Victims of Crime Assistance Act 1996: Report (html)

6. The role of an alleged perpetrator in state-funded financial assistance for victims of crime

Introduction

6.1 This chapter considers the current provisions of the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) that:

• enable VOCAT to give notice of the time and place for a VOCAT hearing to any other person whom the Tribunal considers has ‘a legitimate interest’ in the matter.^[1]

• allow ‘any other person or body that, in the Tribunal’s opinion, has a substantial interest’ in the matter to appear and be heard by VOCAT.^[2]

6.2 In this chapter, these provisions are referred to as ‘alleged perpetrator notification and appearance’ provisions.^[3]

6.3 The alleged perpetrator notification and appearance provisions of the VOCAA were identified in both the first and supplementary terms of reference as specific matters the Commission was asked to consider in its review of the VOCAA. In particular:

• Matter three of the first terms of reference ask 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’.

• The seventh matter in the supplementary terms of reference ask the Commission to consider whether ‘it is appropriate in certain circumstances (as is currently the case) for alleged perpetrators of a crime to be notified of applications to VOCAT or to be called to give evidence’.

6.4 This chapter also relates to the objectives articulated in the supplementary terms of reference that a state-funded financial assistance scheme should seek to achieve outcomes for victims that minimise trauma and maximise therapeutic effect.

6.5 Accordingly, this chapter considers:

• current law relating to alleged perpetrator notification and appearance under the VOCAA

• stakeholder and community views on alleged perpetrator notification and appearance provisions

• whether alleged perpetrator notification and appearance provisions should form part of state-funded financial assistance.

6.6 The Commission considers that the question of involvement of an alleged perpetrator—and whether such involvement is necessary as a matter of procedural fairness in a state-funded financial assistance scheme—is a threshold matter that must be considered regardless of the model of state-funded financial assistance. Accordingly, the Commission’s discussion in this chapter precedes and informs the Commission’s consideration of models of assistance in part three of this report.

Current law

6.7 Under section 34(2) of the VOCAA, 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.^[4]

6.8 Section 35(1) states that ‘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’.^[5]

6.9 A person or body that has a ‘substantial interest’ and is entitled to appear and be heard by VOCAT becomes a party to the matter.^[6] VOCAT must give a party to the matter a reasonable opportunity to call or give evidence, examine, cross-examine or re-examine witnesses, and make submissions to VOCAT.^[7]

6.10 The discretion in section 34(2) of the VOCAA—which allows, but does not compel, VOCAT to give notice to those with a legitimate interest—is wide. However the VOCAA does not require VOCAT to give notice in all circumstances. Instead, the VOCAA limits notice to where VOCAT is satisfied that another person has a ‘legitimate interest’ the matter. The VOCAA does not specify any factors VOCAT may or must consider in determining who might have a ‘legitimate interest’ in a matter.

6.11 Similarly to section 34(2) of the VOCAA, section 35(1) also provides VOCAT with discretion to determine whether another person or body has a ‘substantial interest’ in a matter, if so, such persons or bodies are entitled to appear and be heard by the Tribunal at a VOCAT hearing. However, and again similarly to section 34(2) discussed above, the VOCAA is silent on what factors VOCAT may consider in determining whether another person or body has a ‘substantial interest’ in a matter. As a consequence, the VOCAA affords VOCAT with a broad and unfettered discretion to determine who in fact has a ‘substantial interest’.

6.12 VOCAT has issued a practice direction in relation to notification of alleged perpetrators and other third parties.^[8] The practice direction provides that where the Tribunal indicates that consideration is being given to notifying the alleged perpetrator, the following procedures are to apply:^[9]

• The Tribunal will advise the applicant or their legal representative in writing that notification of the alleged perpetrator is being considered, and 21 days will be allowed for a response.

• At the conclusion of 21 days, the registrar will refer the matter, including any submissions/objections received, to the Tribunal Member considering the notification to make a decision as to whether the alleged perpetrator will be notified of the application.

• If the Tribunal Member determines that the alleged perpetrator is to be notified of the application, the applicant or their legal representative will be advised of this in writing before the alleged perpetrator is notified of the application. The applicant or their legal representative will be allowed 21 days to advise the Tribunal as to whether the application for financial assistance is still to be pursued.

• If the applicant or their legal representative advises that the applicant wishes to proceed with their application for financial assistance, or no response is received by the Tribunal, the registrar will send notification of the application to the alleged perpetrator by registered mail. The registrar will allow the alleged perpetrator 14 days to advise the Tribunal as to whether they intend to participate in the hearing.

• If no response is received from the alleged perpetrator, the registrar will refer the application for financial assistance to the Tribunal Member for listing advice. In these circumstances, the registrar is required to advise the applicant or their legal representative that the alleged perpetrator will not be attending the hearing.

• If the alleged perpetrator elects to be notified of the hearing, the registrar will list the application for a directions hearing and notify the applicant or their legal representative of the time, date and place of the directions hearing.

• Pursuant to any directions given at the directions hearing, the application will be listed for hearing and both the applicant or their legal representative and the alleged perpetrator will be notified of the time, date and place of the hearing.

6.13 VOCAT does not publish data relating to alleged perpetrator notification or appearance. Therefore, it is difficult to determine the percentage of cases where an applicant is notified of VOCAT’s intention to notify an alleged perpetrator, or how frequently this may be objected to by an applicant. There is also no statistical data available to the Commission on how often alleged perpetrators attend VOCAT hearings.

6.14 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria stated that although perpetrator notification can be a key concern for many victims, in practice alleged perpetrators are notified infrequently, and only rarely choose to participate in a hearing.^[10]

6.15 Case law in relation to alleged perpetrator notification and appearance is also limited. However, the Supreme Court of Victoria has considered the alleged perpetrator notification and appearance provisions. In A B v Victims of Crime Assistance Tribunal,^[11] the applicant made a claim for assistance with respect to alleged physical and sexual abuse by her father. The applicant’s father was given notice of her application and, pursuant to section 35(4) of the Act, became a party to the proceeding. The father wished to call his own witnesses, including the applicant’s mother. However, VOCAT excused the mother from giving evidence out of concern for the wellbeing of the applicant. In that case, Justice McDonald stated:

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.^[12]

