for primary victims in other Australian jurisdictions, which ranges from $30,000 in Tasmania^[84] to $100,000 in South Australia.^[85] It is also similar to that in Queensland and Western Australia, which both cap the award for primary victims at $75,000.^[86]

5.54 For those victims suffering permanent and serious disability as a result of an act of violence, the maximum amount of financial assistance may be inadequate, particularly where a victim is unable to return to work because of their injuries.^[87]

5.55 Despite the maximum amounts available, the average award granted by VOCAT is much lower. In the 2016–17 financial year, the average award amount was $7983, around one-tenth of the total maximum award available.^[88]

5.56 In addition, the related victims’ pool can adversely impact related victims, both in terms of delays, as VOCAT will wait until all related victims have lodged their applications for assistance before considering any related victim application,^[89] and by operating to reduce the quantum of their awards where there are multiple related victims or an award for funeral expenses is also made.

5.57 As noted in the supplementary consultation paper, while the categories of award may appear to meet victims’ needs, for example, through generous interpretations of ‘medical expenses’ and ‘counselling’,^[90] the exclusion of assistance for expenses incurred through loss or damage to property, as well as childcare expenses, can result in some awards being inadequate for victims’ needs.^[91]

5.58 In particular, the exclusion of property-related expenses can affect victims of family violence, who may require property-related assistance in order to achieve the independence and security necessary to their recovery, both in the short and longer term.^[92]

5.59 The lack of any explicit award for childcare expenses may affect the ability of victims who do not have access to affordable childcare to make practical arrangements for their safety.^[93] It may also affect their ability to attend medical and counselling appointments to assist in their recovery.^[94]

5.60 In addition, victims of crimes for which there may be no ‘normal’ timeframe or pathway for recovery, such as victims of child sexual abuse, may be particularly impacted by the requirement that expenses be ‘reasonable’. In this context, expenses, such as for counselling, have been deemed unreasonable because of a lack of demonstrable improvement in an applicant’s health.^[95]

5.61 VOCAT has wide discretion to grant additional financial assistance towards the victim’s recovery in exceptional circumstances.^[96] The Commission heard that such awards can be beneficial, allowing victims to access to financial assistance tailored to their specific needs and to claim expenses they would otherwise be unable to access.^[97]

5.62 VOCAT’s broad discretion can result in inconsistency in awards.^[98] VCAT’s interpretation of ‘exceptional circumstances’ as ‘out of the ordinary’ means that only victims who suffer an unusual or uncommon reaction may be eligible for an award for recovery expenses.^[99] This can result in awards for recovery expenses not always being awarded to those who need them the most.^[100]

Responses

5.63 The concerns identified in the consultation papers were reflected in the written submissions received. This is particularly so in relation to the reduction of awards where there are related criminal acts, the requirement for expenses to be reasonable, the discretion afforded to VOCAT in making awards to assist in a victim’s recovery in exceptional circumstances, and the quantum of awards available.

5.64 Although the Commission was told that ‘generally, the current categories of assistance are still appropriate for primary victims’,^[101] the Commission was also told that the structure of the current categories makes the application process ‘inaccessible to most victims without the assistance of legal support with their application’.^[102]

5.65 The Commission was also told that the ‘related criminal acts’ provisions operate to disproportionately reduce awards of financial assistance made to victims who suffer cumulative harm caused by a pattern of abuse, such as victims of family violence.^[103] As Springvale Monash Legal Service told the Commission, ‘this effectively blames and punishes victims for remaining in abusive situations’.^[104]

5.66 Similarly, the Aboriginal Family Violence Prevention & Legal Service Victoria noted that the effect of the related criminal acts provision was to:

create an inherent bias within the Act towards once-off, or stranger-based incidents and fail to appropriately recognise the cumulative and serious harm caused by family violence.^[105]

5.67 This issue was also acknowledged by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria in their joint submission.^[106]

5.68 In addition, the written submissions raised concerns about the requirement that expenses be reasonable. While submissions noted that it was appropriate for the VOCAA to require expenses to be reasonable, and to reflect the nature of the crime,^[107] it was also submitted that ‘clients experience diverse reactions to crimes, and it is important to ensure assessments of what is “reasonable” take into account an individual’s situation’.^[108] As Merri Health Victims Assistance Program submitted, ‘it is difficult to expect that costs for certain expenses be reasonable as this has an inherent expectation that the experiences of victims are comparable/similar’.^[109]

5.69 It was also submitted that the requirement for there to be ‘exceptional circumstances’ is often interpreted by VOCAT without consistency and in a manner at odds with victims’ experience of crime.^[110] As Schembri & Co Lawyers submitted, ‘Most victims of crime believe that the act of violence in itself constitutes exceptional circumstances as it is not in the ordinary normal course of mainstream life to be a victim of crime’.^[111]

5.70 Similarly, the Victorian Aboriginal Legal Service submitted:

By definition, all violence is, or at least should be, exceptional. No-one should be expecting to be the victim of a violent act in any part of their life. That they have suffered such an act is the exception. The inclusion of an additional ‘exceptional circumstances’ category punishes those for whom this kind of violence is potentially more common, therefore victimising those already victimised. This is clearly the case for people who have suffered from domestic and family violence.^[112]

5.71 The problematic nature of the current ‘exceptional circumstances’ awards was also acknowledged by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria:

The Act does not define or provide examples of what may constitute exceptional circumstances, leaving applicants to try and make their case by leading detailed evidence of psychological injury. Contrary to the purpose of this provision to assist the victim in their recovery, this process may actually serve to pathologise their experience. If an ‘exceptional circumstances’ award is then denied by the Tribunal, the victim’s experience is devalued.^[113]

5.72 In addition, some stakeholders expressed concern about the adequacy of the quantum of awards available. In particular, the Commission was told that ‘the maximum amount of special financial assistance awards had not increased for a long time and that in some cases was grossly inadequate’.^[114]

5.73 Similarly, cohealth submitted:

the amounts of assistance available to those who are severely and profoundly injured during the act of violence are inadequate. While VOCAT is not intended to fully compensate victims for the effects of the crime, a limit of $70,000 where victims have significant and life changing injuries does little to assist these victims.^[115]

5.74 For other stakeholders, the issue of award quantum was not that the total maximum amount available is too low, ‘but rather that the average quantum of awards made is comparatively low’.^[116] As Inner Melbourne Community Legal submitted, ‘There needs to be better direction as to how the total quantum of award should be calculated, so there is greater consistency and reliability for applicants’.^[117]

Time limits for making an application to VOCAT

5.75 The time limit for making an application for assistance was identified by the Royal Commission into Family Violence as a potential barrier for victims of family violence.^[118] Accordingly, this issue was expressly addressed as part of the Commission’s consideration of the first terms of reference.^[119]

5.76 In addition, the first and fourth matters in the supplementary terms of reference expressly require the Commission to consider:

• whether the VOCAA can be simplified to make it easier for applicants to understand their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• whether the time limits are appropriate and adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime.

Time limits under section 29 of the VOCAA

5.77 Under the VOCAA, an application for financial assistance must be made within two years of the act of violence occurring,^[120] except where the application is in relation to an act of violence consisting of physical or sexual abuse which occurred when the applicant was under the age of 18 years, in which case there is no time limit for the making of an application.^[121]

5.78 With the exception of the circumstances noted above, VOCAT must strike out applications made outside this time limit unless ‘it considers that, in the particular circumstances, the application ought not to be struck out’.^[122] In making this decision, VOCAT is required to have regard to a number of prescribed factors, including:

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

• whether the applicant is intellectually disabled or mentally ill

• whether the perpetrator of the act of violence was in a position of power, influence or trust in relation to the applicant.^[123]

Issues identified in the consultation papers

5.79 As noted in the first consultation paper, the two-year application time limit can be a significant barrier for family violence victims,^[124] because it can take victims of family violence a long time to disclose their experiences of family violence.^[125] The reasons for this are varied and complex.^[126] Accordingly, the fact that it may take a victim of family violence longer to lodge an application for assistance means that the time limit of two years can disproportionately impact such victims’ eligibility.^[127]

5.80 As noted in the supplementary consultation paper, the application time limit can also create barriers for other classes of victim who may take more than two years to identify, disclose and/or report violence and abuse, such victims of child sexual assault, victims of abuse or neglect in care, victims with disability and adult victims of sexual assault.^[128]

5.81 Regardless of crime type, the time limit for making an application can be a barrier for vulnerable groups or groups that experience discrimination and disadvantage, such as people with disability, members of the LGBTIQ community, Aboriginal and Torres Strait Islander peoples, children and victims from non-English-speaking backgrounds.^[129] As noted by VCAT, this is because of the construction of the provision,^[130] and because of a lack of publicly available information about VOCAT’s practices for granting time extensions.

5.82 In addition, while VOCAT is allowed to consider certain factors that may account for delayed applications, such as whether the perpetrator was in a position of power, trust or influence over the applicant, or whether the applicant was a child at the time of the occurrence of the act of violence,^[131] these factors appear to be interpreted narrowly by the courts.^[132]

Responses

5.83 Reflecting the matters discussed in the consultation papers, the written submissions also raised concerns about the application time limit. For example, Merri Health Victims Assistance Program submitted that ‘extensions of time are frequently granted by VOCAT but despite this many victims choose not to submit an application due to the mere existence of a time limit’.^[133]

5.84 The Commission was told that the two year application time limit ‘does not properly take into account the evidence in respect of delayed reporting in sexual crimes’.^[134] The Law Institute of Victoria submitted that ‘the current two-year time limit for making a VOCAT application poses a significant barrier for victims of family violence [because] the inherently complex nature of family violence can make it difficult for victims to disclose their experiences within two years of the act of violence occurring’.^[135]

The making of an award under the VOCAA

5.85 The first terms of reference require the Commission to review the matters giving rise to refusal of an application for financial assistance except in special circumstances.

5.86 In addition, the first and fourth matters in the supplementary terms of reference require the Commission to consider:

• whether the VOCAA can be simplified to make it easier for applicants to understand all their potential entitlements, and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• whether the structure and timing of awards are appropriate and are adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime.

When can an award be made?

5.87 An award of financial assistance may be made to a victim of crime where VOCAT is satisfied that:

• an act of violence has occurred

• the applicant is a victim of that act of violence

• the applicant is eligible to receive the assistance.^[136]

5.88 The VOCAA does not require someone to have been charged with or convicted of an offence for an award to be made.^[137]

5.89 However, there are two circumstances where VOCAT must refuse to make an award of assistance:

• if it is satisfied the application has been made in collusion with the perpetrator of the act of violence^[138]

• if an earlier application for assistance has been made by the applicant from the same act of violence.^[139]

5.90 Section 52 of the VOCAA provides two further circumstances where VOCAT must refuse to make an award of assistance, unless there are ‘special circumstances’. These are if VOCAT is satisfied that:

• an act of violence was not reported to police within a reasonable time,^[140] or

• the applicant failed to provide reasonable assistance to any person or body engaged in the investigation, arrest or prosecution of the perpetrator (the investigatory or prosecutorial body).^[141]

5.91 In determining whether an act of violence was reported to police within a ‘reasonable time’, the VOCAA provides that VOCAT may ‘have regard to any matters that it considers relevant’, including:

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

• whether the victim has an intellectual disability or mental illness

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

• whether the victim was threatened or intimidated by the perpetrator

• the nature of the victim’s injury.^[142]

5.92 The case law indicates differing interpretations of what is considered a reasonable time for reporting.^[143]

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

• the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence^[144]

• whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation^[145]

• any condition or disposition of the applicant which directly or indirectly contributed to their injury or death^[146]

• whether the person by whom the act of violence was committed will benefit directly or indirectly from the award^[147]

• any other circumstances that VOCAT considers relevant.^[148]

Issues identified in the consultation papers

5.94 As noted in the first consultation paper, the main issues for victims of family violence concern the requirements to report to police and to assist police and prosecution under the ‘contributory conduct’ and ‘provocation’ clauses in section 52, and the perpetrator benefit provisions under section 54.^[149]

5.95 Broadly, these provisions require VOCAT to consider the ways a victim behaves before, during and after a crime. These provisions therefore require VOCAT to make judgments about a victim’s character.

