Victims of Crime Assistance Act 1996: Report (html)

8. Models of state-funded financial assistance for victims of crime

Introduction

8.1 In Chapter 7, the Commission concluded that the existing scheme, as provided for by the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) and the Victims of Crime Assistance Tribunal (VOCAT), does not meet the objectives articulated in the supplementary terms of reference.

8.2 Therefore, this chapter considers whether there are other models of state-funded financial assistance, including a reformed judicial model, which may better meet the reference objectives and deliver assistance to victims of crime more effectively.

8.3 In response to submissions, and the matters raised in the consultation papers, the Commission considers there are two options for reform:^[1]

• a reformed judicial model, as proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria in their joint submission.^[2]

• an administrative model, including options proposed by stakeholders and models in operation in other Australian jurisdictions.

8.4 This chapter begins with a discussion of the importance of validation for victims of crime, as a basis for the discussion of models of state-funded financial assistance.

8.5 The chapter then provides an overview of the two options for reform followed by an assessment of each option against the reference objectives.

8.6 As discussed further below, the Commission acknowledges that the existing scheme can be reformed to better meet victims’ needs, and that VOCAT and the Magistrates’ Court of Victoria are willing to undertake such reforms. However, in accordance with the supplementary terms of reference, the Commission has been asked to consider which model ‘would more effectively deliver assistance’.^[3] This question therefore requires the Commission to make an assessment of the effectiveness of other possible models and determine which model would be the most effective for both victims and the state, regardless of the extent to which the existing scheme can be improved.

8.7 Just as Chapter 7 assessed the existing scheme according to the objectives identified in the supplementary terms of reference, this chapter assesses the two identified reform options according to the same objectives:

• fair and equitable

• timely

• consistent and predictable

• maximise therapeutic effect

• minimise trauma

• simple and easy to understand

• not requiring legal support in all circumstances

• efficient and sustainable for the state.

The importance of validation

8.8 As discussed in Chapter 7, many stakeholders said that victims’ needs extend beyond financial, therapeutic or practical support. In particular, stakeholders said that victims often need acknowledgment^[4] and validation of their experience as victims of crime.^[5]

8.9 This part of the chapter discusses the importance of validation for victims of crime and the importance of victims being acknowledged and heard, including by judicial officers and other non-judicial decision makers.

Validation from judicial officers

8.10 For some stakeholders, the validation of victims’ experiences is directly tied to such validation being provided by a judicial officer. For example, a significant number of stakeholders said that acknowledgment at a hearing by a judicial officer maximises therapeutic effect,^[6] particularly where a criminal matter has not progressed.^[7] A number of stakeholders noted the powerful nature of judicial validation.^[8] In this context, a number of stakeholders told the Commission that being heard and acknowledged by a judicial officer was ‘empowering’^[9] or ‘therapeutic’.^[10]

8.11 Some stakeholders submitted that hearings in front of a compassionate Magistrate can be of enormous benefit.^[11] Some legal professionals told the Commission that judicial recognition of a victim’s story was therapeutic^[12] and was sometimes worth more than any amount of money.^[13]

8.12 Similarly, some support workers told the Commission that it can be very powerful for victims to have a magistrate acknowledge them as a victim.^[14] CASA Forum submitted:

An empathetic Magistrate has the opportunity to provide [victims] with an acknowledgement of the injury they have sustained. Magistrates have been known to say “I have no doubt that this happened to you and the State will provide you with the following assistance to help you recover”.^[15]

8.13 The importance of judicial acknowledgment was also raised by a victim representative of the Victims of Crime Consultative Committee, who told the Commission about the powerful nature of a magistrate hearing her and saying ‘yes’ to her financial assistance needs at a VOCAT hearing.^[16]

8.14 The submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria of Victoria also noted the importance of victims having the opportunity to be heard by a judicial officer:

The [current VOCAT approach] embodies one of the most important components of a therapeutic approach—the option for victims to have a hearing before a Tribunal Member … for some victims, their recovery journey includes having their ‘day in Court’, to have their experience formally acknowledged and to have their story believed.^[17]

8.15 A representative of the Anglicare Victoria Victims Assistance Program submitted that some victims feel ‘listened to’ and that they have ‘received justice’ when the decision is made by a judicial officer.^[18]

8.16 On the other hand, the Commission has also been told by other stakeholders that judicial decision making establishes an adversarial process for victims^[19] and, contrary to the above views, can make some victims ‘feel like a criminal’ and that they must ‘prove themselves’.^[20] For example, one victim support worker submitted that ‘the hearing process itself is usually a traumatic, intimidating or distressing event for a victim’.^[21] Some stakeholders told the Commission that acknowledgment could be provided for by other decision makers. This is discussed further below.

Validation from non-judicial decision makers

8.17 While many stakeholders told the Commission that validation was best provided through judicial officers as decision makers, other stakeholders said that acknowledgment did not necessarily have to come from a magistrate but could also come from other senior government officials.^[22]

8.18 Some stakeholders said that acknowledgment could come from senior government officials,^[23] administrators, panels or commissioners,^[24] provided it was from a person with standing^[25] and authority.^[26] The Commission was told that it did not matter who provided acknowledgment or validation to victims, so long as it occurred in a meaningful and respectful way.^[27]

8.19 The Commission was told that if a non-judicial decision maker was used, they would have to have some ‘status’ or ‘power’ to acknowledge the crime on behalf of the state.^[28]

Overview of possible models

A reformed judicial model—VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposal

8.20 Before considering alternative models of state-funded financial assistance, as required by the supplementary terms of reference, the Commission first considers whether the existing scheme can be reformed to meet the identified objectives. This recognises the practical experience of VOCAT, the scheme’s existing structure and infrastructure and

VOCAT’s experience in delivering a state-funded financial assistance scheme for over

20 years.

8.21 This also acknowledges the views of a number of stakeholders who support the retention of the existing scheme, albeit with some technical, procedural or structural reforms.^[29]

8.22 The joint submission prepared by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria provides a detailed vision for a reformed judicial model whose key components are summarised below.^[30]

A ‘quasi-judicial’ model

8.23 Key to the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria is the retention of what is described as a ‘quasi-judicial’ or hybrid model. This includes the ability for some decisions to be made quickly through an administrative process, reserving judicial decision making and discretion for more complex cases.^[31]

8.24 It was submitted to the Commission that this model incorporates both the safeguard of retaining magistrates’ discretion to consider more complex applications and to review decisions, while increasing timeliness for more simple decisions which, as outlined below, would be made by registrars.^[32]

Three-tiered decision making

8.25 In support of the quasi-judicial model, the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposes three-tiered decision making, with decisions made as follows:^[33]

• magistrates determining complex matters or matters where the victim requests a judicial hearing

• judicial registrars making less complex decisions^[34]

• assessing registrars processing straightforward applications.