6.16 Justice McDonald further stated:

Having regard to the nature of proceedings before the Tribunal, it is inevitable that an applicant could be traumatised by the experience of encountering an alleged perpetrator in Tribunal proceedings. This is expressly acknowledged by the power to conduct a hearing without giving notice to the alleged perpetrator and the power to make alternative arrangements for the giving of evidence by a witness, as set out at para [22] above. These provisions demonstrate that the Act seeks to protect the interests of an applicant. The duty to act fairly — and the parameters of the obligation to provide an alleged perpetrator with a reasonable opportunity to call evidence— must be considered in the context of the statutory scheme. That scheme requires the interests of the applicant to be given due weight vis a vis the right of an alleged perpetrator to be accorded a reasonable opportunity to call evidence.^[13]

6.17 Justice McDonald, citing the decision in Kioa v West^[14] also stated that ‘what is appropriate in terms of procedural fairness will depend on the circumstances of the case, including the nature of the inquiry before the Tribunal’.^[15]  

6.18 In the Supreme Court of Victoria decision in P v Crimes Compensation Tribunal,^[16] relating to similar alleged perpetrator notification and appearance provisions in the Criminal Injuries Compensation Act 1983 (Vic),^[17] VOCAA’s predecessor, the Supreme Court of Victoria stated:

It may well be that in some cases any interest which the alleged offender may have in the determination of the application will be outweighed by a serious risk to an applicant. The notion that an applicant is informed of the decision to notify the alleged offender merely to enable her to withdraw her application is offensive. It contemplates that a person may be put in a position of having to abandon a genuine claim because of fear without the opportunity of being heard on the issue whether, in her circumstances, the notification of the alleged offender is “appropriate”. This result could not have been intended by the legislature nor should it form any part of the Tribunal’s policy.^[18]

6.19 Accordingly, in P v Crimes Compensation Tribunal^[19] the Supreme Court of Victoria determined that the Crimes Compensation Tribunal (VOCAT’s predecessor) be prohibited from notifying the alleged perpetrator without giving victims an opportunity to be heard on that matter.

6.20 VOCAT’s current practice direction in relation to notification of alleged perpetrators and other third parties^[20] requires VOCAT to notify the applicant or their legal representative in writing that notification of the alleged perpetrator is being considered by the Tribunal, allowing for the victim or their legal representative to object to such notification, consistent with the decision in P v Crimes Compensation Tribunal.^[21]

6.21 However, both the VOCAA and the VOCAT practice direction are silent on what factors VOCAT considers where a victim objects to alleged perpetrator notification, and in what circumstances an alleged perpetrator may still be notified despite an applicant’s objection.^[22]

6.22 VOCAT states in its 2016-17 annual report that:

In situations where we are asked to decide whether a crime occurred, we may consider it appropriate to ask alleged offenders if they want to be heard. To reduce any possible stress and anxiety where an alleged offender is notified, VOCAT will generally meet the cost of the alleged offender’s legal representation and make directions for the hearing to be conducted in a manner which limits contact between the parties, for instance, by having a party give evidence via a video-link.^[23]

6.23 In terms of the effects of alleged perpetrator notification and appearance provisions, the case of BFK v Victims of Crime Assistance Tribunal,^[24] illustrates the way in which perpetrator notification and appearance provisions can operate. Although in this case, the relevant hearing for the purposes of perpetrator appearance was the VCAT rather than VOCAT hearing, it illustrates the nature of such proceedings where an alleged perpetrator might appear.

6.24 In BFK v Victims of Crime Assistance Tribunal,^[25] the applicant (BFK) made a claim to VOCAT in relation to an alleged rape by a former boyfriend (YVP). YVP was given ‘the opportunity to put his view in this proceeding … he responded by way of written statement denying the allegation, referring to their consensual sexual relationship’.^[26] YVP also submitted that he wished to have no further part in the proceeding however, on the victim’s request, VCAT issued a witness summons to YVP who attended the hearing, gave evidence, and was cross-examined by BFK’s and VOCAT’s lawyers.^[27]

6.25 BFK v Victims of Crime Assistance Tribunal,^[28] concerned an out of time application under section 29 of the VOCAA. In affirming VOCAT’s decision not to allow an out of time application, VCAT referenced YVP’s oral evidence at the VCAT hearing, which VCAT determined was ‘largely consistent and not weakened during cross-examination’.^[29]

Responses

6.26 A significant proportion of stakeholders told the Commission that regardless of the number of alleged perpetrators actually notified about a VOCAT matter—or the even smaller number of alleged perpetrators who might actually attend a VOCAT hearing—the potential for alleged perpetrator notification or appearance can deter victims from applying or proceeding with their VOCAT application.^[30]

6.27 As stated by Inner Melbourne Community Legal:

It is not just actual notification that causes applicants distress, but the idea that they may be potentially notified. In the case of one of our client’s, they experienced loss of sleep, psoriasis, and an increase in anxiety symptoms at the idea of having to face their assailant at a hearing.^[31]

6.28 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also submitted: ‘It is apparent that the mere potential for an alleged offender to be notified about an application can deter some victims from submitting an application’ ^[32] As also submitted by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria:

[t]he notion that the very person who harmed the applicant might be told about the application, and choose to participate in a hearing, can be an intimidating prospect, particularly for victims of family violence and sexual assault.^[33]

6.29 Accordingly, VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that ‘in weighing up whether or not an alleged perpetrator should be notified, the Tribunal Member considers a range of factors, including any safety concerns expressed by the applicant’.^[34]

6.30 Some stakeholders submitted that there was a propensity for the perpetrator notification and appearance provisions to unfairly impact more vulnerable victims^[35] or victims of specific crimes, like sexual assault or family violence.^[36] The Commission was told that perpetrator notification is more likely to occur in situations where police have not laid charges, there is an acquittal or the matter is withdrawn by the prosecution.^[37] Some stakeholders told the Commission that perpetrator notification ‘almost always’ occurred in these situations, even if submissions are made by legal counsel opposing such notification.^[38]

6.31 Victoria Legal Aid submitted that ‘notification is more likely for low reported crimes such as sexual assault and family violence’,^[39] and that ‘victims of these crimes are particularly vulnerable to re-traumatisation’.^[40]

6.32 Dr Kate Seear et al raised concerns about victims of sexual assault, sexual abuse and/or family violence being subjected to extensive and often gruelling cross-examination by counsel representing the alleged perpetrator, particularly as rules of evidence do not apply under the VOCAA, thereby enabling such cross examination.^[41]

6.33 The Victim Survivors’ Advisory Council submitted that the nature and dynamics of family violence place victims at higher risk as a result of alleged perpetrator notification:

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.^[42]

6.34 Some stakeholders that alleged perpetrator notification was a further opportunity for family violence perpetrators to exercise control and domination.^[43]

6.35 The written submission by safe steps Family Violence Response Centre provided the following first-hand accounts by victims who had experienced perpetrator notification:^[44]

I had an absolutely horrible experience with VOCAT in the mid to late 90’s as a result of family violence and abuse issues. It scarred me for quite a long time because they wanted to call the perp to a hearing, and I refused to allow this because I did not feel safe. So the application failed.