5.96 The provisions relating to reporting an act of violence to police within a reasonable time and providing reasonable assistance to an investigatory or prosecutorial body, disadvantage victims of family violence who are less likely to report to police or to cooperate with authorities because of fear, shame or economic dependency.^[150]

5.97 The first consultation paper suggested that the lack of guidance in the VOCAA addressing the unique characteristics of family violence, or directing VOCAT to have regard to these characteristics and dynamics, meant that sections 52, 53 and 54 of the VOCAA are inconsistently interpreted and applied, and that as a consequence, the VOCAA fails to recognise the nature and dynamics of family violence.^[151]

5.98 In addition, the first consultation paper suggested that the VOCAA may fail to account for police and broader community attitudes to family violence and the way in which these attitudes might affect reporting rates.^[152] As the Royal Commission into Family Violence found, women often commit crimes as a result of experiencing family violence or under duress or coercion from a violent partner.^[153] Data also suggests that women in prison in Victoria experience family violence at much higher rates than women in the rest of the community.^[154] Given these findings, the first consultation paper suggested that consideration of a victim’s character and behaviour under section 54 of the VOCAA could

have a disproportionately adverse impact on victims of family violence, as compared to other victims of crime.^[155]

5.99 In addition, the contributory conduct, provocation and perpetrator benefit provisions can be criticised for the potential for ‘victim blaming’, particularly in the context of family violence where defensive actions by victims can be misconstrued as provocation or ‘contributing to injury’.^[156]

5.100 In relation to perpetrator benefit, the VOCAA provides no guidance about what might be considered as resulting in a benefit to the perpetrator.^[157] The first consultation paper referred to the Australian Law Reform Commission’s submission to the Commission’s reference in relation to victims of crime in the criminal trial process, where it was submitted that victims’ compensation claims should not be excluded on the basis that the offender might benefit, as such provisions unfairly disadvantage victims of family violence.^[158] In addition, in the Australian Law Reform Commission and New South Wales Law Reform Commission report Family Violence—A National Legal Response: Final Report, the Commissions stated that such an exclusion ‘has the effect of excluding most victims of family violence—especially where the victim continues to reside with the offender—and fails to take into account the fact the compensation award may be used to leave the offender’.^[159]

5.101 Echoing the issues raised in the first consultation paper, the main issues raised in the supplementary consultation paper in relation to the making of a VOCAT award also related to the application and operation of sections 52 and 54 of the VOCAA.^[160]

5.102 In relation to the police reporting requirements under section 52 of the VOCAA, victims of crimes such as sexual assault or historical child sexual assault may also be less likely to make a report to police because of fear, shame or economic disadvantage.^[161]

5.103 In addition, and as illustrated by the experience in the VOCAT Koori List, some victims may prefer to deal with issues themselves rather than involve police.^[162] Similarly, concerns about homophobia and heterosexism may contribute to a reluctance in the LGBTIQ community to report victimisation to police.^[163]

5.104 For victims with disability, there may also be barriers relating to living environments, physical and financial independence and barriers to reports of violence being believed.^[164]

5.105 In addition, although victims may ultimately make a report to police, the report may be significantly delayed. In particular it may take childhood sexual abuse victims several decades to disclose the abuse.^[165]

5.106 As discussed in both consultation papers, in circumstances where perpetrators of violence exercise power and control over a victim, it is common for victims to report a matter to police, then fail to assist with prosecution by withdrawing the complaint or refusing to give evidence in court.^[166] This is particularly the case where the perpetrator and victim are known to each other, for example, in circumstances of family violence and cases of sexual assault. Victims may fear the perpetrator or they may have reconciled after a violent incident. The victim may also be financially reliant on the perpetrator. As already noted, the VOCAA does not provide guidance about whether these factors can be taken into account by VOCAT, and the case law offers differing interpretations of what may constitute reasonable assistance.

5.107 In relation to section 54 of the VOCAA, and the requirement for decision makers to consider a victim’s character and behaviour ‘before, during or after the commission of the act of violence’,^[167] the supplementary consultation paper noted that these provisions appeared to be a reflection of community expectations that the victim must be an appropriate and ‘deserving’ recipient of ‘sympathy’.^[168] In this context the supplementary consultation paper also noted that some academics have suggested these types of provisions require victims to demonstrate they are exhibiting behaviours typically associated with ‘responsible citizenship’.^[169] This view is also reflected in the case law. In Hassell v Victims of Crime Assistance Tribunal,^[170] VCAT cites the original decision of VOCAT: ‘the Act is designed to assist victims of crime, not persons who become victims because of their involvement in the drug industry’.^[171]

5.108 As also reflected in the case law, a victim’s criminal history appears to be considered relevant both in the context of whether the past offences were violent,^[172] as well as whether their commission could be justified by issues relating to drug and alcohol addiction.^[173] The effect of this is that victims with past criminal records may find it difficult to secure an award or may have their award of assistance reduced.^[174]

5.109 Further complicating such considerations is the known link between victimisation and offending behaviour.^[175] This disadvantage may be more pronounced for victims, such as victims of child sexual abuse or child victims of family violence, who may be more likely than the general population to go on to commit criminal offences.^[176]

5.110 As academics have also highlighted, binary oppositions entrenched within the legal system, such as ‘innocent’ victims and ‘wicked’ offenders, disadvantage victims who do not fit these strict categories, such as female victims of family violence who ‘fight back’, have a criminal history, or abuse drugs and alcohol.^[177] As David Miers has observed, the differentiation between ‘deserving’ and ‘undeserving’ victims is problematic because the reality of criminal victimisation is that many victims have also been offenders.^[178]

5.111 Accordingly, the operation of section 54 raises concerns that the VOCAA unfairly judges victims’ past criminal behaviour, which may itself result from disadvantage and trauma associated with previous victimisation.^[179]

Responses

5.112 Reflecting the matters raised in the consultation papers, the written submissions focused on the mandatory refusal requirements where there had been a failure to report or to cooperate with police and investigatory bodies, as well as the section 54 character and behaviour considerations.

5.113 In particular, the Commission was told that the reporting requirement can be particularly difficult for victims of sexual assault and family violence. As Merri Health Victims Assistance Program submitted, ‘many sexual assault victims are reluctant to report to the police and at times when they have tried to report, police have refused to take their statement.’^[180] Similarly, Victoria Legal Aid submitted ‘some victims of family violence and historical abuse are discouraged from making claims under the VOCA Act where acts of violence were not immediately reported to police, and where the victim and perpetrator are known to each other’.^[181]

5.114 In addition, Springvale Monash Legal Service submitted that for victims of sexual assault and family violence ‘avoiding police can be part of a safety plan to not arouse further abuse from the perpetrator’. ^[182]

5.115 Springvale Monash Legal Service also submitted that the reporting requirement can cause difficulties for other cohorts of victims:

Past negative experiences and mistrust of police and other authorities also factors into cooperation with the police for example, victims from Aboriginal and Torres Strait Islander communities, LGBTQI communities, and persons from immigrant and refugee backgrounds.^[183]

5.116 In this context, cohealth submitted that ‘there is an onus on victims to be a “perfect” or “ideal” victim, and police interpretation of reasonable assistance can be influenced by their perceptions of victims’.^[184] The police reporting and cooperation requirements operate to ‘preven[t] victims from seeking VOCAT assistance, with possible financial and emotional impacts on their recovery from the act of violence’. ^[185]

5.117 In relation to the character and behaviour considerations, Dr Kate Seear et al submitted: ‘While in general there are sound public policy grounds for permitting Tribunal members to retain a broad discretion in regards to eligibility, our research suggests the character test in section 54(a) is overly broad.’^[186] In particular:

in its present form, it is possible, for instance, that a victim of a very serious crime (such as attempted murder, rape or other form of family violence) might be denied victims of crime compensation, including vital financial, social and medical supports, by virtue of having a history of illicit drug use.^[187]

5.118 Similarly, Merri Health Victims Assistance Program submitted that ‘irrelevant character and behaviour considerations can sometimes be used by VOCAT to refuse or reduce awards’.^[188] Describing this practice as ‘unfair’, Merri Health Victims Assistance Program

also submitted that ‘VOCAT should not require victims to be the ‘perfect victim’, which has resulted in the system being less supportive of people who are already vulnerable.’^[189]

5.119 The character and behaviour considerations can be particularly problematic for victims of sexual abuse and family violence. Knowmore submitted that for survivor victims of childhood sexual abuse it is:

unfair and inappropriate to impede or reduce awards … in light of subsequent character and behaviour considerations, which all too often are underpinned by the offending perpetrated against the applicant.^[190]

5.120 Dr Kate Seer et al submitted that because of the absence of guidelines relating to section 54, Tribunal members may be:

… invited to entertain spurious and antiquated arguments about the role of applicants (particularly women) in bringing violence upon themselves. This includes but is not limited to family violence matters; it might extend to sexual assault or sexual abuse cases, or to other scenarios where gendered understandings of responsibility, vulnerability, agency and blame might shape decision making.^[191]

5.121 In this regard, Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the provisions in section 54 are ‘inherently victim-blaming and divorced from social realities’.^[192]

5.122 In addition, and as the Victorian Aboriginal Legal Service submitted, the effect of the section 54 requirements is to create ‘a need for expert legal assistance, and reducing the therapeutic outcomes that can be reached by a victim single-handedly taking ownership of their VOCAT application’.^[193]

Review, variation and refund of awards

5.123 The review, variation and refund of awards was not a matter expressly referred to in the first terms of reference. However, award variations were raised with the Commission as a concern for family violence victims, as variations are frequently required to pay for additional counselling.^[194] Award variations, and also the review and refund of awards was expressly considered as part of the Commission’s first consultation paper.^[195]

5.124 The first, fourth and eighth matters in the supplementary terms of reference specifically required the Commission to consider whether:

• the VOCAA can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• the time limits and structure and timing of awards are appropriate

• any processes, procedures or requirements under the VOCA Act cause unnecessary delay to the provision of assistance to victims.

5.125 The supplementary consultation paper discussed the process for review of awards, as well as when VOCAT may vary an award or determine that an award needs to be refunded. The Commission sought to understand the extent to which the provisions in the VOCAA relating to review, variation and refund were clear and working as intended, and were still appropriate.^[196]

Relevant provisions of the VOCAA

5.126 Under the VOCAA, any person whose interests are affected can apply to VCAT for review of a final VOCAT decision.^[197] In practice, review applications are usually made by applicants.^[198] Reviews commonly relate to matters such as VOCAT refusing to make an award, the amount of an award or VOCAT refusing to vary an award.^[199]

5.127 However, the number of applications for review is relatively few, with only 11 applications being made in the 2015–16 financial year,^[200] and eight applications the following financial year.^[201]

5.128 The VOCAA also empowers the Tribunal to vary awards ‘in any manner that the Tribunal thinks fit’.^[202] VOCAT must have regard to any fresh evidence, any change of circumstances, any other payments received by the applicant and any other relevant factors. VOCAT must not vary an award if the application for variation is made more than six years after the original award, unless the applicant was then under 18 years of age.