8.26 Under this model, it is proposed that magistrates would focus on the most complex applications such as homicides, family violence, sexual assault and applications involving child victims.^[35]

8.27 It was submitted to the Commission that under this model, delegation powers should be increased to enable judicial registrars to manage all but the most complex of matters, with a third tier of decision makers—assessing registrars—to make simple administrative decisions, retaining the safeguard of magistrates’ discretion to review.^[36]

Specialisation

8.28 The joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also proposes a specialised model.^[37] It was proposed to the Commission that such specialisation would provide VOCAT with the capacity to simultaneously improve VOCAT’s therapeutic outcomes and consistency in decision making, as well as yield cost savings and efficiency gains.^[38]

8.29 It was also proposed that this specialisation include a smaller pool of dedicated VOCAT magistrates supported by specialised judicial registrars and administrative staff. Further specialisation is also proposed, such as specialisation in family violence to enhance integration with specialist family violence courts.^[39]

8.30 The joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria also noted the VOCAT’s Koori List as a best practice example of a tailored process. It was submitted to the Commission that this specialisation is highly applicable and transferable to VOCAT’s operation more broadly, and would likely also be of benefit to other victim groups.^[40]

Centralised ‘hub and spoke’ model

8.31 VOCAT currently operates across 51 court locations. The joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria proposes that the decentralised structure of VOCAT be transformed to a central registry to form a ‘hub’ to provide a single entry point for managing and triaging VOCAT applications, with ‘spokes’ used in regional areas through local Magistrates’ Courts to enable victims to access local VOCAT support where required.^[41]

8.32 Where a hearing is requested or required, it is proposed that specialist VOCAT magistrates could conduct hearings in person via a circuit court, or remotely from the ‘hub’ through digital and audiovisual online service channels.^[42]

Triaging and case management of applications

8.33 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the ‘hub and spoke’ model would provide for case management of applications to enable improved accessibility, predictability and consistency, and reduce reliance on lawyers to navigate the system.^[43]

8.34 Additionally, it was submitted to the Commission that the centralised ‘hub’ would provide infrastructure on which to build stronger referral pathways between VOCAT and other support services for victims who are in contact with the criminal justice system.^[44]

Providing pathways to restorative justice

8.35 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that a ‘hub and spoke’ operating model would also provide a platform for future innovations, such as introducing restorative justice options for victims as part of their recovery,^[45] or enabling VOCAT judicial officers’ involvement in a panel to hear victims’ experiences of the justice system.^[46]

Establishing a more robust administrative and regulatory framework

8.36 Key to the reform proposal submitted by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria is the establishment of a robust administrative and regulatory framework to support the Tribunal in exercising its functions in relation to making awards for expenses for goods and services.^[47]

8.37 It was submitted to the Commission that this regulatory framework should consist of a combination of accreditation, research capacity, guidelines and the development of procurement strategies in relation to expenses commonly awarded by the Tribunal.^[48]

An administrative model

8.38 This part of the chapter provides an overview of possible administrative models.

8.39 Administrative models are used in Queensland, the Northern Territory, Tasmania, Western Australia, New South Wales and the Australian Capital Territory.^[49] Taking into account views expressed by stakeholders during consultations, and administrative models in operation in other jurisdictions, the Commission considers there are broadly four administrative models:

• a government victim assistance agency as the decision making body

• an independent and specialist decision maker (e.g. Commissioner)

• an expert panel or board as the decision making body

• a combined administrative/judicial model—a ‘hybrid’ model.^[50]

8.40 Each of these models are discussed further below.

8.41 These models and their key components, along with the reformed VOCAT proposal, are also summarised in Table 1 over the page.

Table 1: Possible models of state-funded financial assistance

Government victim assistance agency as decision making body

8.42 The first administrative model is for state-funded financial assistance to be embedded within the relevant government-funded victim support agency. This model is used in Queensland where Victim Assist Queensland administers the state-funded financial assistance scheme as part of the Queensland Department of Justice and Attorney.^[51]

8.43 In Victoria, the equivalent government-funded victim support agency is the Victims Support Agency, Department of Justice and Regulation. Like Victim Assist Queensland, Victoria’s Victims Support Agency is the gateway to victim support in Victoria and already coordinates a range of services for victims of crime, including the Victims of Crime Helpline, the Victims Assistance Program and the Victims Register.^[52]

Independent and specialist decision maker

8.44 The second administrative model is for state-funded financial assistance to be provided through an independent, specialist decision maker. An example of this model is that of the Australian Capital Territory. While it is similar to the administrative model in Queensland, instead of a public servant ‘scheme manager’, an independent statutory commissioner oversees the scheme.

8.45 Victim Support ACT, the government body responsible for delivering the ACT Victims Services Scheme, administers both the financial assistance scheme and victim case management services provided under the Victims Services Scheme.^[53] Victim Support ACT processes applications for financial assistance and the Victims of Crime Commissioner, the head of Victim Support ACT, is the final decision maker.^[54]

8.46 In Victoria, this is the equivalent of the Victims of Crime Commissioner overseeing the state-funded financial assistance scheme.^[55]

Expert panel or board as decision making body

8.47 The third administrative model is an expert panel or board as decision maker, assisted by relevant departmental staff. This is similar to the model in Tasmania where Independent Criminal Injuries Compensation Commissioners are decision makers, supported by Victims Support Services, Department of Justice.^[56]

8.48 This model is also used in the United States of America where some states use compensation boards or commissions to make victim compensation decisions. For example, the Minnesota Crime Victims Reparations Board has five members appointed by the Commissioner of Public Safety. One Board member must be a physician and at least one member must have been a victim of crime. The Board meets monthly and makes determinations for more complex applications. More straightforward decisions are made by government department staff.^[57]

8.49 This model could be compared to Victoria’s use of the Adult Parole Board.^[58]

Hybrid model

8.50 The final model, which was proposed in some consultations and written submissions, combines the existing scheme with an administrative model.

8.51 A hybrid model differs from what VOCAT consider to be their quasi-judicial model, in that stakeholders envisage that under a hybrid model administrative decisions (decisions made ‘on the papers’) would be made by a government agency or department rather than court staff or magistrates.

8.52 Various views were put forward as to how such a model could work, with some stakeholders proposing that decision making could be split between the administrative or judicial stream according to factors such as:^[59]

• assistance type (that is, expenses versus lump sum payments)

• urgency (that is, interim awards versus final awards)

• complexity

• if a victim requested a judicial hearing.

8.53 There is no Australian precedent for this hybrid model.^[60]

Which model would deliver assistance more effectively?

8.54 The Commission has assessed each identified possible model—including a reformed VOCAT model—against its ability to meet the eight objectives outlined in the supplementary terms of reference (reference objectives).

8.55 The Commission’s analysis of each models’ potential to meet reference objectives is outlined below.

A reformed judicial model

8.56 This part of the chapter examines the extent to which the Commission considers a reformed VOCAT model may address some of the concerns that have been identified with Victoria’s existing scheme.

8.57 As outlined above, it is clear from the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria that the existing scheme can be reformed to deliver more victim-centred and trauma-informed responses to better support victims in their recovery. Indeed, it is clear from the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria that VOCAT and the courts are willing to embrace such reforms.

8.58 In the Commission’s view, these proposed reforms are significant and would provide a much improved model of assistance for victims. However, the supplementary terms of reference require the Commission to consider other models and to determine which model would deliver assistance more effectively to victims of crime.

8.59 The Commission recognises the initiatives VOCAT has already implemented to adapt and respond to system pressures, including advocating for a range of legislative reforms to improve system efficiencies and responsiveness to victims of crime, and introducing new initiatives such as the Koori VOCAT list.^[61]

8.60 In the Commission’s view these initiatives indicate that VOCAT is likely to be able to continue to adapt to the pressures of demand and to adopt new approaches to better meet victims’ needs. Consistent with this, and as noted below, the Commission considers that a reformed judicial model as proposed by VOCAT, the Magistrates’ Court of Victoria and Children’s Court of Victoria in their submission, would likely deliver improved outcomes for victims. However, the Commission considers that a reformed judicial model may not adequately address a number of reference objectives.

Possible improvements under a reformed judicial model

8.61 The Commission considers that the proposal by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria to increase consistency and predictability through the use of specialised magistrates and staff is likely to lead to fairer and more equitable decision making. In addition, the Commission considers the proposal for accreditation and procurement programs for goods and services could increase fairness and equity for individual victims, as well as across the scheme more generally. A robust regulatory framework could support the Tribunal in the making of awards for expenses for goods and services through a combination of accreditation, research capacity, guidelines and the development of procurement strategies^[62] which would likely provide improved accountability in relation to the quality of services provided to vulnerable victims.