At first they said he would not be informed, then he was informed, then they said he would not be at the hearing, then they tried to bully me into attending the hearing despite the fact I would have to have been cross-examined by his barrister.

6.36 The Commission was also told about a matter where the alleged perpetrator had attended the VOCAT hearing and although the magistrate used remote rooms for the giving of evidence, the victim had been highly distressed by the experience.^[45]

6.37 Anglicare Victoria’s Victim Assistance Program also submitted: ‘Victims do not understand the notification process … Most victims receive the letter and go into panic.’^[46]

6.38 As a result of the significant adverse effects on victims as a result of alleged perpetrator notification and appearance provisions as described above, there was strong stakeholder support for the alleged perpetrator notification and appearance provisions to be abolished entirely.^[47] Other stakeholders suggested the alleged perpetrator notification and appearance provisions be limited, including:

• that there be a legislative presumption against alleged perpetrator notification and appearance^[48] particularly for specific classes of victims, such as victims of family violence and victims of sexual assault^[49]

• that alleged perpetrator notification and appearance only occur where it is required to enable the decision maker to determine whether the criminal act occurred,^[50] where it is necessary to reach a fair decision,^[51] is proportionate to the facts,^[52] or where there are substantial doubts about the veracity of an application^[53]

• that alleged perpetrator notification only occur in ‘special circumstances’ or only where there are further safeguards in place to protect victims^[54]

• that alleged perpetrator notification only occur ‘where no specific safety risks are present’.^[55]

6.39 Some stakeholders on the other hand considered it important that alleged perpetrators have the opportunity to defend themselves.^[56] Although some stakeholder considered this ‘right’ should not be an unfettered right. For example, a representative of the Anglicare Victoria Victims Assistance Program stated:

the only time a perpetrator should be notified is if there are no reports to police and not charges. As a perpetrator the[y] should have the right to know of the alleged offence and have the opportunity to defend themselves.

6.40 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.^[57]

6.41 Some lawyers told the Commission that there might be some circumstances where it is important to give the alleged perpetrator the opportunity to be heard, especially where there has been no police report or no conviction, in order to test the applicant’s allegations.^[58]

6.42 Similarly, some academics consulted by the Commission told the Commission that an alleged perpetrator does have a legitimate interest in the outcome of the application and should therefore be given the opportunity to tell their side of the story.^[59]

6.43 However, other stakeholders queried the need to provide alleged perpetrators an opportunity to respond to matters raised in an application for state-funded financial assistance. Some victim support workers consulted suggested alleged perpetrators do not need to ‘defend’ claims related to victims’ assistance.^[60] 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.^[61]

6.44 Springvale Monash Legal Service’s submission referenced the decision in AB v Victims of Crime Assistance Tribunal,^[62] stating that such judgements demonstrate a ‘victim-centred’ approach which should be followed.^[63]

6.45 Similarly, the Victorian Council of Social Service submitted ‘A VOCAT hearing is not a trial – there is no requirement for ‘both sides’ to be heard and their stories weighed’.^[64]

6.46 Some stakeholders also submitted that even if an alleged perpetrator did have an interest in a VOCAT matter, current procedures already enable VOCAT to ‘override’ matters of procedural fairness under section 34 of the VOCAA.^[65] The Victorian Aboriginal Legal Service submitted that this ‘elevates the victim’s interests above those of the alleged perpetrator; elevating the principle of therapeutic justice and state-based assistance over that of procedural fairness’.^[66]

6.47 A number of stakeholders submitted alleged perpetrator notification and appearance undermined, or contradicted, the beneficial nature of the VOCAA. 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.^[67]

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.^[68]

6.48 The Victorian Council of Social Service submitted that:

VOCA principles include minimising trauma and maximising therapeutic effect. Notifying perpetrators is likely to undermine these goals and risks making the hearing process much less therapeutic.^[69]

6.49 Victoria Legal Aid also submitted that the perpetrator notification provisions ‘may compromise the therapeutic potential of a VOCAT hearing’.^[70]

6.50 Some stakeholders stated that perpetrator notification results in a more adversarial approach, akin to that of a criminal trial.^[71] Dr Kate Seear et al also submitted that alleged perpetrator notification and appearance enables alleged perpetrators to introduce into evidence matters relating to the victim’s character and behaviour without rules of evidence applying^[72]:

As offender notifications appear to be on the increase and are made without sufficient safeguards for victims, alleged offenders have a perverse incentive to raise questions about the character or conduct of the victim (including their past drug use).^[73]

6.51 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria supported greater protections to ensure ‘that an alleged offender is only notified of a hearing in appropriate circumstances’.^[74]

Discussion and the Commission’s conclusions

6.52 As noted in the introduction to this chapter, the Commission considers that the involvement of an alleged perpetrator—and whether such involvement is necessary as a matter of procedural fairness in a state-funded financial assistance scheme—is a threshold matter that must be considered regardless of the model of state-funded financial assistance.

6.53 Accordingly, the Commission must consider whether it remains appropriate for alleged perpetrators to be notified—and in certain circumstances, appear at a hearing for the purposes of a determining a victim’s application for assistance—regardless of consideration of the model of assistance, discussed in Chapters 7 and 8, and other technical or procedural reforms considered throughout this report.

6.54 In the Commission’s view, there are three main considerations relevant to alleged perpetrator notification and appearance:

• What are the effects of the alleged perpetrator notification provisions on victims of crime?

• Can the effects of the alleged perpetrator notification provisions be ameliorated through legislative or procedural protections?

• Notwithstanding any adverse effects for victims of crime, should alleged perpetrators have a right to be notified and heard in relation to a state-funded financial assistance application?

6.55 In examining the final matter, the Commission considers that the following must also be considered:

• the policy rationale and framework underpinning the Victims of Crime Assistance Act 1996 (Vic) when enacted, which included an aim to achieve ‘an appropriate balance between the interests of victims and the state and the rights of offenders’.^[75]

• the potential benefits, and interests, for both the state and alleged perpetrators, in having alleged perpetrator notification and appearance provisions.