5.129 In 2015–16, VOCAT varied 986 awards for expenses already incurred and 588 for expenses not yet incurred.^[203] In 2016–17 VOCAT varied 1255 awards for expenses already incurred and 708 awards for expenses not yet incurred.^[204]

5.130 Finally, the VOCAA also enables VOCAT to require applicants to refund some or all of the financial assistance awarded to them if they later receive damages, compensation, assistance or other payments of any kind for injuries suffered as a result of a violent crime.^[205] Any money not refunded as required may be recovered as a debt due to the state.^[206] There is limited data on how often refunds are required, as VOCAT’s annual reports do not state how often refunds are required and whether, in practice, the refund provisions are used.^[207]

Issues identified in the consultation papers

5.131 As noted in the first consultation paper, the key issue of concern for victims of family violence is the variation process and requirements.^[208] The variation provisions enable flexibility and can assist family violence victims with their recovery by allowing for additional awards as situations change or new needs emerge.^[209] The variation process is not always easy for victims of family violence to navigate and can be complicated by the need to repeatedly engage a lawyer to assist with the process.^[210]

5.132 Similarly, and as noted in the supplementary consultation paper, the variation provisions are the main issue for other victims of crime too, as most variations require additional paperwork to be filed by lawyers and other professionals, increasing delays and limiting flexibility and continuity in provision of services such as counselling.^[211] Concerns with the six-year variation window were also noted.^[212]

5.133 Research by the Victims Support Agency in 2011 found that for some victims the process of seeking the variation is frustrating because it often involves numerous visits to lawyers.^[213] One victim stated: ‘You want it to be over and that dragged it on substantially longer … which is why I think a lot of people wouldn’t go through with it.’^[214]

5.134 In the final report of the Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, Betrayal of Trust, the limited ability of VOCAT to provide ongoing financial support to victims of child sexual abuse was contrasted with other compensation schemes which, while not designed to cater indefinitely to ongoing costs, cover costs to assist victims to recover from their injury over a longer period of time. In this context, the report noted one victim as stating that these schemes provided a more appropriate ‘safety net’ for victims.^[215]

Responses

5.135 In response to the consultation papers, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted:

The capacity to seek a variation of an award and the broad discretion and flexibility within the Act is of great benefit to victims/survivors of family violence.^[216]

… However, the process for variation—while flexible—remains unnecessarily legalistic, time-consuming and burdensome for victims/survivors, legal representatives and the Tribunal alike.^[217]

5.136 The Women’s Legal Service Victoria and Domestic Violence Victoria submitted:

Survivors of family violence regularly require variation of awards and, in the current system, may be unable to complete the necessary variation application documents without legal assistance.^[218]

This issue is compounded by solicitors often being unwilling or unable to assist in the absence of adequate funding. As a result, many clients who rely on victims of crime assistance for access to counselling can face delays in access to counselling when an award is exhausted.^[219]

5.137 Merri Health Victims Assistance Program submitted that ‘the need to assist victims of crime should not have an expiry date … Each victim’s recovery is unique and dependent upon their own circumstances.’ ^[220]

5.138 In relation to the refund provisions, Inner Melbourne Community Legal submitted that:

While anecdotally we do not have any cases or client experiences with refunds to be able to speak to this issue, our clients quite often indicate that they are concerned about the possibility of having to refund an interim award if their overall application is not successful.^[221]

5.139 The Aboriginal Family Violence Prevention & Legal Service Victoria submitted that it is ‘rare for victim/survivors of family violence or sexual assault to be required to refund an award’.^[222] However, it was also submitted that:

The capacity to force a refund from a victim/survivor who reconciles with a perpetrator fails to acknowledge the complex dynamics of family violence and the fact that a victim/survivor may reconcile with a perpetrator under duress or threat of further violence, because she was unable to access alternative housing or financial support for herself and/or her children, or for a variety of other complex reasons.^[223]

5.140 In relation to the appeal provisions of the VOCAA, the consultation papers noted that there are relatively few appeals of VOCAT decisions.^[224] Reasons for this were provided in the written submissions.

5.141 Ryan Carlisle Thomas Lawyers submitted: ‘The legal costs involved with pursuing an appeal to VCAT… makes it an unfeasible for option for some applicants.’^[225] Another reason, submitted by cohealth, was that:

by the time victims receive a VOCAT award, they have often started to move on, and/or recover from the crime, especially where the crime has been determined to be at the lower end of the spectrum. The time factor is probably the most significant barrier to seeking a review of the award.^[226]

Timeliness of awards

5.142 The first terms of reference require the Commission to consider procedural matters to expedite the making of an award. Similarly, the first, third and eighth matters in the supplementary terms of reference require the Commission to consider whether:

• the VOCAA can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• the evidence required to meet eligibility tests can be simplified to avoid unnecessary or disproportionate costs being incurred

• any processes, procedures or requirements cause unnecessary delay to the provision of assistance to victims, having regard to other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model.

5.143 Accordingly, in analysing the timeliness of VOCAT awards, consideration must be given to the VOCAT application requirements the decision making process, and the timeframes for decision making under the VOCAA. These are discussed below.

Requirements of the VOCAA impacting on the timeliness of awards

VOCAT application requirements

5.144 The VOCAA requires that VOCAT applications must commence by filling in a form,^[227] accompanied by the requisite documentary evidence.^[228]

5.145 If the applicant has not reported the act of violence to the police, the application form must also be accompanied by a statutory declaration by the applicant setting out the circumstances and the reasons why the matter was not reported.^[229]

5.146 Once the application has been received, VOCAT is to write to the applicant or their lawyer acknowledging receipt of the application and to seek further evidence. This can include requests for:

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

• receipts or invoices for the expenses claimed

• a copy of the applicant’s police statement

• copies of any intervention orders

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

• information about Medicare rebates.^[230]

5.147 Each category of assistance has different supporting documentation requirements. All such documentation must be provided within four months.^[231] 

5.148 If an applicant needs more than four months to collect the requisite documentary evidence, they must make a written request to VOCAT outlining what is still outstanding and how much time they require. VOCAT can then extend the deadline for the filing of all material.^[232] 

The decision making process

5.149 In addition to the documentation and evidentiary requirements, VOCAT has broad investigative powers to:

• authorise a person to make any enquiry or carry out any investigation on behalf of VOCAT that is needed to furnish it with the further information it requires

• order the preparation and submission to VOCAT of a medical report or counselling report

• order an applicant to lodge, within a specified period, an additional statement containing particulars of matters specified in the order or any documents specified in the order.^[233]

5.150 The exercise of these powers can impact the timeliness of a determination.

5.151 After receiving documentation from the applicant and other relevant parties, a directions hearing may be held to provide VOCAT with guidance about matters relevant to the application. It is more common to request an applicant’s lawyer to attend a directions hearing than the applicant.^[234]

5.152 VOCAT can also determine an application without conducting a directions hearing or a final hearing. This depends on the preference of the applicant, as well as VOCAT’s need for a hearing, for example where VOCAT considers that the matters are complex and require the giving of evidence and oral submissions by lawyers.^[235]

5.153 In 2016–17, 14 per cent of VOCAT matters were determined at hearings,^[236] ‘significantly less than the 18.8 [per cent] in the previous year’.^[237]

5.154 In practice, many straightforward applications are decided without a hearing.^[238]

The timeframe for decision making

5.155 VOCAT has a duty to act fairly, according to the substantial merits of the case and as promptly as the requirements of the Act and a proper determination of the matter permit.^[239]

5.156 The VOCAA enables VOCAT to make awards even where there might be related civil or Sentencing Act 1991 (Vic) matters that have not been finalised.^[240] This means that VOCAT can still decide an application, even if there is a pending civil trial, or if a court is going to decide a matter concerning compensation or restitution under the Sentencing Act. VOCAT can also adjourn consideration of an application if there is a criminal trial or a civil trial that is related to that act of violence that is likely to be decided within six months.^[241]

5.157 The effect of these provisions is that, in practice, a VOCAT application is generally adjourned until related matters in the civil and criminal courts have been decided.^[242]

5.158 In addition, and where a hearing is requested or required, it usually occurs within six weeks of a VOCAT member deciding to conduct it or, if requested by the applicant, within six to 10 weeks of the applicant filing all supporting material.^[243]

Interim awards

5.159 The VOCAA empowers VOCAT to make an interim award of assistance pending the final determination of an application.^[244]

5.160 Applicants who need urgent assistance, such as financial assistance for safety-related expenses, can seek an interim award.^[245] This award can often be paid before VOCAT makes a final decision.

5.161 Interim awards form part of the total financial assistance available and must be deducted from any final award.^[246]

Issues identified in the consultation papers

5.162 As noted in the first consultation paper, a number of issues have been raised by victims of family violence in relation to the timeliness of awards. These issues relate to:

• The application form. While the form is relatively straightforward and can often be completed without legal assistance, further requests for documentation by VOCAT can make the process difficult to navigate.^[247] In addition, the fact that the form is tailored towards victims of a ‘one-off’ act of violence can make it difficult for victims of family violence to complete.^[248]

• Timeframes for decision making. Although the VOCAA requires VOCAT to act promptly, it also requires decision makers to have regard to matters that can sometimes affect the time taken to finalise an application, including awaiting the outcome of a criminal investigation, trial or inquest. There has also been an increase in the complexity of applications, particularly relating to family violence, which the Commission understands also impacts timeliness.^[249]

5.163 Approximately half of all applications are finalised within nine months.^[250] As noted in the first consultation paper, the Royal Commission into Family Violence estimated the waiting period for a VOCAT determination for a family violence victim to be roughly between nine and 12 months.^[251]

5.164 The first consultation paper also noted VOCAT’s explanation—that due to the complexity of family violence cases, there are increased delays in the average time taken to complete such applications.^[252]

5.165 Delays in determining VOCAT applications relating to family violence can profoundly impact a victim’s ability to leave an abusive relationship and obtain safety.^[253] Some of these impacts may now be mitigated for victims of family violence as a consequence of the introduction of Family Violence Flexible Support Packages and other initiatives.

5.166 As noted in the supplementary consultation paper, VOCAT frequently requests further information, particularly where the alleged perpetrator has not been charged or convicted, or there is little corroborating evidence.^[254] VOCAT often also seeks information from Victoria Police to help determine whether a crime occurred. This can include requests for the criminal history of the alleged offender and the victim. VOCAT can also seek information about a victim’s injuries through medical records or from Victoria Police.^[255]

5.167 Where there are criminal proceedings pending, it is almost always the practice of VOCAT to order an adjournment.^[256] In fact, applicants are advised when making an application that VOCAT may wait until criminal charges are finalised before determining their matter.^[257]

5.168 The effect of these practices is that, for all victims of crime, the decision is frequently delayed. Victims Support Agency research in 2011 found at least two cases of sexual assault victims waiting for around 12 months for a VOCAT award for further counselling. It is unclear whether these victims had attempted to obtain interim awards or knew they were available.^[258]

5.169 To improve timeliness VOCAT has implemented a number of initiatives.^[259] These include the introduction of an online application form and an electronic case management system.^[260] In addition, the use of judicial registrars is designed to save time by reserving the use of magistrates for more complex matters.

5.170 VOCAT has observed an increase in the complexity and number of applications being made, particularly in relation to family violence.^[261] Increased complexity affects timeliness because more information may be required and VOCAT may decide a hearing is necessary. In consequence the number of pending applications has also increased because of ‘challenges in keeping pace with the increased number of applications’.^[262]

5.171 Lawyers cite obtaining relevant supporting documentation as one of the principal difficulties of running a VOCAT case and one of the primary reasons for delays and cost increases.^[263]

5.172 The supplementary consultation paper noted that the interim award process was not producing timely responses, in particular for victims of family violence. Some stakeholders stated that where family violence circumstances are urgent, they no longer seek assistance through VOCAT, as delays affect client safety and do not assist with time-sensitive matters such as security or relocation.^[264]

5.173 The supplementary consultation paper noted that delays can re-traumatise victims and in some cases, further entrench economic disadvantage.^[265]

Responses

5.174 In response to the consultation papers, stakeholders raised concerns regarding the timeliness of determinations—particularly in relation to the VOCAT application process, the supporting documentation and evidentiary requirements, and the decision making process. In addition, a number of submissions commented on the interim award process, noting that this process was subject to delays.

5.175 In relation to the application form, the Commission was told that ‘the existing forms are too arduous and complicated’.^[266]

5.176 For victims of family violence, the Women’s Legal Service Victoria and Domestic Violence Victoria submitted that the application form itself was ‘an indication of the problematic aspects of the current system’. ^[267] The form requires information that is:

related to a singular act of violence, thereby not accounting for family violence contexts that typically involve multiple incidents and many different types of violence and abuse occurring over lengthy periods of time.^[268]

5.177 Concerns were raised regarding the significant supporting documentation, such as medical or psychological reports, that is often required.