8.62 Similarly, the Commission considers that the proposal by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria to centralise decision making and appoint specialist VOCAT magistrates and registry staff is likely to lead to increased consistency and predictability for victims as well as minimise trauma and maximise therapeutic effect. The Commission also considers these initiatives would also likely yield significant efficiencies, service improvements and better outcomes for victims of crime.

Reference objectives a reformed judicial model may not adequately address

8.63 Notwithstanding the potential benefits of a reformed judicial model noted above, the Commission considers the following reference objectives may not be adequately addressed under the proposed reformed judicial model:

• timeliness

• maximise therapeutic effect/minimise trauma

• efficient and sustainable for the state

• simple and easy to understand/reduce the need for legal representation.

8.64 The Commission’s conclusions are based on concerns raised by stakeholders in consultations and in written submissions, as well as in relevant research into both the existing scheme and the experience in other jurisdictions.

Timeliness

8.65 As discussed in Chapter 7, timeliness of decision making is a key criticism of the existing scheme. Many stakeholders said that the timeliness of VOCAA awards is a significant problem^[63] and often prevents victims from receiving financial assistance when they need it most.^[64]

8.66 Although the proposal of VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria for a central registry with specialised staff and case management may lead to improved timeliness, the Commission has concerns about the ability for a court-based system, relying on the infrastructure and staff of the Magistrates’ Court, to provide timely responses. These concerns are based on evidence from other jurisdictions, outlined below, which indicate judicial/court-based models are less likely to produce timely decisions because of resource constraints and the prioritisation of other court business.

8.67 In 2012, the NSW Department of Attorney General and Justice published its report Review of the Victims Compensation Fund. The independent review found that the objectives of the Victims Support and Rehabilitation Act 1996 (NSW)—to provide support and rehabilitation to victims of violent crime through counselling and compensation—were not being met. This was due to significant delays in the provision of compensation, with an average wait of over two years.^[65] During consultations with the NSW Commissioner of Victims Rights, the Commission was told that the administrative scheme, introduced in New South Wales following this review, now determines claims for financial assistance in an average of 26 days.^[66]

8.68 Similarly, the Victims of Crime Assistance Act 2007 (NT) was introduced in 2007 to replace an earlier court-based compensation scheme which had been found to be inefficient, slow, overly complex and costly. A review of the scheme in 2007 found that it resulted in a more streamlined administrative case assessment process for financial assistance.^[67]

8.69 In Queensland, delays (among other issues) also prompted a transition from a court-based scheme to an administrative model. The Victims of Crime Assistance Act 2009 (Qld) introduced an administratively based scheme by establishing Victim Assist Queensland to administer the financial assistance scheme along with services and support for victims of crime.^[68] In consultations with Victim Assist Queensland, the Commission was told that typical turnarounds on financial assistance applications are:^[69]

• three weeks for funeral and interim applications

• three months for primary victims

• six months for secondary victims.

8.70 A review of the new scheme in Queensland in 2015 found the scheme to be working well in comparison to the previous compensation scheme, providing direct and timely financial assistance to a wider range of victims:

Based on the above data and results of consultation, the review concluded that the

new financial assistance scheme under the VOCA Act is doing what it was intended to do—helping more victims by providing them with financial assistance that will directly help them to recover from the act of violence as soon as possible after the act occurs. Given this conclusion, other models of financial assistance were not considered as a part of the review.^[70]

8.71 VOCAT has also acknowledged that in the current operating environment, Magistrates’ Court appearances necessarily take precedence over VOCAT administration.^[71]

Maximise therapeutic effect/ minimise trauma

8.72 The joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria states that under their proposed reformed model, specialist magistrates ‘would also minimise the risk of hearings re-traumatising a victim’.^[72]

8.73 The Commission agrees that specialisation would likely reduce the risk of re-traumatisation. However, the Commission considers that while a risk minimisation approach may be sufficient for other court proceedings—where victims might be required to be a witness and the purpose of the process is not to assist victims, but to prosecute crime—a risk minimisation standard may not be consistent with a beneficial scheme design, the purpose of which is to assist victims to recover from the effects of crime.

8.74 The Commission considers that a risk minimisation approach does not place victims at the centre of the process, nor does it demonstrate a trauma-informed approach in which victims’ needs are paramount.

8.75 The Commission notes that although increased specialisation and case management of applicants may provide the basis for a more trauma-informed response, there is evidence that the adversarial nature of court-based models increases potential for trauma. For example, Cook et al observe that compensation proceedings ‘often have the appearance of a trial, with the victim standing in the position of the accused’.^[73] Chan et al have also observed that the ‘adversarial nature of the compensation process for many victim schemes can detract from the well-being of the victim and from the rehabilitative objectives of the scheme’.^[74] In the recent case of QMX v Victims of Crime Assistance Tribunal,^[75] VCAT stated:

The woman [victim] was an impressive witness. She gave her evidence carefully … Much of her evidence concerned extremely distressing and painful events. The woman [victim] often cried and at times sobbed when describing what had occurred including about the harm suffered by her children – to my untrained eye it appeared as if she was reliving the events as she described them.^[76]

8.76 In the context of VOCAT hearings, the Commission notes that some victims have described their experiences as resembling a ‘trial’, in that the VOCAT hearing process makes some victims ‘feel like a criminal’, ‘judged’ and that they have to ‘justify their emotions’.^[77] Other victims have been extensively cross-examined by legal counsel for the alleged perpetrator.^[78] Such processes have the potential to cause significant harm to a victim. For example, a Canadian study into victims’ needs found that victims who felt like their credibility was being questioned by the criminal justice system were more likely to suffer symptoms of PTSD and low self-esteem.^[79]

Efficient and sustainable for the state

8.77 VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria submitted that the VOCAT model is efficient and sustainable, as it is heavily subsidised by the Magistrates’ Court of Victoria and enables VOCAT to use magistrates’ court staff, judicial officers and court infrastructure and thereby limit its overall running costs.^[80]

8.78 However, in the Commission’s view the reformed judicial model proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria still raises issues of sustainability and efficiency in the long term.

8.79 In the Commission’s view, the reformed VOCAT proposal submitted by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria does not sufficiently address how the proposed continuation of VOCAT within the Magistrates’ Court fits with the broader operating environment where ‘the VoCAT workload is one of many daily competing priorities across MCV, and Court appearances necessarily take precedence over the administrative jurisdiction of VoCAT’.^[81] In the Commission’s view, while prioritising court appearances may be an operational necessity, it nevertheless conflicts with the evidence-based research indicating that delays in the payment of financial assistance to victims of crime has a counter-therapeutic effect on victims^[82] and therefore creates a potential conflict for magistrates undertaking both Magistrates’ Court and VOCAT work.

8.80 In addition, the Commission remains concerned that the VOCAT model establishes an entire decision making framework and structure based on a court-like process—including judicial registrars, registrars, court registries and judicial officers—when the majority of decisions (approximately 85 per cent) are dealt with administratively ‘on the papers’.^[83] Under the proposed reformed VOCAT model, as submitted by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, a large percentage of decisions would be made by non-judicial officers. The Commission considers that the overall efficiency of a judicial-based model appears low, given the judicial component of the VOCAT model would only ever serve a small percentage of victims who wish to attend a hearing.

8.81 In the Commission’s view the high proportion of administrative decisions indicates victims’ needs might be better met through using more specialised and appropriately trained administrative decision makers, freeing up court resources to undertake matters requiring judicial oversight.