6.56 In the final section of this chapter, the Commission considers that victims should be placed at the centre of state-funded financial assistance and how this relates to alleged perpetrator notification and appearance provisions.

Effects on victim safety and wellbeing

6.57 Stakeholder views described above confirm the potential for the VOCAA’s alleged perpetrator notification and appearance provisions to cause victims distress and reduce the therapeutic aspects of the financial assistance process. Case studies provided to the Commission in written submissions give voice to victims who have experienced the alleged perpetrator notification and appearance process, demonstrating not only safety, health and wellbeing concerns, but confusion and in some cases, panic about the process.^[76]

6.58 Stakeholder concerns about alleged perpetrator notification and appearance mirror findings of previous reviews and research.

6.59 As noted in the then-Department of Justice discussion paper on state-funded financial assistance: ‘some victims find a tribunal hearing distressing or traumatising, particularly in the rare event that the alleged perpetrator is notified and attends’.^[77]

6.60 In its submission to the Victorian Royal Commission into Family Violence (the Royal Commission), the Women’s Legal Service identified VOCAT’s discretion to notify an alleged perpetrator and invite their participation in the proceedings as a significant issue for family violence victims^[78] because of its potential to re-traumatise victims.^[79] The Magistrates’ Court of Victoria and Children’s Court of Victoria also highlighted in its submission to the Royal Commission that alleged perpetrator notification is a concern due to ‘the safety risks that commonly arise in applications involving family violence’.^[80]

6.61 The Royal Commission noted in its final report that although VOCAT indicates on its website that notification of alleged perpetrators ‘rarely occurs’, the Royal Commission had ‘heard, however, of situations where the tribunal intended to contact the perpetrator and/or invited them to participate in the proceedings. This can re-traumatise victims’.^[81]

6.62 In its 2011 discussion paper in relation to VOCAT, Whittlesea Community Legal Service stated:

Legal practitioners consulted for this research nominated potential notification of the alleged offender by the Tribunal and the distress this causes to the victim as a barrier to victims accessing compensation from VOCAT.^[82]

6.63 Whittlesea Community Legal Service also found that 40 per cent of legal practitioners surveyed for that project had represented a client in a matter where the alleged offender was notified of the hearing, noting that:

All legal practitioners who had dealt with matters where the offender was notified reported that notification of the offender had a negative impact on the victim and usually caused distress to the victim. In some cases, it was reported that notification of the offender actively discouraged the victim from continuing with the application.^[83]

6.64 Women’s Legal Service Victoria’s Rebuilding Strength—VOCAT Project found that 77 per cent of surveyed legal practitioners had experienced VOCAT informing them that they intended to notify the alleged perpetrator in a particular case. Sixty-seven per cent of surveyed legal practitioners had also experienced unsuccessful objections to alleged perpetrator notification.^[84] Legal practitioners in that project also cited perpetrator notification as a common consequence of a victim having not reported a matter to police, with one participant stating:

If [VOCAT] accepts the reasons for failure to report/make a statement/assist the police and it will allow the application to proceed, it will probably want to notify the alleged offender of the application to give [the alleged offender] an opportunity to oppose it.^[85]

6.65 This finding corresponds with stakeholder concerns outlined above that the alleged perpetrator notification and appearance provisions might adversely impact vulnerable or marginalised victims.

6.66 VOCAT’s review of its pilot Koori VOCAT list also noted the differing effects of alleged perpetrator notification depending on an applicant’s cultural context.^[86] It was noted in that report that ‘the interrelatedness of many Koori communities … [means] that notification to the alleged offender can be perceived as notification to the entire community’.^[87]

6.67 The Commission is concerned by evidence suggesting that the alleged perpetrator notification and appearance provisions may disadvantage already marginalised or vulnerable victims of crime. This includes victims of crime with low reporting rates, victims who may fear reporting crimes to police, crimes where the alleged perpetrator is known to the victim and victims from culturally diverse communities, including Aboriginal victims of crime for whom the interconnectedness of their community may result in more adverse consequences. In the Commission’s view, there is a high likelihood of further intersectional disadvantage where victims’ circumstances include a number of these factors, such as a victim of sexual assault occurring in the context of family violence.

6.68 In the Commission’s view, stakeholder responses and relevant research outlined above indicate that the alleged perpetrator notification and appearance provisions have profound impacts on victims—in some cases, even preventing victims from applying to VOCAT at all.

Can the effects of alleged perpetrator notification be ameliorated through legislative protections?

6.69 Some stakeholders suggested legislative limitations to the alleged perpetrator notification and appearance provisions, and increased safety mechanisms for victims appearing at a VOCAT hearing, might reduce the potential for alleged perpetrator notification and appearance to cause harm to victims.

6.70 In the Commission’s view, legislative and procedural protections would undoubtedly assist those who proceed with an application for state-funded financial assistance.

6.71 However, the Commission is concerned that even if strengthened safety mechanisms were legislatively enshrined, evidence suggests it is the mere idea, or possibility, of alleged perpetrator notification or appearance that can prevent victims from applying for assistance.

6.72 In the Commission’s view, stakeholder submissions and the findings of relevant research and review reports confirm that the current provisions of the VOCAA act as a significant deterrent to prospective applicants to VOCAT. In this context, the Commission is not convinced that procedural or legislative protections will greatly assist victims who are too scared to even proceed with an application because of the chance of perpetrator notification, however slight the actual occurrence of such notification might be.

6.73 Given the significant repercussions of these provisions, and the fact it is unlikely that legislative protections can ameliorate their deterrent effect, in the Commission’s view there must be a compelling case for alleged perpetrator notification to be retained. Accordingly, the next part of this chapter considers whether alleged perpetrators should have a right to be notified and heard in relation to an application for state-funded financial assistance, noting the significant impacts of such provisions, and the Commission’s view that legislative protections are unlikely to ameliorate these negative effects.

Should alleged perpetrators have a right to be notified and heard in relation to an application for state-funded financial assistance?