5.178 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted:

The need to assemble documentation is often a source of delays and frequent requests for extensions of time to allow the filing of documents, which adds to VOCAT’s administrative costs.^[269]

5.179 Similarly, Springvale Monash Legal Service submitted that obtaining relevant supporting documentation for VOCAT applications was ‘one of the principal difficulties of running a VOCAT case and one of the primary reasons for delays and cost increases’.^[270]

5.180 It was also submitted that victims experienced substantial delays in their applications being finalised and in receiving awards,^[271] and that these delays resulted in victims finding the process ‘confusing and, in some cases, distressing’.^[272]

5.181 The impact of these delays was acknowledged by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, which noted that ‘delays in the final resolution of an application or a variation can lead to significant distress and a sense for victims that they “can’t move on”’.^[273]

5.182 The importance of timely awards for victims of child sexual abuse was noted by knowmore:

timeliness can be a particularly critical issue for survivors of institutional child sexual abuse, who are often aged, in poor health and suffering from the debilitating impact of complex trauma that can be exacerbated by lengthy delays associated with legal processes.^[274]

5.183 VOCAT delays impact not only victims but also the availability of private practitioners willing to provide medical or counselling reports to support a statement of claim, as it can take several months for them to receive payment. As Inner Melbourne Community Legal submitted:

we can say anecdotally that many practitioners will not undertake any work for clients because of the delays they have experienced previously for payment of their costs.^[275]

5.184 Interim awards enable victims’ urgent needs to be met and may mitigate the adverse impacts of delays in making a final award. As VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted:

the ability to make interim awards of assistance ensures that the therapeutic experience for victims is not derailed by delay, and provides for the immediate financial needs of victims.^[276]

5.185 Other stakeholders submitted that the interim award application process has its own issues. As Darebin Community Legal Centre submitted:

although the current framework provides for an interim award process, this process is often significantly time consuming and does not recognise the urgency that family violence safety and support needs require.^[277]

5.186 Some victims may be hesitant to apply for an interim award as they may be required to reimburse that award. As Inner Melbourne Community Legal submitted:

for our clients, the fear of having to reimburse interim awards that may be paid to them if their overall application is rejected can stop them from applying for much needed assistance.^[278]

VOCAT hearings and evidentiary processes

5.187 The first terms of reference require the Commission to consider the requirement to notify a perpetrator, especially where the matter has not been reported to police, or no charges have been laid, or the prosecution is discontinued or the person is acquitted.

5.188 The first consultation paper also considered the importance of VOCAT—beyond monetary benefits for victims of family violence.^[279] Compensation can be a statement to the community about the unacceptability of family violence and that the process itself can help recognise a victim’s experience.^[280] However, at the time of the introduction of the VOCAA in 1996, there was little community acknowledgment of family violence or its

harms.^[281] Family violence is therefore not explicitly recognised—in contrast with schemes in other Australian states and territories.^[282]

5.189 In addition, the first, seventh and eighth matters raised in the supplementary terms of reference require the Commission to consider:

• whether the VOCAA can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• whether it is appropriate in certain circumstances (as is currently the case) for alleged perpetrators of a crime to be notified of an application to VOCAT or be called to given evidence

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

The VOCAT hearing and evidentiary process

5.190 VOCAT has the power to determine an application without conducting a hearing where:

• the applicant expressly wishes and consents in writing

• VOCAT determines a hearing is not required.^[283]

5.191 In practice, a substantial majority of applications are determined on the papers and without a hearing.^[284]

5.192 Where a hearing is requested by a victim, or required by VOCAT, VOCAT may inform itself in relation to the application in any manner that it thinks fit.^[285]

5.193 The VOCAA provides that VOCAT ‘may give notice of the time and place for the hearing to any other person whom the Tribunal considers to have a legitimate interest’ in the matter.^[286] This can include the alleged perpetrator.^[287] Practice directions require VOCAT to first give the applicant an opportunity to be heard on whether this should occur.^[288]

5.194 In addition, the VOCAA, under the heading ‘Who is entitled to appear at hearing’, provides:

The applicant and any other person or body that, in the Tribunal’s opinion, has a substantial interest in a matter is entitled to appear and be heard by the Tribunal on the hearing of the matter.^[289]

5.195 In AB v Victims of Crime Assistance Tribunal, Justice McDonald stated:

The Tribunal’s power to make an award of assistance to an applicant is preconditioned upon a finding that the applicant is a victim of a criminal act. Notwithstanding this, the exercise of the Tribunal’s powers is not constrained by the accusatorial system of criminal justice which underpins the trial of a criminal charge.^[290] The Act does not enshrine the concept of a fair trial of a person alleged to have committed the criminal act which enlivens the Tribunal’s power to award compensation to a victim. So much is plain from ss 33 and 34 of the Act. Under s 33, the Tribunal has power to make an award of compensation without even conducting a hearing. Under s 34(3) the Tribunal has the power to conduct the hearing without providing notice to the person who is alleged to have committed an act of violence. A necessary corollary of these powers is that the Tribunal can make a finding that a person has committed a criminal act and proceed to make an award of compensation, without that person being given an opportunity to defend him or herself against such an allegation.^[291]

5.196 The Judge proceeded, ‘plainly ss 33 and 34(3) fall into the category of provisions which are wholly inconsistent with a requirement of procedural fairness’;^[292] this is because ‘the Tribunal proceedings bear no comparison with a criminal trial’.^[293]

5.197 Although an alleged perpetrator may appear and be heard by VOCAT where VOCAT so determines, the purpose of a VOCAT hearing is, similarly to an application on the papers, to decide a victim’s application for state-funded financial assistance as assessed against the eligibility criteria.

5.198 The purpose of a VOCAT hearing is therefore not to decide whether an alleged perpetrator has committed a criminal act or to make an adverse finding of fact against an alleged perpetrator. Instead, the purpose of a VOCAT hearing is to decide whether a person is a victim of a crime, and whether that victim should receive an award to assist them in their recovery from the criminal act. The role of an alleged perpetrator in state-funded financial assistance schemes is considered further in Chapter 6.

5.199 On the hearing of a matter, VOCAT is not required to conduct itself in a formal manner.^[294] VOCAT is also not bound by the rules of evidence, and may inform itself in any manner that it thinks fit.^[295] However, VOCAT’s procedures remain a legal process bound by the provisions of the VOCAA.

5.200 The VOCAA requires VOCAT hearings to be open to the public.^[296] However VOCAT is able to direct alternative arrangements to be made for the giving of evidence by a witness,^[297] and can direct the whole or part of the hearing to be closed to members of the public.^[298] VOCAT can also direct that only certain persons, or classes of persons, may be present during the hearing.^[299]

5.201 As noted in the supplementary consultation paper, VOCAT records can be subpoenaed and used by the defence in criminal or other proceedings.^[300]

Issues identified in the consultation papers

5.202 As noted in the first consultation paper, the main issue for victims of family violence is the alleged perpetrator notification, due to the safety risks that commonly arise in applications involving family violence.^[301]

5.203 Although VOCAT indicates that perpetrator notification rarely occurs, case analysis indicated that alleged perpetrators are sometimes notified and do participate in proceedings, even in the highly vulnerable contexts of family violence and sexual assault.^[302]

5.204 In addition, the first consultation paper noted concerns of family violence victims about the consistency of decision making.^[303] The inconsistency of VOCAT decisions, and the variability in the acknowledgment and validation of victims, significantly shape family violence victims’ experiences of the Tribunal. This also affects the extent to which the VOCAT process may be recommended by support agencies working with victims of family violence as a positive experience, as there is a limit to how much a victim can be assured of a ‘validating’ VOCAT experience.

5.205 As noted in the supplementary consultation paper, the main issues for victims of crime more generally relate to:

• perpetrator notification and perpetrators’ right to appear

• evidentiary and procedural protections for victims

• the therapeutic effect of Tribunal hearings

• the use of VOCAT documentation in criminal proceedings

• the transparency and consistency of decision making.^[304]

5.206 These concerns reflect and expand on the concerns raised by family violence victims in the context of the first terms of reference and the first consultation paper.

5.207 One of the beneficial aspects of Victoria’s approach is the use of VOCAT hearings presided over by judicial officers.^[305] Victoria is one of the few Australian jurisdictions that enables victims to elect to attend a hearing and that uses judicial decision makers.^[306]

5.208 Victoria’s existing scheme therefore gives victims a unique opportunity to engage with the justice system and be heard and acknowledged.^[307] For some victims, the hearing of an application by a judicial officer can provide an acknowledgment from the justice system that there has been a crime and that they have suffered harm as a consequence.^[308] Where an offender has not been prosecuted, victims can feel acknowledged and validated by participating in a VOCAT hearing.^[309]

5.209 As VOCAT has noted, the tribunal structure enables ‘victims of crime [to] gain acknowledgment of their experiences by a judicial officer in the criminal justice system, but in the more flexible, informal and intimate manner afforded by an administrative tribunal’.^[310]

5.210 However, some victims may wish not to participate in a VOCAT hearing. As stated by Judith Herman, ‘if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law’.^[311] Research indicates that some victims can be distressed by having to recount details of the crime during VOCAT hearings^[312] or traumatised by VOCAT members’ comments.^[313]

5.211 In this context, the perpetrator notification provisions are particularly problematic, raising questions about victim safety and the therapeutic effect of VOCAT hearings, not only for family violence victims, but for other crime victims, such as victims of sexual assault.

5.212 Victims of crimes associated with low reporting rates, such as sexual assault,^[314] or victims who may fear or distrust police, are therefore more vulnerable to the perpetrator notification requirements. These are often also the victims more vulnerable to intimidation, threats to their safety or re-traumatisation through contact with an alleged perpetrator.^[315]

5.213 Even if perpetrator notification occurs rarely, the fact that it exists at all can be a deterrent for some victims, who may elect not to pursue a VOCAT application because of the chance of the perpetrator being notified.^[316]

5.214 The evidentiary and procedural protections for protected witnesses in criminal proceedings and intervention order matters do not extend to VOCAT hearings. While the VOCAA gives VOCAT the discretion to put in place these types of evidentiary protections, the fact the VOCAA does not require the use of such protections may lead to them to be underused or used inconsistently.^[317]

5.215 As noted in the supplementary consultation paper, the use of VOCAT materials in other proceedings remains a key issue for victims of crime, in particular victims of family violence.^[318] This issue was also raised by the Commission in its report Victims of Crime in the Criminal Trial Process.^[319]

5.216 The supplementary consultation paper noted concerns about transparency in the VOCAT process.^[320] These concerns are not new. In a submission to the then-Victorian Department of Justice’s 2009 review of victim compensation, the Federation of Community Legal Centres stated that there was a need for more transparency and equity in the VOCAT process.^[321] Similarly, research conducted by Whittlesea Community Legal Services found that the lack of written reasons for decisions made it difficult to gather evidence regarding the operation of VOCAT and therefore even more difficult to educate the legal profession about it.^[322]

5.217 While all hearings conducted by VOCAT are digitally recorded, there is no such process for determinations on the papers. Written decisions are not publicly available—the only decisions available to the public relate to review decisions of the Victorian Civil and Administrative Tribunal. These reviews are rare (only 11 reviews were conducted in 2015–16).

5.218 This lack of transparency in the decision making process results in a high degree of uncertainty, as the system relies on the knowledge of support workers or lawyers to advise victims on whether an award made on the papers under section 33 is appropriate, or whether the decision should be reviewed.^[323]

5.219 Applications are determined on the papers in the majority of VOCAT matters—approximately 86 per cent of all applications in 2016–17.^[324] This effectively means that VOCAT is operating predominantly as an administrative system while remaining embedded within a tribunal-based system.