8.82 These issues must also be viewed in the context of an increased demand on the magistrates’ court jurisdiction more generally. As noted by the then-Department of Justice in the 2009 discussion paper Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards:

As [VOCAT] operates within the organisational structure of the Magistrates’ Court of Victoria, the Tribunal’s caseload and resourcing requirements cannot be considered in isolation of the Magistrates’ Court, which has also experienced an increase in caseload. The growth in both jurisdictions must be considered as part of the review of the sustainability of the current model of state-funded assistance awards.^[84]

8.83 As discussed in Chapter 7, the operating environment of the Magistrates’ Court of Victoria has changed considerably since VOCAT was introduced in 1996. The increased pressure on the court, particularly in its criminal jurisdiction has also been acknowledged by the Magistrates’ Court of Victoria.^[85] A recent evaluation into Victoria Legal Aid’s work in the summary jurisdiction of the Magistrates’ Court of Victoria described the entire summary jurisdiction as ‘approaching crisis’ and ‘overloaded, under-resourced and overborne’.^[86]

8.84 The Commission notes that the 2018–19 Victorian Budget has allocated an additional three magistrates to establish a new Bail and Remand Court in the Magistrates’ Court, and 15 magistrates in the Criminal Division of the Magistrates’ Court to respond to increases in demand.^[87] Although such initiatives may increase resourcing in the Magistrates’ Court more broadly, a judicial model subsidised by Victoria’s busiest court

may no longer represent the most efficient and sustainable model for the delivery of a state-funded financial assistance scheme.

Simple/easy for victims to understand and reducing need for legal representation

8.85 The Commission acknowledges that the proposal in the joint submission by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria to establish a central registry or ‘hub’, along with introducing case management,^[88] would likely result in the process being simpler and easier for victims to understand. However, the Commission is concerned that the model would still require victims to have legal representation in most cases. While the Commission has not been asked by the supplementary terms of reference to remove a victim’s right to legal representation, it has been asked to consider reducing reliance so that victims are not required to engage lawyers to access the scheme in all cases.

8.86 In the Commission’s view, the proposal by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria^[89] to maintain a quasi-judicial model where hearings could still be requested by judicial officers, increases the complexity for victims navigating the process and increases reliance on legal representation. The Commission considers there may be issues of fairness for victims if they are not legally represented in a quasi-judicial model because such a model may require victims to attend hearings where legal submissions are sought on complex matters like proof of injury and causation. Without a lawyer, this would be a very difficult process for a victim to navigate.

An administrative model

8.87 This part examines a range of administrative models of state-funded financial assistance and considers whether such models would deliver assistance to victims of crime more effectively.

8.88 This part examines the following administrative models:

• a hybrid model

• an expert panel, board or Commission

• a government-administered victims support agency

• an independent, specialised and dedicated decision maker.

A hybrid model

8.89 The Commission considered the potential advantages and disadvantages of a hybrid model, which is essentially a middle ground between a purely administrative and purely judicial model.^[90] A hybrid model incorporates components of the existing judicial model and components of an administrative scheme, such as the option of having a judicial hearing in certain circumstances.

8.90 Various views were put forward as to how such a model could work, with some stakeholders proposing decision making could be split between administrative or judicial decision making according to factors such as:^[91]

• assistance type (that is, expenses versus lump sum payments)

• urgency (that is, interim awards versus final awards)

• complexity

• if a victim requested a judicial hearing.

8.91 Given this model’s adoption of components of the existing VOCAT model, such as judicial decision making, use of court staff and infrastructure and court listing practices, this option is likely to encounter similar issues as encountered under the reformed judicial model, such as issues with timeliness, minimisation of trauma, and efficiency and sustainability for the state, which have already been outlined above.

8.92 In addition, it is likely that a hybrid model would increase the complexity of the system primarily because the point at which a decision would be ‘judicial’ or ‘administrative’ is likely to be unclear to most victims, particularly those without legal representation. This means that this model would likely not be simple and easy for victims to understand, nor reduce reliance on legal representation.

8.93 Significantly, no other Australian jurisdiction has a hybrid model of this kind.

8.94 The Commission considers that a hybrid model would not more effectively deliver assistance to victims of crime, nor meet reference objectives.

Expert panel, board or commission

8.95 The Commission has considered the potential advantages and disadvantages of an administrative model using a panel or board.

8.96 The Commission considers it likely that this model would see some overall improvements in certain reference objectives, particularly fairness and equity, consistency and predictability and maximise therapeutic effect.

8.97 Like a reformed judicial model, this model may also encounter issues with timeliness and minimising trauma.

8.98 To the extent that an expert panel, board or commission is quasi-judicial, timeliness is likely to be affected in the same way as under a reformed judicial model.

8.99 The quasi-judicial nature of a panel, board or commission may also raise similar concerns about the potential for processes to be more adversarial and is less likely to be simple and easy for a victim to access and navigate without a lawyer. For this reason, the Commission does not consider this model to most effectively meet reference objectives.

Government-administered victim assistance agency and independent, specialist decision maker

8.100 The two remaining administrative models are:

• a government-administered victim assistance agency as decision maker

• an independent, specialist decision maker.

8.101 These administrative options are similar in their approach but the key difference is the decision maker. Due to their similarities, the Commission considers them together for ease of comparison.

8.102 These models are broadly based on the current models in Queensland, the Australian Capital Territory and New South Wales, jurisdictions which have recently transitioned from a court-based model to an administrative model.^[92]

8.103 In all three jurisdictions, the state-funded financial assistance schemes are embedded within the relevant government-administered victim assistance agency, with dedicated case management and assessment teams. Queensland does not have an independent decision maker, using government assessors and a scheme manager to manage the scheme.^[93] In contrast, the Australian Capital Territory has a Victims of Crime Commissioner as head of the agency administering the financial assistance scheme, along with other victim services.^[94] New South Wales also uses a Commissioner of Victims Rights to oversee its scheme, along with other victim services.^[95]

8.104 The Commission considers that a number of key reference objectives would likely be met by both a government-administered victim assistance agency model and an independent decision maker model.

8.105 The Commission considers that both models would meet the following reference objectives:

• Timely assistance: In some Australian jurisdictions where administrative schemes have been introduced, there has been a marked increase in timely decision making. For example, in New South Wales, timeframes have decreased from around two years^[96] to an average of 26 days.^[97] In Queensland, decisions are typically made in three weeks for funeral and interim applications, three months for primary victims and six months for secondary victims.^[98]

• Consistent and predictable processes and outcomes: A dedicated and specialised administrative scheme would provide for a centralised and specialised decision making process, with dedicated decision makers working in one central location, improving consistency in processes and outcomes. Administrative processes implemented in other Australian schemes have improved the consistency and predictability for victims, for example through decision makers providing comprehensive ‘statements of reasons’ in each matter which outline their reasons for a decision.^[99]

• Minimise trauma: Unlike a court-based model, administrative schemes minimise adversarial processes because victims are not required to attend court for hearings. This means victims are not required to give evidence, nor are alleged perpetrators able to attend a hearing. In addition, in some administrative schemes in Australia, multidisciplinary assessors use a ‘beneficial’ case management approach in which assessors treat applicants as ‘clients’, liaising with victims and their support network to discuss a victim’s financial assistance needs to minimise the trauma and administrative burden associated with applying for financial assistance.^[100]

• Simple and easy to understand /reduce reliance on legal representation:

In other Australian jurisdictions where administrative schemes have been introduced, there has been a reduction in the need for victims to engage lawyers to navigate the process.^[101] Although lawyers can still be used in some jurisdictions, the beneficial case management approach used by assessors reduces reliance on lawyers overall.