Balancing the interests of victims, the state and the rights of alleged perpetrators

6.74 In introducing the Victims of Crime Assistance Act 1996 (Vic) to Parliament, the then Attorney-General, the Hon. Jan Wade MP stated in her Second Reading Speech that the ‘bill, together with the proposed scheme, will address the needs of victims of violent crimes while at the same time achieving an appropriate balance between the interests of victims and the state and the rights of offenders’.^[88] The Commission notes, however, that there is some ambiguity about how the provisions of the VOCAA achieve such a balance—and precisely which provisions of the VOCAA are intended to do this. The VOCAA contains no express provision clarifying the application of sections 34 and 35 of the VOCAA to alleged perpetrators. VOCAT has issued a Practice Direction in relation to the notification of alleged perpetrators.^[89]

6.75 As noted in Chapter 4, the past decade has seen an increased focus on the needs and rights of victims of crime in Victoria.^[90] As the Commission acknowledged in its 2016 information paper in relation to its review of the role of victims of crime in the criminal trial process:

the landscape has changed dramatically for victims of crime. The welfare of victims is now a central concern to governments, as reflected in the enactment of victims’ rights charters, victims’ compensation schemes and victim support services.^[91]

6.76 These policy changes have resulted from an increased understanding of how criminal justice processes can adversely impact victims of crime and the need to protect victims, as far as practical, from processes that serve to intimidate, distress or otherwise traumatise victims throughout the justice process.

6.77 As a result of contemporary understandings of victims’ needs and rights, in the Commission’s view, if a new state-funded financial assistance Act was introduced today, it would likely ‘balance’ victim and offender rights much differently than in 1996. For example, the Victims of Crime Assistance Act 1996 (Vic) predates the Victims’ Charter Act 2006 (Vic) which sets out principles for how Victoria’s criminal justice system and victim service agencies should respond to victims of crime^[92] as well as a number of other significant legislative reforms aimed at improving the justice process for victims of crime.

6.78 The Commission notes that even in its current form, the VOCAA provisions do not provide alleged perpetrators with an absolute right to be notified or heard. VOCAT has significant discretion to determine whether or not to give notice of a hearing, and whether someone has a ‘legitimate interest’ in a matter.^[93] VOCAT also has significant discretion in determining whether someone has a ‘substantial interest’ in a hearing.^[94] As noted in AB v Victims of Crime Assistance Tribunal and Ors,^[95] the VOCAA ‘does not enshrine the concept of a fair trial of a person alleged to have committed the criminal act’, confirming than an alleged perpetrator does not have an absolute right to defend themselves.^[96]

6.79 As also noted by a number of stakeholders, and discussed above, the existing provisions of VOCAA therefore elevate victims’ safety and wellbeing above notions of procedural fairness for an alleged perpetrator.

6.80 Approaches in other jurisdictions demonstrate that alleged perpetrator notification and appearance is not considered an automatic right in the context of similar state-funded financial assistance schemes. There are also differing approaches to perpetrator notification, noting the majority of other Australian jurisdictions have administrative models of assistance without hearings therefore appearance of the offender may not be relevant to all schemes.

6.81 In some Australian jurisdictions, notification provisions relate only to whether the scheme is pursuing offender contribution and in these circumstances, only apply where a person has been convicted of an offence relating to the financial assistance determination.^[97] For example, in New South Wales, the Commissioner may make a provisional order for restitution against the person convicted of the relevant offence the subject of the application and must serve notice of the provisional order setting out the terms of the order and include a statement of the grounds on which the order was made.^[98] The NSW Victims Services application form for primary victims states: ‘In general the material in our possession is not released to other people. However, information may need to be made available to the offender if restitution action is taken to recover the money awarded’.^[99]

6.82 On the other hand, section 18(4)(c) of the Victims of Crime Act 2001 (SA) requires a copy of an application for financial assistance to be served on the offender unless the identity of the offender is unknown or the whereabouts of the offender are unknown or cannot be readily obtained.^[100] Section 19 (1)(b) of the Criminal Injuries Compensation Act 2003 (WA) enables (but does not compel) the assessor to give written notice of the application and any amendment to it to an interested person.

6.83 Professor Robert Guthrie, an assessor under Western Australia’s Criminal Injuries Compensation scheme, observed in 2017 that the Western Australian provisions are directly tied to the provisions in the Western Australian Act that relate to the State’s right to seek recovery from convicted offenders. Professor Guthrie observed:

It is not uncommon for the applicant or his or her representatives to make submissions that the offender not be notified of the application because of the propensity to cause fear or harm or reprisals against the applicant and/or the applicant’s family. Where the Assessor chooses not to issue notification to the offender, the assessor will also usually order that the State has not right to recover against the offender. A decision to notify or not therefore requires the Assessor to balance the right to the State to seek recovery against the potential for further harm to be inflicted upon the applicant.^[101]

6.84 Various jurisdictions approach alleged perpetrator notification and appearance differently, including amongst jurisdictions with similar administrative models such as Western Australia and New South Wales. This suggests that alleged perpetrator notification and appearance is not considered an automatic right in the context of similar state-funded financial assistance schemes. Accordingly, alleged perpetrator notification must be considered holistically, including in relation to how notification provisions intersect with provisions relating not only to offender recovery, but provisions that prioritise victim safety and wellbeing.

What are the interests for the state in having alleged perpetrator notification and appearance provisions?

6.85 There is some evidence to suggest that perpetrator notification and appearance provisions can assist decision makers to determine whether a criminal act has occurred and thus, may go to an applicant’s eligibility for state-funded financial assistance. This is particularly the case where a matter has not proceeded through the criminal justice system.

6.86 As illustrated in the case of BFK v Victims of Crime Assistance Tribunal^[102] discussed above (noting the relevant hearing for the purposes of perpetrator appearance was the VCAT hearing), the alleged perpetrator (YVP) was given ‘the opportunity to put his view in this proceeding … he responded by way of written statement denying the allegation, referring to their consensual sexual relationship’.^[103]

6.87 In that case, YVP attended the VCAT hearing, gave evidence, and was cross-examined by BFK’s and VOCAT’s lawyers.^[104] In affirming VOCAT’s decision not to allow an out of time application, VCAT referenced YVP’s oral evidence at the VCAT hearing, which VCAT determined was ‘largely consistent and not weakened during cross-examination’.^[105]

6.88 While such evidence and testimony is undoubtedly helpful during the decision-making process, in the Commission’s view, such assistance comes at a cost to the victim. This is because where an alleged perpetrator is notified, and attends a hearing, such hearings may closely resemble criminal trials. As noted by RMIT Centre for Innovative Justice, some victims ‘have experienced the VOCAT process as akin to other court processes in which they felt their own behaviour, not the perpetrator’s, was on trial; in which their experience has been belittled, disbelieved or dismissed’.^[106]

6.89 In the Commission’s view, the assistance provided to a decision maker by having the alleged perpetrator provide evidence (whether by written submission or at a hearing) may undermine the beneficial approach of state-funded financial assistance.