5.220 Given this way of operating in practice, when decisions are made by VOCAT ‘on the papers’, there is neither the transparency afforded by the usual open court process, supplemented by the publication of judicial decisions, nor a clear administrative decision making framework as would be the case if the decision making were embedded in government service delivery.^[325]

5.221 Another area of stakeholder concern is the level of judicial discretion contained within the VOCAA, and in particular that such broad discretion in the VOCAA could be used inappropriately. In this context, stakeholders noted there are inconsistencies in practice, approach and the quantum of awards made by VOCAT members, and considered these inconsistencies tied to the level of discretion granted by the VOCAA.^[326]

Responses

5.222 Reflecting the consultation papers, the written submissions raised concerns regarding the perpetrator notification and right to appear provisions, the lack of evidentiary and procedural protections for vulnerable witnesses, including access to and use of VOCAT records, the effect of the hearing process—and whether it had therapeutic effect—and the consistency of decision making.

5.223 In relation to the perpetrator notification provisions and perpetrators’ right to appear, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted these are a key concern for many victims, although in practice, alleged perpetrators are notified infrequently, and only rarely choose to participate in a hearing.^[327] Similarly, Anglicare Victoria’s Victim Assistance Program submitted: ‘Victims do not understand the notification process … Most victims receive the letter and go into panic.’^[328] The Office of the Victorian Information Commissioner also submitted that the perpetrator notification provisions ‘may deter applicants from making an appearance or pursuing an application for financial assistance’.^[329]

5.224 Victoria Legal Aid submitted that ‘notification is more likely for low reported crimes such as sexual assault and family violence’,^[330] concluding that this was problematic because ‘victims of these crimes are particularly vulnerable to re-traumatisation’.^[331]

5.225 The Victim Survivors’ Advisory Council submitted that for family violence victims:

Notifying the perpetrator heightens the risk of further injury and damage on the victim survivor. The context of separation is recognised as being the most high-risk time for victim survivors, and notification to the perpetrator of a VOCAT hearing unnecessarily compromises the safety and wellbeing of victim survivors.^[332]

5.226 It was also submitted that the perpetrator notification provisions potentially create ‘another avenue through which perpetrators can manipulate systems to harm and control their victims’.^[333]

5.227 Victoria Legal Aid submitted that the perpetrator notification provisions ‘may compromise the therapeutic potential of a VOCAT hearing’.^[334] Inner Melbourne Community Legal submitted:

The notification provisions are completely at odds with the objectives of the Act, given that it is to provide financial assistance to victims to recover from crimes, and is a form of symbolic expression and recognition, of the community’s sympathy and condolences for their experiences.

Perpetrator notification directly impacts on a victim’s willingness to take part in the scheme and acts as a strong deterrent. Our clients have expressed concerns for their safety and have been significantly distressed at the prospect of a perpetrator attending at a hearing which is meant to be focused on their experiences and intended to assist with their recovery.^[335]

5.228 In contrast Ryan Carlisle Thomas Lawyers submitted that:

Our democracy and the legal principles of due process and procedural fairness dictate that those accused have a reasonable opportunity to respond to charges levelled against them.^[336]

5.229 Other stakeholders submitted that the removal of the perpetrator notification provisions would not give rise to procedural fairness issues. As Springvale Monash Legal Service submitted:

[VOCAT’s] determinations affect the right of an applicant to receive financial assistance. Its concern is not to determine the criminal liability of an alleged perpetrator.^[337]

5.230 In relation to evidentiary and procedural protections, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted:

the Act gives VoCAT the discretion to put in place special arrangements, such as hearing evidence via video link or prohibiting in-person cross examination of an applicant.^[338]

5.231 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also acknowledged that ‘the absence of an explicit provision in the Act can lead to this option being underused or used inconsistently’.^[339]

5.232 In addition, stakeholders expressed concern about VOCAT materials being used in other legal proceedings. Schembri & Co Lawyers submitted:

Quite often victims of family violence suffer from Depression and Anxiety caused by the family violence. This is then used against them in Family Law proceedings in relation to their capacity to adequately care for the children of that relationship.

Also, defence lawyers for the offender often use the VOCAT material to discredit the victim and argue that the victim made the complaint to police to obtain financial advantage through VOCAT.^[340]

5.233 The Director of Public Prosecutions also submitted that there were ‘instances where VOCAT materials have been subpoenaed by defence and victims have been cross-examined on their VOCAT application materials’.^[341] It was submitted that on one occasion, this led to the defence securing a re-trial, which resulted in an acquittal due to ‘inconsistencies in the complainant’s evidence at trial and the VOCAT materials’.^[342]

5.234 In relation to the effect of VOCAT hearings, YourLawyer submitted:

[the] hearing of a VOCAT application before a Tribunal Member has the potential to be a profoundly positive experience for a victim because it can provide significant therapeutic benefit.^[343]

5.235 In particular, YourLawyer submitted:

having the ability to make a VOCAT Application, and more particularly the opportunity to be heard at a Hearing, gives the victim legitimacy in addition to providing critical assistance.^[344]

5.236 It was also submitted by the Women’s Legal Service Victoria and Domestic Violence Victoria that many of their clients report that the VOCAT hearing is ‘a healing and validating process for them’.^[345]

5.237 However, this view of VOCAT is not shared by all stakeholders.^[346] As the Eastern Metropolitan Regional Family Violence Partnership submitted: ‘VOCAT is not a therapeutic process for victims of family violence, including for child victims’,^[347] concluding that the process is not intended to be so.^[348] Instead:

additional trauma or even re-victimisation is very possible while going through the VOCAT application process. The current process has no allowance for recognition of extra trauma caused by the process itself. ^[349]

5.238 The Victim Survivors’ Advisory Council also concurred with this view, stating:

The current model is not a therapeutic model. Victim survivors [of family violence] are not engaging with appropriately trained individuals with an understanding of family violence. This raises the issue that victim survivors are not heard, their abuse is not acknowledged and that they as victim survivors are not validated.^[350]

5.239 Similarly, knowmore submitted that the VOCAT process can be re-traumatising for victims of child sexual abuse:

while statutory victims’ schemes are relatively informal compared to many other forms of legal proceedings, they still have the potential to re-traumatise survivors … Not all decision makers have an appropriate understanding of the complexities of institutional child sexual abuse matters and the impacts of such offending on survivors and their capacity to engage effectively with legal processes and with those they perceive as the representatives of authority.^[351]

5.240 These issues regarding the effect of the VOCAT hearings and victims’ need to be heard and acknowledged are discussed further in Chapters 7 and 8.

5.241 In relation to the decision making process, the South Metropolitan Integrated Family Violence Executive submitted that ‘the current system … does not result in predictable and consistent outcomes; and it is often re-traumatising’.^[352] Similarly, Anglicare Victoria’s Victims Assistance Program submitted that the ‘the outcome for the client relies heavily on the magistrate [who] is hearing the matter.’^[353]

5.242 Inconsistency in decision making has also been acknowledged by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, which noted:

There is a risk of inconsistent decision making in relation to awards and interpretation of broad areas of discretion for multiple decision makers with varying levels of VoCAT experience, operating across 51 locations. This can foster unrealistic expectations on the part of victims about likely award outcomes, and the perception that the system is not fair.^[354]

Awareness and accessibility

5.243 Although not a matter referred to in the first terms of reference, family violence victims’ awareness of and access to VOCAT is a key issue.^[355]

5.244 Victims’ awareness and access are specifically identified in the supplementary terms of reference in a number of matters. In particular, the first matter specified in the supplementary terms of reference requires the Commission to consider whether the

VOCAA can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support.

Victims’ access to VOCAT and awareness of the existing scheme

5.245 Victim access to and awareness of VOCAT is not a matter addressed either directly or indirectly in the VOCAA.

5.246 In contrast, other state-funded financial assistance schemes expressly provide that it is a function of the scheme coordinator to develop educational and other programs to promote awareness of the needs of victims, and to distribute information about the operation of the state-funded financial assistance scheme and the coordinator’s functions to victim service providers and the public generally.^[356] In New South Wales, the Victims Rights and Support Act 2013 (NSW) expressly provides that a function of the Commissioner of Victims Rights is to provide information to victims of crime (and members of the immediate family of missing persons) about support services and assistance for victims of crime and such persons, and to assist victims of crime in the exercise of their rights.^[357]

Issues identified in the consultation papers

5.247 As noted in the first consultation paper, there are relatively few VOCAT applications made by victims of family violence, compared to the number of reported incidents of family violence in Victoria.^[358] In this context, the Royal Commission into Family Violence found that victims are often unaware of their eligibility for assistance.^[359] One woman told the Royal Commission that she had only discovered that she could make an application as a victim of family violence after she had applied to VOCAT as a victim of a sexual assault.^[360] Service providers also submitted to the Royal Commission into Family Violence that VOCAT was underused by victims of family violence.^[361]

5.248 Research indicates that many victims of family violence are simply unaware of the existence of VOCAT.^[362]

5.249 Compounding issues of accessibility, the VOCAA has been described as ‘complex and difficult for victims to understand’.^[363] A victim’s experience of VOCAT is said to be enhanced by victim support and the availability of legal representation.^[364]

5.250 Although VOCAT has close links with support agencies,^[365] these support mechanisms are not integrated with VOCAT and so victims have to access multiple services.^[366]

5.251 The VOCAT application form is tailored towards victims of a ‘one-off’ act of violence making it difficult for victims of family violence to complete.

5.252 As noted in the supplementary consultation paper, analysis of Crimes Statistics Agency data suggests approximately nine per cent of all potentially eligible victims of crimes against the person result in applications for financial assistance.^[367]

5.253 Research conducted by the Women’s Legal Service Victoria has found that many victims of family violence are unaware of the existence of VOCAT.^[368] Similarly, research by Whittlesea Community Legal Service in 2011 also identified a lack of awareness among victims regarding financial assistance available through VOCAT.^[369] These conclusions are echoed in the research conducted by the Victims Support Agency, which found a general lack of awareness and understanding of VOCAT and the process, even among victims who had been through it.^[370] Similarly, in an analysis of Australian victim compensation schemes, Betty Chan et al noted that only a small proportion of victims pursue support from a victim compensation scheme. One reason provided was victims’ lack of awareness of the schemes.^[371]

5.254 Lack of awareness is only one reason victims may not be accessing Victoria’s existing scheme. The documentation requested by VOCAT to support an application, and the form itself, can also be overwhelming for victims.

5.255 The VOCAT application form is not ‘victim-friendly’, and is not written in plain language.^[372] The form does not recognise all victim experiences. As already noted the form is tailored towards victims of a one-off act of violence and uses singular language.

5.256 In addition to family violence victims, these features of the form can make it difficult for victims of certain other types of crime to complete the form. Some victims, such as victims of historical child sexual assault or family violence, may be making an application for a series of acts that occurred over a long period of time, with no clear beginning or end, and which may have been reported multiple times to different police officers.