• Efficient and sustainable for the state: Given the pressures of increased demand in the Magistrates’ Court of Victoria, particularly in the criminal jurisdiction,^[102] an administrative model would likely improve efficiency and sustainability for the state by freeing up court resources, staff and magistrates to undertake Magistrates’ Court of Victoria work.

8.106 Although the Commission considers that a number of key reference objectives, as outlined above, would be met by both a government-administered victim assistance agency model, and an independent decision maker model, the Commission considers that using a government-administered victim support agency as the decision making body may not provide victims with an appropriate forum for victim acknowledgment and participation. Therefore, this model may limit the scheme’s ability to maximise therapeutic effect for victims. In addition, there may be perceptions of unfairness due to the lack of independent decision making in the scheme’s design. This may impact on actual and perceived fairness and equity.

8.107 The Commission also notes that the administrative model using an independent, dedicated and specialised decision maker does meet each of the reference objectives as outlined above. In addition, unlike a scheme delivered by a government victim support agency, the independence of the decision maker would increase fairness and equity as the decision maker’s independence and functions would be prescribed in legislation. A further significant advantage of this model is that using an independent, dedicated and specialised decision maker would also enable the decision maker to conduct private hearings to provide victims with a forum to be heard and for acknowledgment by the state.

Discussion

8.108 The supplementary terms of reference at matter eight ask the Commission to consider whether any processes, procedures or requirements under the VOCAA cause unnecessary delay to the provision of assistance to victims of crime. In considering this, the Commission is asked to consider whether there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model.

8.109 As noted in the introduction to this chapter, the Commission has approached assessment of these options for reform by asking, in accordance with the supplementary terms of reference, which model ‘would more effectively deliver assistance?’^[103]

8.110 This part of the chapter discusses the challenges with reforming the existing scheme and considers how to best meet the reference objectives.

Challenges with reforming a judicial model

8.111 The Commission acknowledges that in their joint submission VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria have proposed significant changes to VOCAT’s operations and service delivery model to enable more victim-centred and trauma-informed responses and to better provide assistance to victims of crime.^[104]

8.112 As discussed above, the Commission considers that the existing scheme can be reformed, and that a reformed VOCAT model, alongside relevant technical reforms to the VOCAA, would likely result in improved outcomes for victims against a number of the reference objectives, including increased fairness, equity, consistency and predictability, as well as minimising trauma and maximising therapeutic effect.

8.113 While the Commission acknowledges that improvements can be made to the existing scheme, the Commission considers that a judicial model no longer represents the model of state-funded financial assistance that would deliver assistance to victims most effectively or be the most efficient or sustainable model for the state.

8.114 For reasons outlined above, the Commission considers a reformed judicial model may not adequately address the following key reference objectives:

• Timeliness: Research demonstrates that delays in the payment of financial assistance to victims of crime can have a counter-therapeutic effect on victims.^[105] The Commission considers that it may be difficult for the timeliness of awards to be significantly improved under the reformed VOCAT model because in the current operating environment, Magistrates’ Court appearances necessarily take precedence over VOCAT administration.^[106] This is contrasted with the experience in other jurisdictions where transitioning from a court-based model to an administrative model has demonstrated increased timeliness in decision making.^[107]

• Minimise trauma: Consultation findings and research into victims’ experiences of VOCAT demonstrate that many victims do not experience a therapeutic outcome under a court-based model. As noted above, case studies provided by stakeholders indicate VOCAT can be a source of potential re-traumatisation.^[108] The adversarial nature of VOCAT, as described by some stakeholders,^[109] can also make some victims ‘feel like a criminal’, ‘judged’ and that they have to ‘justify their emotions’.^[110] Inner Melbourne Community Legal submitted that even where they are confident a client would be eligible for a higher award of financial assistance, ‘they are willing to walk away with little or nothing at all, knowing that they could not continue with a process that was destructive and ultimately harmful to them’.^[111] The Victim Survivors’ Advisory Council submitted that the ‘current scheme relies on being an adversarial system rather than adopting a “trauma-informed”, “victim-centred” or “human-centred” response’.^[112] Accordingly, the Commission considers that although there may be therapeutic outcomes for some victims, a reformed judicial model may not adequately address the reference objective of minimising trauma for all victims of crime.

• Efficiency and sustainability: Although VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria have submitted that the VOCAT model is efficient and sustainable,^[113] the Commission considers that a reformed VOCAT model still raises issues of sustainability and efficiency in the long term. As discussed above, the need for court appearances to take precedence over VOCAT matters ultimately conflicts with the beneficial and timely responses required to meet victims’ needs under a state-funded financial assistance scheme. Although such prioritisation may be operationally necessary, it disadvantages victims of crime who often require timely assistance.^[114] Given the increased pressure on the court, particularly in its criminal jurisdiction,^[115] the Commission considers that the efficiency and sustainability of a judicial model, subsidised by Victoria’s busiest court, is no longer the most efficient and sustainable model for the delivery of a state-funded financial assistance scheme.

• Simple/easy to understand and reduces reliance on legal representation: The Commission is concerned that even a reformed judicial model would remain complex for a victim to navigate and would likely increase the need for victims to obtain legal representation in most cases. The Commission acknowledges that the proposal by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria to establish a central registry or ‘hub’, along with introducing case management,^[116] may result in the process being simpler and easier for some victims to understand. However, the Commission is concerned that the model would still require victims to have legal representation, raising issues of fairness if victims were not legally represented.

8.115 Accordingly, and despite recognising the improvements that may be achieved through a reformed judicial model as outlined above, the Commission nevertheless considers that the majority of reference objectives would not be sufficiently met under the proposed reformed judicial model.

Meeting reference objectives—an independent, dedicated and specialised decision maker

8.116 Earlier in this chapter the Commission noted that it appeared likely that all key reference objectives could be met by an administrative model using an independent, dedicated and specialised decision maker. This included key objectives of:

• timely

• consistent and predictable

• minimise trauma

• simple and easy to understand

• reduce reliance on lawyers

• efficient and sustainable for the state.

8.117 The Commission noted that the independence of the decision maker under this model would also likely increase fairness and equity, with centralised decision making, specialisation and dedicated resources improving consistency and predictability for victims and being more conducive to timely decision making, vital to the effectiveness of any scheme and a victim’s recovery.

8.118 The Commission also considers that a significant advantage of the independent, dedicated and specialised decision maker model is that it would enable the decision maker to conduct private hearings to provide victims with a forum to be heard and acknowledged by the state. In this regard, this model can incorporate elements of victim validation which stakeholders considered important from the existing scheme.

8.119 The Commission considers that the advantages of an independent and dedicated, specialised decision maker model are:

• a victim-centred, trauma-informed process designed with victims’ needs and recovery as paramount

• A beneficial approach rather than a focus on evidentiary requirements, court processes and adversarial approaches

• establishing victims’ financial assistance as a specialist field of expertise, with an independent, dedicated, specialist decision maker supported by an independent office of specially trained case managers, specialising in victim recovery and support needs, with further opportunity to establish specialist approaches based on complexity or victims’ needs

• improved accessibility through better integration with existing government-administered victim support programs, to improve referral pathways and improve the number of victims accessing the scheme

• in-built, specialist case management reducing reliance on lawyers and assisting victims to meet evidentiary and documentation requirements

• timely decision making, enabling triaging for immediate financial assistance through dedicated specialist teams and resources, using a case management approach to assess victim needs holistically, allocate urgent supports quickly, and access longer-term supports more easily.

• improved consistency and predictability, with centralised, specialised decision making combined with mandatory training/education requirements and increased accountability and reporting mechanisms, including bringing the provision of financial assistance within the scope of the Victims’ Charter Act 2006 (Vic)^[117]

• efficiency and sustainability for the state, reserving magistrates and other court staff for Magistrates’ Court business in a climate of significantly increased demand

• providing a forum to be heard and acknowledged in a victim-centred, trauma-informed environment by someone with standing in the community.