6.90 The standard of proof that applies under the VOCAA is ‘on the balance of probabilities’.^[107] This is a lower standard of proof than ‘beyond reasonable doubt’, which is used in criminal matters. In the Commission’s view, if there is sufficient evidence to determine eligibility, according to the requisite standard of proof, such a finding should be made regardless of whether an alleged perpetrator has been given a right to be heard on the matter.

6.91 In the Commission’s view, it is vital that state-funded financial assistance continue to provide an alternative pathway for victims whose matter, for whatever reason, cannot proceed through the criminal justice system. It is important that state-funded financial assistance remains separate to the criminal justice system, particularly given there are cases where the criminal standard or proof cannot be met, but there is a genuine need for victim assistance. In the Commission’s view, although perpetrator notification and appearance may assist a decision maker to determine eligibility, the Commission considers that state-funded financial assistance processes should not resemble a criminal trial where applicants and alleged offenders are required to give evidence and be cross-examined by legal counsel.

What are the interests of the alleged offender?

6.92 The Commission acknowledges some stakeholder concerns that alleged perpetrators may have an ‘interest’ in a state-funded financial assistance matter. ^[108] The Commission also notes that many stakeholders also submitted that alleged perpetrators did not have an interest in a state-funded financial assistance process because it has no bearing on any other legal matter.

6.93 A finding that the victim is a victim of a crime (and has suffered consequent injury) does not constitute directly or by implication a finding that an alleged perpetrator is guilty of the crime. A finding of guilt is a wholly separate matter. It occurs, if it occurs, in a court of law, not in VOCAT. It is a misconception to assert that a finding of a crime for the purposes of providing a victim with state-funded financial assistance involves a finding of guilt being made against an alleged perpetrator.

6.94 Although a finding that the victim is a victim of a crime (and has suffered consequent injury) does not constitute a finding that an alleged perpetrator is guilty of the crime, the Commission accepts that some individuals may wrongfully interpret such a finding as a finding of guilt. This would be a wrongful attribution of guilt as no such finding of guilt has been made by a criminal court. Nonetheless, the Commission accepts that where this occurs, it may have an impact on an alleged perpetrator.

6.95 However, any impact caused by a misinterpretation of a process separate to the criminal legal process does not create a legal interest for an alleged perpetrator in relation to an application for the award of state-funded financial assistance to a victim of crime. The Commission considers that given the nature of decisions made in relation to state-funded financial assistance, whereby there is not a finding of guilt or innocence in relation to an alleged perpetrator, any interest an alleged perpetrator may have in such matters is better categorised as a reputational interest. This is not to say that such reputational interests are insignificant, or that findings in relation to a victim’s application for state-funded financial assistance have no impact on alleged perpetrators. In particular, the Commission is mindful that alleged perpetrators are likely to have a keen interest in how information relating to a decision of a state-funded financial assistance scheme might be used, including whether such information might be published. Given the speed and spread of current publication channels, including social media platforms, the Commission appreciates that these are not insignificant concerns. Accordingly, in Chapter 14, the Commission makes recommendations in relation to non-publication provisions that would protect the privacy and identity of an alleged perpetrator the subject of a decision made by the proposed scheme.

6.96 In the Commission’s view, these recommendations would protect the privacy, confidentiality and identity of an alleged perpetrator and therefore, would be key to mitigating any potential adverse effects as a result of an alleged perpetrator being unable to be heard in relation to a state-funded financial assistance application.

6.97 Although, as noted above, some other jurisdictions’ state-funded financial assistance schemes have perpetrator notification provisions as a part of an offender recovery process—whereby the relevant state-funded financial assistance scheme seeks to recover from a convicted offender the costs associated with an award—Victoria does not have such a recovery process.^[109]

6.98 As discussed in Chapter 18, Victoria’s approach to offender contribution under the VOCAA differs to approaches in other jurisdictions. Section 51(1) of the VOCAA enables a victim to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates. In some other jurisdictions, the state has an express right to recover directly from an offender and to seek enforcement of that debt as a statutory debt against the state. Accordingly, and as also discussed in Chapter 18, perpetrator notification is not required under the VOCAA because of any association with offender recovery.

Placing victims at the centre of state-funded financial assistance

6.99 Given stakeholder submissions, and previous research reports discussed above, the Commission agrees with stakeholder concerns that alleged perpetrator notification and appearance provisions are counter-productive to a victim’s recovery process. Furthermore, the Commission agrees that such provisions can result in victims electing not to pursue a VOCAT application or withdrawing their application because of the potential for alleged perpetrator notification.

6.100 In the Commission’s view, the fact that the alleged perpetrator notification and appearance provisions can act as such a severe deterrent to victims applying to the scheme fundamentally contradicts the beneficial nature of a state-funded financial assistance scheme—the primary purpose of which is to assist victims to recover from crime.

6.101 In the Commission’s view, such provisions prioritise procedural and evidentiary processes over victims’ needs and increase the adversarial nature of financial assistance matters. The result of VOCAT determining that a person is entitled to appear and be heard by VOCAT is that such persons become a party to the matter^[110] and VOCAT must give a party to the matter a reasonable opportunity to call or give evidence, examine, cross-examine or re-examine witnesses and make submissions to VOCAT.^[111] The case of BFK v Victims of Crime Assistance Tribunal,^[112] discussed above illustrates the extent to which VOCAT hearings might closely resemble criminal trials, with both applicants and alleged perpetrators being legally represented, called to give evidence and cross examined at hearings before a judicial officer.

6.102 As noted in AB v Victims of Crime Assistance Tribunal, ‘The duty to act fairly — and the parameters of the obligation to provide an alleged perpetrator with a reasonable opportunity to call evidence— must be considered in the context of the statutory scheme’.^[113] The context of this statutory scheme is that it is a scheme established to assist victims of crime to recover from a criminal act. It is not a scheme that makes determinations about the guilt or innocence of an alleged offender.

6.103 Given the significant effects on victims, and evidence suggesting such effects are unlikely to be ameliorated by legislative protections, the Commission considers that it is not appropriate for a victims of crime assistance scheme to provide for alleged perpetrator notification or for the opportunity for an alleged perpetrator to be heard in relation to a victim’s application for state-funded financial assistance to assist with their recovery from the criminal act.