5.257 As noted in the supplementary consultation paper, concerns with the VOCAT application form were also raised in Victims Support Agency research.^[373] A victim of historical childhood sexual assault said the application form was not suitable for sexual assault victims, stating: ‘[The VOCAT form] needs to be very friendly. It was too black and white and it was like everyone fits into the same box, and no one fits into the same box.’^[374]

5.258 The VOCAT application form can be contrasted with the form for victim impact statements produced by the Department of Justice and Regulation. While the victim impact statement form is also a legal form, being a statutory declaration submitted to the court during the sentencing phase of a criminal trial, it has been designed by the Victims Support Agency to provide more guidance, information and space for a victim to convey their story in a more sensitive and victim-friendly way.^[375] Similar ‘victim-friendly’ forms and layouts have also been used by the Office of Public Prosecutions in relation to victim and family member reports under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).^[376]

5.259 The effect of the above is that victims are unlikely to navigate the VOCAT system without a lawyer.^[377]

5.260 However, access to a lawyer has also been described as a barrier because some victims are not able to access a lawyer. In addition, the Commission was told that some lawyers will not take on VOCAT-related work because the legal costs awarded are too low for the amount of work often required.^[378] Research by the Victims Support Agency has found that some victims experienced difficulty securing a solicitor who would take on their VOCAT application, particularly in regional areas, while others who could find a solicitor found them difficult to deal with, uncommunicative, difficult to contact, dismissive, insensitive and only interested in money.^[379]

5.261 Accessibility issues have been linked to the legalistic nature of the VOCAT processes:

The most common problems with the process of obtaining counselling through VOCAT can broadly be associated with the need to comply with the requirements of a legal system … includ[ing] reluctance by some counsellors to engage with the VOCAT process, time-consuming trips to solicitors, difficulty in obtaining documentation and delays in obtaining [VOCAT-funded] counselling once it had been awarded.^[380]

5.262 Some academics have suggested that VOCAT’s accessibility is limited because it is part of the justice system rather than the victim support system. Hayley Catherine Clark notes that victims can be discouraged from accessing the justice system because they perceive it as detrimental to their wellbeing. As a result, Clark considers that there should be ‘a greater separation of compensation schemes from the criminal justice system … [to] provide a more encouraging and accessible service for victim/survivors’.^[381]

Responses

5.263 Reflecting the matters raised in the consultation papers, the written submissions noted concerns regarding victims’ awareness of and access to VOCAT.

5.264 In their joint submission VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted the low rate of VOCAT applications^[382] may be due to:

a general lack of awareness of VoCAT and the financial assistance process in Victoria, or reflect the difficulty for applicants to understand their potential entitlements and quickly and easily access the assistance offered.^[383]

5.265 The Hume Riverina Community Legal Service submitted that there is very little public knowledge about VOCAT or its eligibility requirements, particularly in rural or regional Victoria.^[384] The Women’s Legal Service Victoria and Domestic Violence Victoria submitted that there was limited awareness of victims of crime assistance and that this was a particular issue for those ‘for whom English is a second language, or in newly arrived communities’.^[385]

5.266 Similarly, CASA Forum submitted that lack of awareness of VOCAT is a particular problem ‘for people who have high support needs and may not be able to independently get access to information about this process’.^[386]

5.267 The Eastern Community Legal Centre submitted that family violence victims may often be reluctant to engage in VOCAT applications due to:

feeling ‘unworthy’ of accessing the system and also due to a fear of having to engage in invasive court proceedings. This is especially the case if the victim/survivor has already had experience with any court system.^[387]

5.268 In this context, a victim submitted that ‘the whole [VOCAT] process is wrapped up in the mystique and industry of the Courts and the legal profession’.^[388] This can result in applicants requiring legal assistance in order to navigate the VOCAT process. As Inner Melbourne Community Legal submitted: ‘legal representation is crucial in complex matters, and it can proportionately affect the quantum of any award thereby getting victims better results’.^[389]

5.269 Similarly, Merri Health Victims Assistance Program submitted that ‘the current VOCAT system makes the application of a VOCAT claim inaccessible to most victims without the assistance of legal support with their application’.^[390]

5.270 Ryan Carlisle Thomas Lawyers submitted:

The current VOCAT and State-funded scheme is plainly not easy to navigate without legal representation. One of the major reasons for this is that there are many more criterion to satisfy in VOCAT applications than for WorkCover or TAC claimants.

For example, WorkCover or TAC claimants merely need to prove at the time of making a claim that they have suffered an injury arising out of in the course of their employment or a transport accident, respectively. Provided these boxes are ticked, the claimant is eligible to receive compensation from their WorkCover insurer or the TAC.

However, in the case of VOCAT applications, there is a much longer list of criteria applicants are required to ‘tick’ before they can be considered to be eligible. There are many more criteria to satisfy in VOCAT applications than for WorkCover or TAC claimants. ^[391]

5.271 This reliance on legal assistance was described by stakeholders as ‘a barrier to people accessing assistance’. This is because ‘community legal centres have limited resources, and there is limited access to private lawyers with VOCAT experience, especially in rural and regional areas’.^[392]

19.1

1. South Australia also uses judicial decision makers but not in the first instance. If a claim for statutory compensation has not been settled by agreement between the Crown Solicitor and the claimant within 3 months after the application is made or a longer period agreed between the Crown Solicitor and the claimant, the claimant may apply to the court for an order for statutory compensation: Victims of Crime Act 2001 (SA) s 18(5).

   ↑

2. In Victoria, hearings may also be held if the Tribunal requires: Victims of Crime Assistance Act 1996 (Vic) s 33(1). See also Part 6 ‘Determination of Your Application’ of the Victims of Crime Assistance Tribunal, Application for Assistance Form (2016), which asks the applicant to nominate whether they would prefer to attend a hearing at the Tribunal or have to have their application determined in their absence. Like Victoria, Tasmania also provides for hearings if the applicant elects or the Commissioner requires: Victims of Crime Assistance Act 1976 (Tas) ss 7(4) and 7(5). Western Australia is the only other jurisdiction that provides for hearings, but these are only conducted if the assessor requires: Criminal Injuries Compensation Act 2003 (WA) s 24(1).

   ↑

3. As discussed in Chapter 10 of this report, the NSW state-funded financial assistance scheme established under the Victims Rights and Support Act 2013 (NSW) does not provide for the reimbursement of legal costs.

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4. Victims of Crime Assistance Act 1996 (Vic) s 48.

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5. Submissions 14 (Inner Melbourne Community Legal), 19 (Schembri & Co Lawyers), 21 (Confidential), 22 (YourLawyer), 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers), 42 (Joint Submission Springvale Monash Legal Service et al), 46 (Victoria Legal Aid); Consultations 7 (Family Violence and Advocacy Organisations), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

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6. The issue of legal costs is discussed further in Chapter 10, where it is noted that the removal of the reimbursement of legal costs for applications for state-funded financial assistance under the NSW scheme has been raised by stakeholders as being a barrier, particularly for vulnerable victims.

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7. See Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria), which notes that approximately 9% of all victims of crimes against the person apply to VOCAT for financial assistance.

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8. See Submissions 5 (Anglicare Victoria Victims Assistance Program), 28 (South Metropolitan Integrated Family Violence Executive), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria).

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9. See Submissions 18 (cohealth), 38 (Ryan Carlisle Thomas Lawyers), 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 8 (Victims Representatives—Victims of Crime Consultative Committee), 20 (Academics), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

   ↑

10. See Victims of Crime Assistance Act 1996 (Vic) ss 7, 8A, 9 and 11.

    ↑

11. Ibid ss 8, 10, 13 and 15.

    ↑

12. Ibid s 18.

    ↑

13. Ibid s 3(1).

    ↑

14. Ibid.

    ↑

15. Ibid.

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16. See Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004) [15]; Purcell v Victims of Crime Assistance Tribunal
    
    (3 June 2011) [18]; Matthews v Victims of Crime Assistance Tribunal [2012] VCAT 1099 (27 July 2012) [18]–[19].

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17. See, eg, Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004); Matthews v Victims of Crime Assistance Tribunal [2012] VCAT 1099 (27 July 2012).

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

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19. Ibid.

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20. Ibid.

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21. Ibid s 31.

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22. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 46–7.

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23. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

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24. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 194. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 78.

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25. The difficulty experienced by victims of family violence who are subjected to property offences, for example, is illustrated by Purcell v Victims of Crime Assistance Tribunal [2011] VCAT 1463 (3 June 2011).

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26. Family Violence Protection Act 2008 (Vic) s 5(1). This point was also noted by the Magistrates’ Court of Victoria and the Children’s Court of Victoria in their submission to the Victorian Royal Commission into Family Violence, see 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, 57.

    ↑

27. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 78.

    ↑

28. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

    ↑

29. See, eg, RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009). The applicant’s claim was ultimately accepted on the basis of physical injury. See also the first instance VOCAT decision in AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (set aside by VCAT).

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30. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 49.

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31. For an illustration of a situation of family violence in which the only injury to which the victim could point was property damage, see Purcell v Victims of Crime Assistance Tribunal [2011] VCAT 1463 (3 June 2011). In that case, VCAT rejected the applicant’s claim on the basis that she had only provided evidence of property damage.

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32. For a discussion of the economic consequences of family violence, see generally Australia’s National Research Organisation for Women’s Safety, Building Effective Policies and Services to Promote Women’s Economic Security Following Domestic Violence, State of Knowledge Paper No 7 (ANROWS Landscapes, 2015).

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33. See, eg, NF v Victims of Crime Assistance Tribunal [2012] VCAT 1740 (16 November 2012) in which VOCAT refused the applicant’s claim for counselling costs on the grounds that the incident in question was only one of many causes of the applicant’s difficulties. This decision was set aside by VCAT. See also CS v Victims of Crime Assistance Tribunal [2006] VCAT 1061 (9 June 2006), in which both VOCAT and VCAT rejected the victim’s application in part because there were a number of other very serious unrelated matters that had had a significant effect on the applicant.

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34. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 106. See also Kelly Richards, Children’s Exposure to Domestic Violence in Australia, Trends and Issues in Crime and Criminal Justice No 419 (Australian Institute of Criminology, 2011) 2; Monica Campo, Children’s Exposure to Domestic and Family Violence: Key Issues and Responses, CFCA Paper No 36 (Australian Institute of Family Studies, 2015); K. O’Brian et al, ‘Lifting the Cloak of Silence: Resilient Australian Women’s Reflected Memories of Their Childhood Experiences of Witnessing Domestic Violence’ (2013) 28 Journal of Family Violence 95, 96; United Nations Children’s Fund, Behind Closed Doors: The Impact of Domestic Violence on Children (UNICEF, 2006).

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35. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 2, 106. See also the definition of family violence in section 5(1) of the Family Violence Protection Act 2008 (Vic), which recognises children seeing, hearing or otherwise being exposed to family violence as a form of ‘family violence’.

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36. The definition of ‘primary victim’ in section 7 of the Victims of Crime Assistance Act 1996 (Vic) only extends to persons who are injured or die ‘as a direct result of an act of violence committed against him or her’.

    ↑

37. This is illustrated by NF v Victims of Crime Assistance Tribunal [2012] VCAT 1740 (16 November 2012) in which, despite witnessing his father beat his stepfather to death, the applicant was unable to apply as a primary victim notwithstanding the severe psychological impact of the violence on him.

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38. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 39.

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39. For example, in Smith v Victims of Crime Assistance Tribunal [2003] VCAT 1489 (22 October 2003), a daughter who inadvertently interrupted an assault by her father on her mother was found to be a secondary, rather than primary, victim, on the basis that her injuries had been as a result of witnessing the act of violence.

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40. In Smith v Victims of Crime Assistance Tribunal, VCAT held that although the applicant had assisted her mother by staying with her after the assault, collecting a flannel and bowl to clean her wounds and putting her brother to bed, the assistance she had rendered was ‘no more than offering first aid … after the event’ and did not constitute ‘aid’ as contemplated by the VOCAA: ibid [23].

    ↑

41. In Will v Victims of Crime Assistance Tribunal [2011] VCAT 1739 (13 September 2011), VCAT held that although the applicant had attended on her son as soon as she was informed of the violence and stayed by his bedside for many hours a day for several months while he recovered in hospital, suffering depression and anxiety as a result, the applicant was not a primary victim under the VOCAA and was also not a ‘secondary victim’ as she was not present at the time of the violence.

    ↑

42. Section 3(1) of the Victims of Crime Assistance Act 1996 (Vic) defines a ‘close family member’ as a ‘person who had a genuine personal relationship with the victim at the time of the death’ and is the spouse, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, step-brother or step-sister of the victim. In Reid v Victims of Crime Assistance Tribunal [2002] VCAT 373 (24 May 2002), VCAT found that the relationship between an aunt and her niece who had been murdered was not an ‘intimate personal relationship’ for the purposes of the VOCAA, and that therefore the aunt was not a ‘related victim’, as they had had infrequent contact in the years preceding the primary victim’s death.