Commission’s conclusions and recommendations

8.120 The proposed judicial model remains afflicted by a number of significant issues. In contrast, the independent, dedicated and specialist decision maker model has the potential to more effectively deliver assistance to victims as required by the supplementary terms of reference. Significantly, it is designed to meet victims’ legitimate needs in accordance with contemporary insights and understanding. It is freed from past concepts of offender involvement,^[118] which may be appropriate for court processes, but which are not necessary for modern administrative processes for victim assistance.

8.121 Accordingly, the Commission considers that the most effective model to deliver Victoria’s state-funded financial assistance scheme is through the establishment of an independent and dedicated, specialised decision maker to oversee Victoria’s state-funded financial assistance scheme (the proposed model).

8.122 The Commission considers that this proposed model would not only provide for administrative efficiencies, but would incorporate similar victim participation and recognition elements as provided for under the existing scheme, primarily through the ability to conduct victim hearings.^[119] In this context, the Commission considers that the new decision maker’s power to conduct hearings is a central component of the Commission’s proposed reforms and vision for a model that meets victims’ pecuniary and non-pecuniary needs. Victim recognition under the proposed model is discussed in Chapter 10.

8.123 The next part of this chapter discusses the proposed model, including how the Commission has incorporated stakeholder views into the proposed new model’s design.

The proposed model

8.124 The Commission considers that the proposed model provides a unique opportunity to design a purpose-built, victim-centred, trauma-informed model of state-funded financial assistance for crime victims.

8.125 In this context, the Commission has the unique opportunity to consider learnings from the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, which used an innovative trauma-informed approach, as well as integrating aspects of Victoria’s existing scheme that work well.

8.126 The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse has highlighted the advantages of creating a purpose-built, victim-centred model approach from the ground up: ‘We had the advantage of creating processes and a culture from scratch, a rare opportunity and not one afforded to most courts or tribunals.’^[120]

8.127 In assessing whether the proposed model can incorporate beneficial elements from the existing scheme, the Commission notes that stakeholders supporting the retention of the existing scheme primarily focused on the importance of:

• victims having the right to legal representation

• victims being given the opportunity to be heard or acknowledged.

8.128 The Commission considers it important that victims have a right to legal representation during the financial assistance process, and it is not the Commission’s intention that this right be removed. Legal representation is discussed in Chapter 10.

8.129 Similarly, the Commission considers it important that victims have the opportunity to be acknowledged and heard. The Commission considers this can be provided for under the proposed model through victim-centred, trauma-informed private hearings. In the Commission’s view, such forums will provide victims with an opportunity for validation and acknowledgment by the state, and will ensure victims are given a voice. Victim recognition is also discussed in Chapter 10.

Establishing an independent and dedicated, specialised decision maker

8.130 In recognition of the views expressed in written submissions and during consultations, including with victims and their advocates, the Commission considers that:

• a new model of state-funded financial assistance should be introduced to more effectively deliver assistance to victims of crime in Victoria

• the most effective way for delivering Victoria’s state-funded financial assistance scheme is an independent and dedicated decision maker.

Recommendation

1 To enable state-funded financial assistance to be more effectively delivered to all victims of crime, a new state-funded financial assistance scheme should be established, led by an independent and dedicated decision maker whose powers and functions are prescribed in legislation.

A new Act

8.131 Given the Commission’s recommendation that a new model of state-funded financial assistance should be introduced, and that the new scheme should be delivered through the establishment of an independent and dedicated, specialised decision maker, this part of the chapter considers whether there is a need for a new Act to support these significant changes.

8.132 While the Commission did not specifically seek stakeholder views on whether the VOCAA should be retained, a number of stakeholders commented that the VOCAA was outdated. For example, the Aboriginal Family Violence Prevention & Legal Service Victoria submitted that the VOCAA was not designed to respond to family violence and ‘is in dire need of reform’.^[121] Similarly, Domestic Violence Victoria and Women’s Legal Service said the Act is no longer ‘fit for purpose’.^[122]

8.133 Other stakeholders noted that a number of provisions of the VOCAA were outdated and no longer reflected community standards. For example, the Commission was told that the inclusion of provocation in section 54 of the VOCAA was outdated^[123] and ‘out of step’ with community standards.^[124] Similarly, a number of stakeholders told the Commission that the ‘related victim’ category does not recognise contemporary notions of family.^[125]

8.134 Other stakeholders noted the complexity of the VOCAA.^[126]

8.135 The VOCAA was enacted in 1996. Since that time, there have been significant reforms introduced in Victoria relevant to victims of crime. These include the introduction of the Family Violence Protection Act 2008 (Vic), the Victims’ Charter Act 2006 (Vic) and the Victims of Crime Commissioner Act 2015 (Vic). In addition, during this time, community attitudes and values have changed and with them, as recognised by VOCAT, notions about what constitutes a violent crime and also the ways in which a person can be a crime victim.^[127]

8.136 With the exception of the Victims of Crime Amendment Act 2000 (Vic) which introduced new lump sum awards of special financial assistance for primary victims who suffer ‘significant adverse effects’ as a direct result of an act of violence,^[128] the VOCAA has not been significantly altered since its inception.^[129] As a consequence, and as discussed later in this report, the Commission recommends significant reform to the substantive and operational provisions of the VOCAA.

8.137 The Magistrates’ Court of Victoria and VOCAT have noted that amending the VOCAA is a complex task because modernising, clarifying or streamlining some provisions will affect other sections in the VOCAA, as well as other legislation, and may result in unintended consequences.^[130]

8.138 The Commission agrees that amending the VOCAA to reflect a new model of state-funded financial assistance would be challenging. It would require redrafting of the VOCAA to make marked departures from its current form. Given the substantive nature of the legislative and procedural reforms recommended by the Commission in this report, as well as the Commission’s overarching recommendation for the establishment of a new model for the state-funded financial assistance scheme, the Commission therefore concludes it would be inappropriate and impractical to retain the existing VOCAA.

8.139 Accordingly, the Commission considers that the VOCAA should be repealed and replaced with an Act (the ‘proposed Act’) establishing the new state-funded financial assistance scheme and incorporating the legislative reforms recommended in this report.

8.140 In the Commission’s view, the proposed new Act would benefit from the use of plain language to address some of the stakeholder concerns outlined above in relation to the VOCAA’s complexity. The Commission notes the Victorian Office of the Chief Parliamentary Counsel’s Plain English Policy, which states that the ‘meaning of a law must be clear and legally certain if it is to achieve its purpose’. The Commission also notes that the Office of the Chief Parliamentary Counsel’s policy is to use plain language in the drafting of legislation.^[131]

Recommendation

2 The Victims of Crime Assistance Act 1996 (Vic) should be repealed and replaced with an Act establishing the new state-funded financial assistance scheme and incorporating the legislative reforms recommended in this report.

A new scheme

8.141 As discussed above, the Commission considers that the most effective way to deliver Victoria’s state-funded financial assistance scheme is through the establishment of an independent and dedicated decision maker to oversee Victoria’s state-funded financial assistance scheme (the proposed model).

8.142 The proposed model is the Commission’s conceptual framework for how to deliver assistance most effectively to victims of crime.

8.143 Having determined the most effective model, the Commission has then recommended that a new state-funded financial assistance scheme be established, and that the VOCCA be repealed and replaced with an Act establishing the new scheme.

8.144 Hereafter in this report, the Commission refers to:

• the ‘proposed Act’ as the Act to establish the ‘proposed scheme’

• the ‘proposed scheme’ as the state-funded financial assistance scheme for victims of crime provided for by the ‘proposed Act’

• the ‘existing scheme’ as the state-funded financial assistance scheme established under the VOCAA and administered by the VOCAA.