6.104 The Commission acknowledges that this represents a significant shift from the current VOCAA provisions and the current practice of alleged perpetrators being perceived as individuals who might have a ‘legitimate’ or ‘substantial’ interest in a VOCAT matter or hearing. The Commission also acknowledges that although an alleged perpetrator may not be categorised as having a legal interest in a state-funded financial assistance matter, it does not mean that any decisions made in such a process do not impact on an alleged perpetrator. However, in the Commission’s view, concerns regarding how a state-funded financial assistance matter might impact an alleged perpetrator’s interests can be managed through other protections identified in this report, including recommendations relating to non-publication to protect the privacy and identity of an alleged perpetrator the subject of a decision made by the proposed scheme.

6.105 As will be discussed in Chapter 12, a victim’s eligibility for the proposed scheme does not rest on a finding of guilt to the criminal standard of proof about an alleged perpetrator. This is a matter for a criminal court. In the Commission’s view this, combined with non-publication protections, mitigates against the need for an alleged perpetrator to be heard on the matter.

6.106 In the Commission’s view, removing perpetrator notification reflects a trauma-informed approach that prioritises victims’ safety and wellbeing.

6.107 Regardless of model, or other technical and procedural reforms implemented, the Commission considers this to be a significant step in prioritising victims’ safety and wellbeing needs and placing victims’ needs at the centre of the state-funded financial assistance process.

1. Victims of Crime Assistance Act 1996 (Vic) s 34(2).

   ↑

2. Ibid s 35(1).

   ↑

3. The Commission notes that VOCAT uses the term ‘alleged offenders’. See, eg, Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties, 11 December 2008.

   ↑

4. Victims of Crime Assistance Act 1996 (Vic) s 34(2).

   ↑

5. Ibid s 35(1).

   ↑

6. Ibid s 35(4).

   ↑

7. Ibid s 38(1)(c).

   ↑

8. Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties, 11 December 2008.

   ↑

9. Ibid 1–2.

   ↑

10. Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria and Children’s Court of Victoria). Note that this is in contrast with the other stakeholders who submitted that alleged perpetrator notification is a common occurrence. See, eg, Submission 7 (Dr Kate Seear et al).

    ↑

11. [2015] VSC 245 (5 June 2015).

    ↑

12. Ibid [24].

    ↑

13. Ibid [27].

    ↑

14. Kioa v West (1985) 159 CLR 550.

    ↑

15. AB v Victims of Crime Assistance Tribunal [2015] VSC 245 [40] citing Justice Mason in Kioa v West (1985) 159 CLR 550, in which the court stated that ‘the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations’ at [583]–[584].

    ↑

16. P v Crimes Compensation Tribunal [1997] 2 VR 63.

    ↑

17. Section 7 of the former Criminal Injuries Compensation Act 1983 (Vic) provided that ‘Where the Tribunal considers it appropriate, notification of the making of an application shall be given by the Tribunal to any person who, in the opinion of the Tribunal, has or may have an interest in the determination of the application’. Under section 11(b) of the Criminal Injuries Compensation Act 1983 (Vic), ‘any other person who, in the Tribunal’s opinion, has a substantial interest in the proceedings is entitled to appear and be heard by the Tribunal in person, or to be represented by a barrister, a solicitor, or by such other person as the Tribunal considers appropriate’.

    ↑

18. P v Crimes Compensation Tribunal [1997] 2 VR 63, 66.

    ↑

19. Ibid, 67.

    ↑

20. Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties, 11 December 2008.

    ↑

21. P v Crimes Compensation Tribunal [1997] 2 VR 63, 67.

    ↑

22. As discussed below in stakeholder responses, the submission of VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria states: ‘In weighing up whether or not an alleged perpetrator should be notified, the Tribunal Member considers a range of factors, including any safety concerns expressed by the applicant. However, the Act provides no guidance whatsoever about the factors to be considered when deciding whether or not to notify an alleged offender’: Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria, The Children’s Court of Victoria).

    ↑

23. Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 25.

    ↑

24. [2017] VCAT 289 (15 March 2017).

    ↑

25. Ibid.

    ↑

26. Ibid [102].

    ↑

27. Ibid [105]–[106]. YVP gave evidence at the hearing ‘in response to a witness summons issued by VCAT at BFK’s request’: ibid [20]. The Commission further notes that both BFK and YVP gave evidence via a remote witness facility so they were not required to see each other in person: ibid [21].

    ↑

28. Ibid.

    ↑

29. Ibid [136].

    ↑

30. Submissions 8 (Victim Survivors’ Advisory Council), 10 (Eastern Metropolitan Regional Family Violence Partnership), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 17 (Centre for Excellence in Child and Family Welfare), 20 (Office of the Victorian Information Commissioner), 26 (Hume Riverina Community Legal Service), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 31 (Victorian Council of Social Service), 33 (Eastern Community Legal Centre), 37 (safe steps Family Violence Response Centre), 39 (Victorian Aboriginal Legal Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 46 (Victoria Legal Aid); Consultations 2 (Legal Professionals – Private Practice), 3 (Legal Professionals – Community Legal Centres), 4 (Victim, Witness and Court Support), 9 (Domestic Violence Victoria Members), 12 (Regional Consultation – Mildura Victim Support Agencies), 13 (Regional Consultation – Mildura Legal Professionals),
    
    14 (Chief Magistrates’ Family Violence Taskforce), 16 (Regional Consultation – Ballarat Legal Professionals), 19 (RMIT Centre for
    
    Innovative Justice).

    ↑

31. Submission 14 (Inner Melbourne Community Legal).

    ↑

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

    ↑

33. Ibid.

    ↑

34. Ibid.

    ↑

35. Submissions 37 (Safe Steps Family Violence Response Centre), 46 (Victoria Legal Aid), 49 (Victims of Crime Commissioner, Victoria).

    ↑

36. Submissions 46 (Victoria Legal Aid), 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria, The Children’s Court of Victoria).

    ↑

37. Submissions 31 (Victorian Council of Social Service), 33 (Eastern Community Legal Centre), 37 (Safe Steps Family Violence Response Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 46 (Victoria Legal Aid); Consultations 3 (Legal Professionals – Community Legal Centres), 17 (Family Violence Diverse Communities and Intersectionality Working Group).