    ↑

43. Section 3(1) of the Victims of Crime Assistance Act 1996 (Vic) defines ‘spouse’ as a person to whom the person is married.

    ↑

44. See Victims of Crime Assistance Act 1996 (Vic) s 3(1): definition of ‘domestic partner’.

    ↑

45. They may able to make an application as a ‘secondary victim’ if they witnessed the act of violence: Victims of Crime Assistance Act 1996 (Vic) s 10A.

    ↑

46. Since 2009, de facto couples and married couples have the same property and parenting rights under the Family Law Act 1976 (Cth).
    
    These changes were introduced by Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).

    ↑

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

    ↑

48. See generally Eleanor Bourke and Colin Bourke, ‘Aboriginal Families in Australia’ in Robyn Hartley (ed) Families and Cultural Diversity in Australia (Australian Institute of Family Studies, 1995) <https://aifs.gov.au/publications/families-and-cultural-diversity-australia/3-aboriginal-families-australia>.

    ↑

49. See, eg, RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009) [20]. While VCAT accepted that the applicant was a ‘traumatised person’, it found that there was no evidence that she suffered a mental illness or disorder.

    ↑

50. However, in AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (23 December 2010) VCAT held that the presence of anxiety symptoms without an anxiety disorder still amounted to a mental injury for the purposes of the VOCAA.

    ↑

51. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

    ↑

52. Ibid.

    ↑

53. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 49.

    ↑

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

    ↑

55. 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) 67.

    ↑

56. Christine Forster, ‘Good Law or Bad Lore? The Efficacy of Criminal Injuries Compensation Schemes for Victims of Sexual Abuse: A New Model of Sexual Assault Provisions’ (2005) 32 University of Western Australia Law Review 264, 294.

    ↑

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

    ↑

58. Submission 8 (Victim Survivors’ Advisory Council). See also submission 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), noting that approximately half (48.9%) of participants in its practitioner survey encountered issues relating to client eligibility.

    ↑

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

    ↑

60. Ibid.

    ↑

61. Submission 10 (Eastern Metropolitan Regional Family Violence Partnership). See also Submission 1 (Judicial Advisory Group on Family Violence).

    ↑

62. Submissions 13 (Adviceline Injury Lawyers), 38 (Ryan Carlisle Thomas Lawyers).

    ↑

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

    ↑

64. Submission 18 (cohealth).

    ↑

65. Submission 14 (Inner Melbourne Community Legal).

    ↑

66. Submission 45 (Daniel Myles et al).

    ↑

67. Submission 41 (Springvale Monash Legal Service).

    ↑

68. Submission 43 (knowmore).

    ↑

69. Submission 14 (Inner Melbourne Community Legal).

    ↑

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

    ↑

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

    ↑

72. Victims of Crime Assistance Act 1996 (Vic) s 8(1).

    ↑

73. Ibid s 8A.

    ↑

74. Ibid ss 10(1) and 13(1).

    ↑

75. Ibid s 12(1).

    ↑

76. Ibid.

    ↑

77. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 65–6.

    ↑

78. Ibid 66–7.

    ↑

79. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 199–200.

    ↑

80. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 9.

    ↑

81. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 78.

    ↑

82. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 53.

    ↑

83. See Chapter 6 Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017).

    ↑

84. This is the maximum award for a primary victim of a single criminal act in Tasmania: Victims of Crime Assistance Regulations 2010 (Tas) reg 4(1)(a).

    ↑

85. This is the maximum award for a primary victim in South Australia: Victims of Crime Act 2001 (SA) s 20(3)(c).

    ↑

86. Victims of Crime Assistance Act 2009 (Qld) s 38(1); Criminal Injuries Compensation Act 2003 (WA) s 31.

    ↑

87. See, eg, a media report concerning a victim of an assault who was badly injured and has been unable to return to work. The assault victim applied to VOCAT for financial assistance in 2013 and was awarded $70,000—the maximum available to a primary victim under the VOCAA. Four years later, in 2017, the assault victim describes this money as ‘drying up’, see William Vallely, ‘Damages Do Not Fit the Crime: Victim’, Bendigo Advertiser (online), 21 July 2017 <www.bendigoadvertiser.com.au/story/4804647/victims-plea-for-justice/>.

    ↑

88. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 32–3.

    ↑

89. The VOCAA requires VOCAT to try to hear and determine together all applications made by related victims of any one act of violence: Victims of Crime Assistance Act 1996 (Vic) s 32(2). On the Application Form, VOCAT states that it waits until all related victims have lodged their applications in order to hear them together: Victims of Crime Assistance Tribunal, Guide to Completing the Application for Assistance Form (2016) Section 10.

    ↑

90. See, eg, NF v Victims of Crime Assistance Tribunal [2012] VCAT 1740 (16 November 2012), in which martial arts therapy was found to constitute ‘counselling’, and Ractliffe v Victims of Crime Assistance Tribunal [2015] VCAT 205 (4 March 2015), in which the cost of an occupational therapy assessment provided for the purpose of regaining a driving licence was considered a ‘medical expense’.

    ↑

91. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 81-2.

    ↑

92. For a discussion of the economic consequences of family violence, see generally Australia’s National Research Organisation for Women’s Safety, Building Effective Policies and Services to Promote Women’s Economic Security Following Domestic Violence, State of Knowledge Paper No 7 (ANROWS Landscapes, 2015). See also Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence–Report on the Stepping Stones Project (Women’s Legal Service Victoria, 2015).

    ↑

93. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 48.

    ↑

94. Ibid.

    ↑

95. See, eg, CS v Victims of Crime Assistance Tribunal [2006] VCAT 1061 (9 June 2006), in which VCAT held that counselling expenses were not reasonable because, among other things, there was little evidence of improvement in the applicant’s mental health.

    ↑

96. Victims of Crime Assistance Act 1996 (Vic) ss 8(3), 10A(1) and 13(4).

    ↑

97. Consultations 7 (Family Violence and Advocacy Organisations), 13 (Regional Consultation—Mildura Legal Professionals).

    ↑

98. For example, the applicant’s claim for a gym membership was successful in Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011), but was unsuccessful in ML v Victims of Crime Assistance Tribunal [2006] VCAT 292 (28 February 2006).

    ↑

99. See RN v Victims of Crime Assistance Tribunal [2005] VCAT 2651 (14 December 2005) where VCAT held that the victim’s resulting post-traumatic stress disorder, anxiety and depression were ‘depressingly common’ for victims of rape and therefore not ‘unusual, special or out of the ordinary’. In contrast in Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237, the persistence of depression and post-traumatic stress disorder more than 12 years after the assault, along with the continued disfigurement to the nose, was considered by VCAT as ‘circumstances out of the ordinary course’.

    ↑

100. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 230.

     ↑

101. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

103. Submission 41 (Springvale Monash Legal Service).

     ↑

104. Ibid.

     ↑

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

     ↑

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

     ↑

107. Submission 18 (cohealth).

     ↑

108. Ibid.

     ↑

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

     ↑

110. Submission 19 (Schembri & Co Lawyers).

     ↑

111. Ibid.

     ↑

112. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

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

     ↑

114. Submission 1 (Judicial Advisory Group on Family Violence).

     ↑

115. Submission 18 (cohealth).

     ↑

116. Submission 14 (Inner Melbourne Community Legal).

     ↑

117. Ibid.

     ↑

118. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 80.

     ↑

119. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 76–81.

     ↑

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

     ↑

121. Ibid s 29(1A)

     ↑

122. Ibid s 29(2).

     ↑

123. Ibid s 29(3).

     ↑

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

     ↑

125. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 9.

     ↑

126. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 197–8.

     ↑

127. Ibid 198. See also Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds), Victimology (Australian Institute of Criminology, 1996) 246–7.

     ↑

128. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 101. Recent research by the Royal Commission into Institutional Responses to Child Sexual Abuse found that for victims aged approximately 11 years at the time of alleged sexual abuse, the average time taken to make a complaint to the Catholic Church was 33 years: Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. See also Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Service, Final Report (2016) 59, discussing reasons why victims with disability may face barriers to reporting abuse.

     ↑

129. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 102. See also, eg, Angela Dwyer, ‘Policing Lesbian, Gay, Bisexual and Transgender Young People: A Gap in the Research Literature’ (2011) 22(3) Current Issues in Criminal Justice 415, 416, discussing the unwillingness to report to police among LGBTIQ victims of crime; Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6, discussing the unwillingness to involve authorities among LGBTIQ victims of family violence, and Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 11, discussing the unwillingness to report to police among Aboriginal and Torres Strait Islander victims of crime.

     ↑

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

     ↑

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

     ↑

132. See, eg, BFK v Victims of Crime Assistance Tribunal ibid, FG v Victims of Crime Assistance Tribunal [2011] VCAT 2449 (1 September 2011) and J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002).

     ↑

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

     ↑

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

     ↑

135. Submission 51 (Law Institute of Victoria).

     ↑

136. Victims of Crime Assistance Act 1996 (Vic) s 50(1). The VOCAA also 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’: s 51.

     ↑

137. Victims of Crime Assistance Act 1996 (Vic) s 50(4).

     ↑

138. Ibid s 52(b).

     ↑

139. Ibid s 52(c).

     ↑

140. Ibid s 52(a)(i).

     ↑

141. Ibid s 52(a)(ii).

     ↑

142. Ibid s 53.

     ↑

143. In FG v Victims of Crime Assistance Tribunal [2011] VCAT 2449 (1 September 2011) and J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002), both cases concerning child sexual abuse, VCAT held that the applicants’ significant delay in reporting was not unreasonable. In FG v Victims of Crime Assistance Tribunal, the applicant alleged she had been repeatedly sexually abused by her grandfather between the ages of five and 10. In considering whether the applicant’s failure to report was ‘reasonable’ under section 52 of the VOCAA, VCAT determined that it was not reasonable for the victim to report the abuse while her grandfather was alive because of the family dynamics. VCAT also accepted that it ‘would have been futile to make a report to the police after his death’. Similarly, in J v Victims of Crime Assistance Tribunal, a case concerning a 35-year delay in the reporting of an alleged sexual abuse, VCAT noted that the [the perpetrator] ‘was an adult member of the family and a teacher. In that position he was more … likely to be believed over the Applicant.’ However, in contrast in S v Victims of Crime Assistance Tribunal [2002] VCAT 1257 (7 November 2002), a case concerning a 22-year delay in the reporting of an alleged rape to police, VCAT affirmed the decision of VOCAT to refuse the application on the grounds the applicant had not reported the alleged rape to police within a reasonable time, noting the victim was not threatened or intimidated by the alleged offenders, having only been ‘mocked’ by them.

     ↑

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

     ↑

145. Ibid s 54(c).

     ↑

146. Ibid s 54(d).

     ↑

147. Ibid s 54(e).

     ↑

148. Ibid s 54(f).

     ↑

149. See Chapter 10, Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017).

     ↑

150. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 105.
     
     See also Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 189.

     ↑

151. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 105.

     ↑

152. Ibid 107.

     ↑

153. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 237–9.

     ↑

154. Ibid 239.

     ↑

155. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 108.

     ↑

156. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse, 2010) 8. See also Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) a family violence case in which VCAT held that although the applicant may have provoked the assault, it was nevertheless outweighed by the actions of the perpetrator.

     ↑

157. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 117–23.

     ↑

158. Ibid.

     ↑

159. Ibid.

     ↑

160. Ibid.

     ↑

161. Ibid 118. See also Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14.

     ↑

162. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 11. See also Clear Horizon Consulting, Evaluation of the Koori Family Violence Police Protocols: Ballarat, Darebin and Mildura (Victoria Police, 2015) 3.

     ↑

163. Angela Dwyer, ‘Policing Lesbian, Gay, Bisexual and Transgender Young People: A Gap in the Research Literature’ (2011) 22(3) Current Issues in Criminal Justice 415, 416. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6.

     ↑

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

     ↑

165. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14.

     ↑

166. See Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 106, and Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 120.