1. These two options for reform were referred to as ‘Approach 1: Reforming the Existing Scheme’ and ‘Approach 2: Is There a Need for a Different Model’ in Chapters 14 and 15 of the Commission’s supplementary consultation paper: Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 182 and 202.

   ↑

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

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3. See Supplementary Terms of Reference matter number eight.

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4. Submissions 38 (Ryan Carlisle Thomas Lawyers), 43 (knowmore).

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

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6. Submissions 13 (Adviceline Injury Lawyers), 22 (YourLawyer), 23 (Johnstone & Reimer Lawyers), 42 (Joint Submission Springvale Monash Legal Service et al), 51 (Law Institute of Victoria); Consultations 2 (Legal Professionals—Private Practice), 9 (Domestic Violence Victoria Members), 10 (Regional Consultation—Morwell Victim Support Agencies), 12 (Regional Consultation—Mildura Victim Support Agencies), 19 (RMIT Centre for Innovative Justice), 20 (Academics).

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7. Submissions 22 (YourLawyer), 23 (Johnstone & Reimer Lawyers); Consultations 13 (Regional Consultation—Mildura Legal Professionals), 15 (Regional Consultation—Ballarat Victim Support Agencies).

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8. Submissions 13 (Adviceline Injury Lawyers), 14 (Inner Melbourne Community Legal), 23 (Johnstone & Reimer Lawyers), 30 (CASA Forum).

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9. Consultations 2 (Legal Professionals—Private Practice), 12 (Regional Consultation—Mildura Victim Support Agencies).

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10. Consultations 3 (Legal Professionals—Community Legal Centres), 13 (Regional Consultation—Mildura Legal Professionals).

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11. Submission 13 (Adviceline Injury Lawyers).

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12. Consultation 3 (Legal Professionals—Community Legal Centres).

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13. Ibid.

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14. Consultation 12 (Regional Consultation—Mildura Victim Support Agencies).

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15. Submission 30 (CASA Forum).

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16. Consultation 8 (Victims’ Representatives—Victims of Crime Consultative Committee).

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

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

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19. Consultations 4 (Victim, Witness and Court Support), 27 (Victim Survivors’ Advisory Council).

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20. Consultation 5 (Victims of Crime Commissioner, Victoria).

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

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22. Submission 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 5 (Victims of Crime Commissioner, Victoria), 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 14 (Chief Magistrate’s Family Violence Taskforce), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

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23. Submission 49 (Victims of Crime Commissioner, Victoria); Consultations 4 (Victim, Witness and Court Support), 5 (Victims of Crime Commissioner, Victoria), 7 (Family Violence and Advocacy Organisations), 11 (Regional Consultation—Victoria Legal Aid—Gippsland), 12 (Regional Consultation—Mildura Victim Support Agencies), 14 (Chief Magistrate’s Family Violence Taskforce), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

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

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25. Consultations 12 (Regional Consultation—Mildura Victim Support Agencies), 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW).

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26. Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

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27. Consultations 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations).

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

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29. See, eg, Submissions 7 (Dr Kate Seear et al), 13 (Adviceline Injury Lawyers), 19 (Schembri & Co Lawyers), 22 (YourLawyer), 23 (Johnstone & Reimer Lawyers), 28 (South Metropolitan Integrated Family Violence Executive), 30 (CASA Forum), 38 (Ryan Carlisle Thomas Lawyers), 42 (Joint Submission Springvale Monash Legal Service et al), 43 (knowmore), 47 (Centre for Innovative Justice), 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), 59 (Victims of Crime Assistance Tribunal, Magistrate’s Court of Victoria and Children’s Court of Victoria).

    ↑

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

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31. Ibid.

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32. Ibid.

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33. Ibid.

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34. Judicial registrars currently determine approximately 21 per cent of VOCAT applications: Victims of Crime Assistance Tribunal, Annual Report 2016–17 (2017) 3.

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

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36. Ibid.

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37. Ibid.

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38. Ibid.

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39. Ibid.

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40. Ibid.

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41. Ibid.

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42. Ibid.

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43. Ibid.

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44. Ibid.

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45. Ibid.

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46. Ibid.

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47. Ibid.

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48. Ibid.

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49. An overview of the operation of schemes in other jurisdictions can be found at Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Supplementary Consultation Paper (2017) 226–35.

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50. A hybrid model differs from VOCAT’s ‘quasi-judicial’ model; under a hybrid model stakeholders envisage administrative decisions (decisions made ‘on the papers’) being made by a government agency or department rather than court staff or magistrates, but with some form of judicial involvement in the process, whether in relation to complex matters or hearings at a victim’s request.

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51. Victim Assist Queensland, Department of Justice and Attorney-General (Qld), A Guide for Victims of Crime in Queensland (2017) 9.

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

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53. Victims of Crime Commissioner, ACT Human Rights Commission, ACT Financial Assistance Scheme (2016) <www.victimsupport.act.gov.au/financial-assistance-scheme/new-financial-assistance-scheme-1-july-2016>.

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54. Ibid.

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55. The Victorian Victims of Crime Commissioner is appointed pursuant to the Victims of Crime Commissioner Act 2015 (Vic) s 7.

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56. The role of Victims Support Services is to liaise with applicants and keep them informed as to the progress of an application and provide administrative support to the Commissioners. Independent Criminal Injuries Compensation Commissioners decide whether compensation is appropriate and determine the level of financial assistance to be awarded. Commissioners are appointed pursuant to the Victims of Crime Assistance Act 1976 (Tas) s 2A and must be Australian lawyers of at least five years standing as Australian legal practitioners. See also Department of Justice (Tas), Financial Assistance (2014) <www.justice.tas.gov.au/victims/financialassistance>.

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57. Minnesota Crime Victims Reparations Board, Fiscal Year 2017 Annual Report (2017) 3.

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58. The Adult Parole Board consists of members from a diverse range of backgrounds including judicial members and community members.
    
    See Adult Parole Board, Annual Report 2016–17, (2017) 14.

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59. ‘Hybrid’ models were discussed in Submissions 18 (cohealth), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 30 (Victorian Council of Social Service), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 51 (Law Institute of Victoria).

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60. An alternative hybrid administrative/judicial model is used in South Australia. An application is made as an administrative process in the first instance to the Crown Solicitor (part of the Attorney-General’s Department). If a claim is not settled by agreement between the Crown Solicitor and the claimant within three months (or a longer period agreed between the Crown Solicitor and the claimant), the claimant may apply to the District Court for compensation. See, eg, Legal Services Commission of South Australia, Making the Claim (2016)
    
    <www.lawhandbook.sa.gov.au/ch35s02s06.php>.

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

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62. Ibid.

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63. Submissions 5 (Anglicare Victoria Victims Assistance Program), 14 (Inner Melbourne Community Legal), 15 (Merri Health Victims Assistance Program), 18 (cohealth), 23 (Johnstone & Reimer Lawyers), 24 (Darebin Community Legal Centre), 27 (Name withheld), 28 (South Metropolitan Integrated Family Violence Executive), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 38 (Ryan Carlisle Thomas Lawyers), 41 (Springvale Monash Legal Service), 43 (knowmore), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria), 49 (Victims of Crime Commissioner, Victoria), 51 (Law Institute of Victoria); Consultations 2 (Legal Professionals—Private Practice), 3 (Legal Professionals—Community Legal Centres), 4 (Victim, Witness and Court Support), 7 (Family Violence and Advocacy Organisations), 9 (Domestic Violence Victoria Members), 11 (Regional Consultation —Victoria Legal Aid—Gippsland), 14 (Chief Magistrate’s Family Violence Taskforce), 15 (Regional Consultation—Ballarat Victim Support Agencies).