    ↑

38. Consultation 3 (Legal Professionals – Community Legal Centres).

    ↑

39. Submission 46 (Victoria Legal Aid).

    ↑

40. Ibid.

    ↑

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

    ↑

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

    ↑

43. Submissions 14 (Inner Melbourne Community Legal), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (CASA Forum).

    ↑

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

    ↑

45. Consultation 13 (Regional Consultation – Mildura Legal Professionals).

    ↑

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

    ↑

47. Submissions 7 (Dr Kate Seear et al), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 16 (Project Respect), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 32 (Australian Psychological Society), 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service), 49 (Victims of Crime Commissioner, Victoria); Consultation 3 (Legal Professionals – Community Legal Centres).

    ↑

48. Submissions 14 (Inner Melbourne Community Legal), 20 (Office of the Victorian Information Commissioner), 26 (Hume Riverina Community Legal Service), 27 (Name withheld), 38 (Ryan Carlisle Thomas Lawyers), 46 (Victoria Legal Aid); Consultations 3 (Legal Professionals—Community Legal Centres), 13 (Regional Consultation—Mildura Legal Professionals).

    ↑

49. Submission 26 (Hume Riverina Community Legal Service); Consultation 3 (Legal Professionals—Community Legal Centres).

    ↑

50. Submissions 14 (Inner Melbourne Community Legal), 18 (cohealth).

    ↑

51. Submission 46 (Victoria Legal Aid), Submission 59 (Victims of Crime Assistance Tribunal, Magistrates’ Court of Victoria, The Children’s Court of Victoria).

    ↑

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

    ↑

53. Submission 41 (Springvale Monash Legal Service).

    ↑

54. Submission 14 (Inner Melbourne Community Legal).

    ↑

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

    ↑

56. Submissions 5 (Anglicare Victoria Victims Assistance Program), 38 (Ryan Carlisle Thomas Lawyers); Consultation 15 (Regional Consultation – Ballarat Victim Support Agencies).

    ↑

57. Submission 38 (Ryan Carlisle Thomas Lawyers).

    ↑

58. Consultation 16 (Regional Consultation – Ballarat Legal Professionals).

    ↑

59. Consultation 20 (Academics)

    ↑

60. Consultations 10 (Regional Consultation – Morwell Victim Support Agencies), 15 (Regional Consultation – Ballarat Victim Support Agencies).

    ↑

61. Submission 41 (Springvale Monash Legal Service).

    ↑

62. [2015] VSC 245 (5 June 2015).

    ↑

63. Submission 41 (Springvale Monash Legal Service) referring to AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015).

    ↑

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

    ↑

65. Submissions 39 (Victorian Aboriginal Legal Service), 41 (Springvale Monash Legal Service).

    ↑

66. Submission 39 (Victorian Aboriginal Legal Service).

    ↑

67. Submission 14 (Inner Melbourne Community Legal).

    ↑

68. Ibid.

    ↑

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

    ↑

70. Submission 46 (Victoria Legal Aid).

    ↑

71. Consultation 16 (Regional Consultation – Ballarat Legal Professionals).

    ↑

72. As discussed in Chapter 4, VOCAT is not bound by the rules of evidence: Victims of Crime Assistance Act 1996 (Vic) s 38(1)(b).

    ↑

73. Submission 7 (Dr Kate Seear et al). In this submission, Kate Seear et al are referencing the VOCAA’s requirement that VOCAT consider the character and behaviour of an applicant in determining whether to make an award, or in determining the amount of an award. The Commission considers relevant character and behaviour considerations under section 52 and 54 of the VOCAA in chapter 15.

    ↑

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

    ↑

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

    ↑

76. See, eg, Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 37 (safe steps Family Violence Response Centre).

    ↑

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

    ↑

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

    ↑

79. Ibid. See also Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 80.

    ↑

80. 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 and 60.

    ↑

81. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 80.

    ↑

82. Whittlesea Community Legal Service, Victims of Crime Assistance Tribunal Capacity Building Project, Discussion Paper (Whittlesea Community Connections, 2011) 84.

    ↑

83. Ibid.

    ↑

84. Women’s Legal Service Victoria, Rebuilding Strength—VOCAT Project: Practitioner Survey Preliminary Results (2017) (unpublished) 7.

    ↑

85. Ibid 4.

    ↑

86. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot: Review and Recommendations (2010) 26.

    ↑

87. Ibid.

    ↑

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

    ↑

89. See Victims of Crime Assistance Tribunal, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties
    
    11 December 2008.

    ↑

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

    ↑

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

    ↑

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

    ↑

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

    ↑

94. Ibid s 35(1)

    ↑

95. [2015] VSC 245 (5 June 2015).

    ↑

96. Ibid [24].

    ↑

97. See, eg, Victims of Crime Assistance Act 2009 (Qld) ss 109–116; Victims of Crime (Financial Assistance) Act 2016 (ACT) ss 71–74; Victims Rights and Support Act 2013 ss 59–61.

    ↑

98. Victims Rights and Support Act 2013 ss 59–61.

    ↑

99. Victims Services (NSW), Application: Support for Primary Victims, Brochure (2017) 2.

    ↑

100. Victims of Crime Act 2001 (SA) s 18(4)(c).

     ↑

101. Robert Guthrie, ‘Criminal Injuries Compensation for Victims of Family and Domestic Violence’ (Paper Presented at John Curtin Institute of Public Policy Seminar, 19 May 2017) 10.

     ↑

102. [2017] VCAT 289 (15 March 2017).

     ↑

103. Ibid [102].

     ↑

104. Ibid [105]–[106]. YVP gave evidence at the hearing ‘in response to a witness summons issued by VCAT at BFK’s request’: ibid [20]. The Commission further notes that both BFK and YVP gave evidence via a remote witness facility so they were not required to see each other in person: Ibid [21].

     ↑

105. Ibid [136].

     ↑

106. Submission 47 (Centre for Innovative Justice).

     ↑

107. Victims of Crime Assistance Act 1996 (Vic) s 31.

     ↑

108. Submissions 5 (Anglicare Victoria Victims Assistance Program), 38 (Ryan Carlisle Thomas Lawyers); Consultations 15 (Regional Consultation – Ballarat Victim Support Agencies), 16 (Regional Consultation – Ballarat Legal Professionals), 20 (Academics).

     ↑

109. For the Victorian recovery process, in which the victim assigns his or her rights to the state, see Victims of Crime Assistance Act 1996 (Vic)
     
     s 51.

     ↑

110. Victims of Crime Assistance Act 1996 (Vic) s 35(4).

     ↑

111. Ibid s 38(1)(c).

     ↑

112. [2017] VCAT 289 (15 March 2017).

     ↑

113. [2015] VSC 245 (5 June 2015) [27].

     ↑