     ↑

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

     ↑

168. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 123.
     
     See also Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 180.

     ↑

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

     ↑

170. [2011] VCAT 2106 (10 November 2011).

     ↑

171. Ibid [29].

     ↑

172. See, eg, Nguyen v Victims of Crime Assistance Tribunal [2001] VCAT 2028 (28 September 2001); Larson v Victims of Crime Assistance Tribunal [2012] VCAT 1162 (6 August 2012).

     ↑

173. See, eg, Hay v Victims of Crime Assistance Tribunal [2002] VCAT 45 (15 February 2002); Rajah v Victims of Crime Assistance Tribunal [2002] VCAT 1422 (6 December 2002).

     ↑

174. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 122.
     
     See also RUM v Victims of Crime Assistance Tribunal [2016] VCAT 367 (10 March 2016); TNX v Victims of Crime Assistance Tribunal [2014] VCAT 1234 (15 September 2014); Rajah v Victims of Crime Assistance Tribunal [2002] VCAT 1422 (6 December 2002); MK v Victims of Crime Assistance Tribunal [2013] VCAT 1582 (10 September 2013). See also Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal: Best Practice Manual (Whittlesea Community Connections, 2011) 49.

     ↑

175. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 122–3. See also Community Legal Centres NSW, Submission to New South Wales Department of Attorney General and Justice, Review of NSW’s Victims Compensation Scheme, 30 April 2012, 47; Smart Justice, Better Support for Victims of Crime, Factsheet (2010); Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Impacts (2017) vol 3, 143–6.

     ↑

176. James Ogloff et al, Child Sexual Abuse and Subsequent Offending and Victimisation: A 45 Year Follow-Up Study, Trends and Issues in Crime and Criminal Justice No 440 (Australian Institute of Criminology, 2012) 5.

     ↑

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

     ↑

178. David Miers, ‘Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Studies 242, 258. See also the discussion of the link between family violence and criminal offending in Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 237–45 and the discussion of the link between sexual abuse and criminal offending in Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Impacts (2017) vol 3, 143–6.

     ↑

179. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 123.

     ↑

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

     ↑

181. Submission 46 (Victoria Legal Aid) 3.

     ↑

182. Submission 41 (Springvale Monash Legal Service).

     ↑

183. Ibid.

     ↑

184. Submission 18 (cohealth).

     ↑

185. Ibid.

     ↑

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

     ↑

187. Ibid.

     ↑

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

     ↑

189. Ibid.

     ↑

190. Submission 43 (knowmore).

     ↑

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

     ↑

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

     ↑

193. Submission 39 (Victorian Aboriginal Legal Service).

     ↑

194. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 129.

     ↑

195. See ibid Ch 12.

     ↑

196. See Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 128, Ch 9.

     ↑

197. Victims of Crime Assistance Act 1996 (Vic) s 59(1).

     ↑

198. See Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 158.

     ↑

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

     ↑

200. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 61.

     ↑

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

     ↑

202. However, VOCAT is still bound by the provisions of the VOCAA relating to the payment of and amounts of assistance: Victims of Crime Assistance Act 1996 (Vic) ss 60(1) and (4).

     ↑

203. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 60.

     ↑

204. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 60.

     ↑

205. Victims of Crime Assistance Act 1996 (Vic) s 62.

     ↑

206. Ibid s 62(4).

     ↑

207. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 129–30. See, eg, Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017).

     ↑

208. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 129–30.

     ↑

209. Ibid.

     ↑

210. Ibid 130.

     ↑

211. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 131–3.

     ↑

212. Ibid 131. The variation window of six years is set out in section 60(2) in the Victims of Crime Assistance Act 1996 (Vic).

     ↑

213. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 132.

     ↑

214. 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) 33.

     ↑

215. 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, 558.

     ↑

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

     ↑

217. Ibid.

     ↑

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

     ↑

219. Ibid.

     ↑

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

     ↑

221. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

223. Ibid.

     ↑

224. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 128, and Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 129.

     ↑

225. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

226. Submission 18 (cohealth).

     ↑

227. Victims of Crime Assistance Act 1996 (Vic) s 26(1)(a); Victims of Crime Assistance Rules 2010 (Vic) r 6.

     ↑

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

     ↑

229. Ibid s 26(2); Victims of Crime Assistance Tribunal, Application for Assistance Form (2016) 2, 7.

     ↑

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

     ↑

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

     ↑

232. Ibid.

     ↑

233. Victims of Crime Assistance Act 1996 (Vic) s 39(1).

     ↑

234. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 24.

     ↑

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

     ↑

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

     ↑

237. Ibid.

     ↑

238. Ibid 24.

     ↑

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

     ↑

240. Ibid s 32(3).

     ↑

241. Ibid s 41(2).

     ↑

242. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 24.

     ↑

243. Ibid.

     ↑

244. Victims of Crime Assistance Act 1996 (Vic) s 56.

     ↑

245. Ibid s 56(1).

     ↑

246. Ibid s 56(4).

     ↑

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

     ↑

248. Ibid.

     ↑

249. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 117–18. VOCAT has recognised an increase in the complexity of applications as a cause of delay, see Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 37.

     ↑

250. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 37.

     ↑

251. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 120. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 81.

     ↑

252. Ibid 117–18. For VOCAT’s discussion of increasing complexity and delays, see Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 37.

     ↑

253. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 120.

     ↑

254. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 142.

     ↑

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

     ↑

256. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 142. See also Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 73.

     ↑

257. Victims of Crime Assistance Tribunal, Guide to Completing the Application for Assistance Form (2016) 15.

     ↑

258. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 143 citing 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) 33.

     ↑

259. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017), 143.

     ↑

260. Ibid 143. See also Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 24.

     ↑

261. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 37.

     ↑

262. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 9, cited in Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 143.

     ↑

263. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 144. See also Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 40.

     ↑

264. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 144.

     ↑

265. Ibid 144–5.

     ↑

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

     ↑

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

     ↑

268. Ibid.

     ↑

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

     ↑

270. Submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

272. Ibid.

     ↑

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

     ↑

274. Submission 43 (knowmore).

     ↑

275. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

277. Submission 24 (Darebin Community Legal Centre).

     ↑

278. Submission 14 (Inner Melbourne Community Legal).

     ↑

279. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 140. See also Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 192 and 208.

     ↑

280. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 140–1. See also Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 43.

     ↑

281. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 142.

     ↑

282. Victims Rights and Support Act 2013 (NSW) ss 44(3) and 40; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 9 and pt 1.2 div 1.2.2 of sch 1; Victims of Crime Assistance Act 2006 (NT) s 31(3)(a) and Victims of Crime Assistance Regulations 2007 (NT) regs 5 and 22, sch 3; Victims of Crime Assistance Act 2009 (Qld) s 25(2).

     ↑

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

     ↑

284. In the 2016–17 financial year, only 14 per cent of applications were determined at hearings, see Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 36.

     ↑

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

     ↑

286. Ibid s 34(2).

     ↑

287. Ibid s 34.

     ↑

288. See Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties (11 December 2008), which sets out the procedures and timeframes for the notification process.

     ↑

289. Victims of Crime Assistance Act 1996 (Vic) s 35(1).

     ↑

290. See Lee v New South Wales Crime Commission (2013) 251 CLR 196 [125] (Crennan J), [171] (Kiefel J).

     ↑

291. AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015) [24].

     ↑

292. Ibid [25].

     ↑

293. Ibid [26].

     ↑

294. Victims of Crime Assistance Act 1996 (Vic) s 38(1)(a).

     ↑

295. Ibid s 38(1)(b).

     ↑

296. Ibid s 42(1).

     ↑

297. Ibid s 37(2).

     ↑

298. Ibid s 42(1)(a).

     ↑

299. Ibid s 42(1)(b).

     ↑

300. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 155.
     
     See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 246–7.

     ↑

301. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 88-9.
     
     See also 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, 58, 60.

     ↑

302. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 89.

     ↑

303. Ibid 143.

     ↑

304. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 157–63.

     ↑

305. Ibid 154–5.

     ↑

306. Ibid 154.

     ↑

307. Ibid.

     ↑

308. Ibid. See also Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 43.

     ↑

309. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 155.

     ↑

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

     ↑

311. Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159, 159.
     
     See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 18.

     ↑

312. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 18; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 38.

     ↑

313. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 141.

     ↑

314. Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (RMIT University, 2014) 6.

     ↑

315. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 90.

     ↑

316. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 158.

     ↑

317. Ibid 160.

     ↑

318. Ibid 162.

     ↑

319. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247, Recommendations 50 and 51.

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

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

     ↑

326. Ibid.

     ↑

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

     ↑

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

     ↑

329. Submission 20 (Office of the Victorian Information Commissioner).

     ↑

330. Submission 46 (Victoria Legal Aid).

     ↑

331. Ibid.

     ↑

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

     ↑

333. Submission 28 (South Metropolitan Integrated Family Violence Executive).

     ↑

334. Submission 46 (Victoria Legal Aid).

     ↑

335. Submission 14 (Inner Melbourne Community Legal).

     ↑

336. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

337. Submission 41 (Springvale Monash Legal Service).

     ↑

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

     ↑

339. Ibid.

     ↑

340. Submission 19 (Schembri & Co Lawyers).

     ↑

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

     ↑

342. Ibid.

     ↑

343. Submission 22 (YourLawyer).

     ↑

344. Ibid.

     ↑

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

     ↑

346. See, eg, Submissions 8 (Victim Survivors’ Advisory Council), 10 (Eastern Metropolitan Regional Family Violence Partnership), 43 (knowmore).

     ↑

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

     ↑

348. Ibid.

     ↑

349. Ibid.

     ↑

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

     ↑

351. Submission 43 (knowmore).

     ↑

352. Submission 28 (South Metropolitan Integrated Family Violence Executive).

     ↑

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

     ↑

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

     ↑

355. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 134.

     ↑

356. Victims of Crime Assistance Act 2009 (Qld) s 139(b) and (c).

     ↑

357. Victims Rights and Support Act 2013 (NSW) s 10(1)(a).

     ↑

358. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 135.

     ↑

359. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 81.

     ↑

360. Ibid.

     ↑

361. Ibid.

     ↑

362. Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence–Report on the Stepping Stones Project (Women’s Legal Service Victoria, September 2015) 56.

     ↑

363. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 18.

     ↑

364. Ibid.

     ↑

365. See Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 21.

     ↑

366. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 136.

     ↑

367. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 167.

     ↑

368. Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence–Report on the Stepping Stones Project (Women’s Legal Service Victoria, 2015) 56.

     ↑

369. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 32.

     ↑

370. 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) 57–8.

     ↑

371. Betty Chan et al, ‘Support and Compensation: Lessons from Victims of Crime’ (Paper presented at the Actuaries Institute Injury Schemes Seminar, Gold Coast, 10–12 November 2013) 17.

     ↑

372. Ibid 170.

     ↑

373. Ibid.

     ↑

374. 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) 33.

     ↑

375. Victims Support Agency, Department of Justice and Regulation (Vic), Guide to Victim Impact Statements, Brochure (2015).

     ↑

376. Office of Public Prosecutions (Vic), Victim or Family Member Report Form, Brochure (2012).

     ↑

377. Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 169.

     ↑

378. Ibid.

     ↑

379. 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) 39.

     ↑

380. Ibid 59.

     ↑

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

     ↑

382. Based on a comparison between the number of victim reports for crimes against the person in Victoria between April 2016 and March 2017 and the number of applications to VOCAT, the Commission estimates that only around 9% of eligible victims are applying for financial assistance through VOCAT. For further discussion, see Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 167.

     ↑

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

     ↑

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

     ↑

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

     ↑

386. Submission 30 (CASA Forum).

     ↑

387. Submission 33 (Eastern Community Legal Centre).

     ↑

388. Submission 27 (Name withheld).

     ↑

389. Submission 14 (Inner Melbourne Community Legal).

     ↑

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

     ↑

391. Submission 38 (Ryan Carlisle Thomas Lawyers).

     ↑

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

     ↑