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64. Submissions 38 (Ryan Carlisle Thomas Lawyers), 49 (Victims of Crime Commissioner, Victoria); Consultation 7 (Family Violence and Advocacy Organisations).

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65. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 46.

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66. Consultation 22 (Victims Services, NSW and the Commissioner of Victims Rights, NSW). See also Department of Justice (NSW), Annual Report 2015–2016 (2016) 24.

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67. Department of the Attorney-General and Justice (NT), Issues Raised at Consultation for the Review of the Victims of Crime Assistance Act, Issues Paper (2012) 12.

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68. Department of Justice and Attorney-General (Qld), Final Report on the Review of the Victims of Crime Assistance Act 2009 (2015) 3.

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69. Consultation 1 (Victim Assist Queensland).

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70. Department of Justice and Attorney-General (Qld), Final Report on the Review of the Victims of Crime Assistance Act 2009 (2015) 11.

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

    ↑

72. Ibid.

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73. 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) 70.

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74. 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) 19.

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75. [2018] VCAT 614.

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76. QMX v Victims of Crime Assistance Tribunal [2018] VCAT 614 [35].

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77. Submission 31 (Victorian Council of Social Service); Consultation 5 (Victims of Crime Commissioner, Victoria).

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

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79. Jo-Anne Wemmers and Katie Cyr, Victims’ Needs within the Context of the Criminal Justice System (University of Montreal, 2006) 100.

    ↑

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

    ↑

81. Ibid.

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82. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology, 1999) 69.

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

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84. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 23.

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85. Magistrates’ Court of Victoria, Annual Report 2015–16 (2016) 13.

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86. Law and Justice Foundation of New South Wales, In Summary: Evaluation of the Appropriateness and Sustainability of Victoria Legal Aid’s Summary Crime Program (2017) xvii.

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87. Department of Treasury and Finance (Vic), Victorian Budget 18/19: Getting Things Done, Service Delivery Budget Paper No 3 (2017) 112.

    ↑

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

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89. Ibid.

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90. A hybrid model differs from VOCAT’s ‘quasi-judicial’ model; under a hybrid model stakeholders envisage administrative decisions (decisions made ‘on the papers’) being made by a government agency or department rather than court staff or magistrates.

    ↑

91. For various options, see submissions 18 (cohealth), 29 (Women’s Legal Service Victoria and Domestic Violence Victoria), 31 (Victorian Council of Social Service), 44 (Aboriginal Family Violence Prevention and Legal Service), 51 (Law Institute of Victoria).

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92. In Queensland, a 2008 review recommended a shift to a financial assistance model establishing an administrative agency—Victim Assistance Queensland—to administer the financial assistance scheme. The Australian Capital Territory transitioned from a court-based scheme to an administrative scheme in 2016. New South Wales transitioned to an administrative scheme in 2013.

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93. Victim Assist Queensland, Department of Justice and Attorney-General (Qld), A Guide for Victims of Crime in Queensland (2017) 9.

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94. Victims of Crime Act 1994 (ACT) s 11 and Victims of Crime (Financial Assistance) Act 2016 (ACT) s 31(1).

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

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96. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 46.

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97. Department of Justice (NSW), Annual Report 2015–16 (2016) 24.

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98. Consultation 1 (Victim Assist Queensland).

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99. A statement of reasons is a written statement provided to a victim outlining the reasons for the decision, and the factors taken into account by the decision maker in reaching that decision. See detailed discussion in Chapter 10 of how statements of reasons are used in other Australian jurisdictions.

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100. Consultations 1 (Victim Assist Queensland), 21 (Victim Support ACT and the Victims of Crime Commissioner, ACT).

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101. Ibid.

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102. Law and Justice Foundation of New South Wales, In Summary: Evaluation of the Appropriateness and Sustainability of Victoria Legal Aid’s Summary Crime Program (2017) 22.

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103. See Supplementary Terms of Reference matter number eight.

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

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105. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology, 1999) 69.

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

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107. For example, in New South Wales, timeframes have decreased from around two years to an average of 26 days and in Queensland, decisions are typically made in three weeks for funeral and interim applications, three months for primary victims and six months for secondary victims. See Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 46 and Department of Justice (NSW), Annual Report 2015–16 (2016) 24.

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108. See, eg, Submissions 14 (Inner Melbourne Community Legal), 37 (safe steps Family Violence Response Centre), 44 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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109. Consultations 4 (Victim, Witness and Court Support), 27 (Victim Survivors’ Advisory Council).

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110. Submission 31 (Victorian Council of Social Service); Consultation 5 (Victims of Crime Commissioner, Victoria).

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111. Submission 14 (Inner Melbourne Community Legal).

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

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

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114. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Australian Institute of Criminology, 1999) 69.

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115. Magistrates’ Court of Victoria, Annual Report 2015–16 (2016) 13.

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

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117. It is anticipated that the independent agency/decision maker would be a ‘victims’ services agency’ for the purposes of the Victims’ Charter Act 2006 (Vic) s 3(1).

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118. Offender involvement in VOCAT matters as currently required under the VOCAA is considered further in Chapters 5 and 10.

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119. Some administrative models still provide opportunity for hearings before administrative decision makers. For example, in Tasmania, victims may elect to attend a hearing before a Criminal Injuries Compensation Commissioner: Victims of Crime Assistance Act 1976 (Tas) s 7. The legislative basis for such hearings is similar to the current legislative basis for hearings under the VOCAA, in which such hearings are legislatively prescribed as conducted for the purposes of decision making, rather than for victim acknowledgment or validation. See Victims of Crime Assistance Act 1976 (Tas) s 7 which refers to the ‘Procedure for determining applications for awards’.

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120. Carolyn Ford, ‘Commission of Care’ (2018) 92(1/2) Law Institute Journal 20.

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

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

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123. Submission 44 (Aboriginal Family Violence Prevention & Legal Service Victoria); Consultation 3 (Legal Professionals—Community Legal Centres).

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124. Consultation 11 (Regional Consultation—Victoria Legal Aid—Gippsland).

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125. Submissions 15 (Merri Health Victims Assistance Program), 31 (Victorian Council of Social Service); Consultation 4 (Victim, Witness and Court Support).

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126. See, eg, submission 23 (Johnstone & Reimer Lawyers) submitting that the complexity of the VOCAA requires judicial decision making; Consultation 14 (Chief Magistrate’s Family Violence Taskforce) where some members of the Chief Magistrate’s Family Violence Taskforce told the Commission that the model of assistance is intrinsically linked with the complexity of the VOCAA’s legislative requirements.

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127. Victims of Crime Assistance Tribunal, Annual Report 2014–15 (2015) 23.

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128. Victims of Crime Assistance (Amendment) Act 2000 (Vic) s 1(a).

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129. Although as VOCAT and the Magistrates’ Court of Victoria acknowledge in Submission 53 (Magistrates’ Court of Victoria and Victims of Crime Assistance Tribunal), the VOCAA has been amended in ‘a piecemeal fashion’.

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

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131. Office of the Chief Parliamentary Counsel (Vic), Plain English Policy (accessed 31 May 2018) <www.legislation.vic.gov.au/domino/web_notes/LDMS/pubhome.nsf/KW/OCPC!OpenDocument&ExpandSection=5,1#_Section5>. The Commission uses the terms ‘plain language’ and ‘plain English’ throughout this report. While ‘plain language’ recognises that information may be provided in languages other than English, and may therefore be more inclusive, ‘plain English’ is still used by some government departments and stakeholders, so the Commission adopts this terminology where appropriate.

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