Victims of Crime Assistance Act 1996: Report (html)

Appendix D: First and supplementary terms of reference—summary of matters considered in the report

Introduction

1 This appendix provides a summary of how each of the matters identified in the first and supplementary terms of reference are considered in this report.

First terms of reference

2 The first terms of reference ask the Commission to review and report on the provision of state-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996 (Vic) (VOCAA). The first terms of reference state that in conducting the review, the Commission should consider the following matters raised by the Royal Commission into Family Violence:

1) The eligibility test and whether this should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury.

2) Within the total financial assistance currently available, have regard to the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims.

3) 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.

4) The matters giving rise to refusal of an application except in special circumstances.

5) Procedural matters to expedite the making of an award.

3 Fundamentally, the first terms of reference seek answers to the question of what changes should be made to the VOCAA to better assist victims of family violence rebuild their lives and recover?

Supplementary terms of reference

4 The supplementary terms of reference expand the Commission’s review to consider the operation and effectiveness of the VOCAA and the Victims of Crime Assistance Tribunal (VOCAT) for all victims, including family violence victims, in achieving the purposes of the VOCAA.

5 The supplementary terms of reference ask the Commission to bear in mind that a state-funded financial assistance scheme for victims should seek to achieve outcomes for victims that:

• are fair, equitable and timely

• are consistent and predictable

• minimise trauma for victims and maximise the therapeutic effect for victims.

6 The Commission is also asked to bear in mind that a state-funded financial assistance scheme must also be efficient and sustainable for the state.

7 In particular, the Commission is asked to consider whether:

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

2) The VOCA Act recognises the appropriate people as victims.

3) The tests for eligibility for assistance and the evidence required to meet those tests can be simplified to avoid unnecessary or disproportionate costs being incurred.

4) The definition of ‘act of violence’, the time limits, categories of assistance and structure and timing of awards are appropriate and are adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime.

5) The basis of the formula in section 8A of the VOCA Act used to quantify special financial assistance is the most appropriate way to calculate the amount payable by the state for harm arising from crime.

6) It is appropriate and fair to award assistance to aid recovery in exceptional circumstances (as allowed by section 8 of the VOCA Act) and whether there are other ways to promote the recovery of victims from the effects of crime.

7) 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.

8) Any processes, procedures or requirements under the VOCA Act 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 The supplementary terms of reference significantly expand the scope of the Commission’s review. In particular the question of other models at matter eight above necessitates the consideration of the existing scheme as a whole, not just in relation to matters of delay. This is discussed further below.

Consideration of the first terms of reference

Should the eligibility test be expanded to include non-criminal family violence?

9 Matter 1 of the first terms of reference ask the Commission to consider ‘the eligibility test and whether this should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury’

10 Eligibility is considered in Chapters 5 and 12. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses relating to eligibility. Chapter 12 discusses the eligibility test and associated matters, including the definitions of victim, criminal act and injury. In this chapter, the Commission considers whether eligibility should be expanded to include non-criminal acts, including non-criminal forms of family violence.

11 While the Commission acknowledges the significant impact that non-criminal forms of violence may have on victims, the Commission nonetheless concludes that providing assistance to victims of non-criminal violence, including non-criminal forms of family violence, would be inconsistent with the purpose of state-funded financial assistance schemes for victims of crime which aim to assist victims of criminal acts. Accordingly, the Commission considers that a state-funded financial assistance scheme for victims of crime should reflect offences in the criminal law and that it is a matter for parliament to determine what type of conduct constitutes a criminal offence.

12 However, to bring the proposed Act in line with changes to the law and community expectations, the Commission recommends that the range of criminal offences covered by the proposed scheme should be expanded to include all sexual offences, certain serious property offences and a range of additional offences that occur in the context of family violence that are not offences against the person. The Commission also recommends that the proposed Act replace the term ‘act of violence’ with ‘criminal act’ to better reflect the range of offences to be included in the proposed scheme and that only criminal conduct is included.

Categories and quantum of awards—the cumulative impact of family violence

13 Matter 2 of the first terms of reference ask the Commission to, ‘within the total financial assistance currently available, have regard to the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims’.

14 Assistance available is considered in Chapters 5 and 13. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses to matters relating to assistance available under the existing scheme.

15 Chapter 13 discusses stakeholder concerns with the existing structure and quantum of awards under the VOCAA. Of particular relevance to this matter specified in the terms of reference, the Commission discusses:

• the current provision in the VOCAA enabling VOCAT to award in ‘exceptional circumstances’ an amount for other expenses actually incurred or reasonably likely to be incurred to assist in the primary victim’s recovery. The Commission considers that these awards may disadvantage family violence victims because ‘exceptional circumstances’ may not always apply in family violence situations because VCAT has interpreted ‘exceptional circumstances’ to mean ‘unusual, special, out of the ordinary’.

• Whether special financial assistance sufficiently takes into account the cumulative harm of individual acts of violence as part of a pattern of abuse in a family violence context.

16 The Commission recommends that the current categories of award be abolished and replaced with six ‘streams of assistance’—immediate needs, funeral expenses, counselling expenses, practical assistance, recovery payments and recovery plans and recognition.

17 To address issues relating to the VOCAA not sufficiently having regard to the cumulative impact of family violence, the Commission recommends that under the proposed Act, the VOCAA categories of ‘special financial assistance’ and ‘recovery expenses’ be consolidated into a new, flexible stream of assistance called ‘Recovery payments and plans’. The new stream of assistance would be available to all victims of crime, including all eligible victims of family violence, and when determining the amount of assistance to be provided under recovery payments/plans, decision makers under the proposed scheme would be required to consider whether the criminal act occurred in the context of a pattern of abuse, including family violence, as defined in the Family Violence Protection Act 2008 (Vic). This would enable non-criminal forms of abuse—including non-criminal family violence—and the cumulative impact of such violence, to effectively operate as an ‘uplift’ on the amount of a recovery payment.

Perpetrator notification

18 Matter 3 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’.

19 VOCAT’s ability to give notice of the time and place for a VOCAT hearing to any other person whom the Tribunal considers to have a legitimate interest in the matter is considered in Chapters 5, 6, 10 and 14. Chapter 5 outlines issues identified in the consultation papers, relevant case law and stakeholder responses.

20 Chapter 6 considers the current law in relation to alleged perpetrator notification and appearance provisions under the VOCAA and the effects of such provisions on victim safety and wellbeing. It notes that the significant effects are unlikely to be ameliorated through legislative or procedural protections. The Commission also considers that alleged perpetrators do not have a legal interest in the matter of state-funded financial assistance to a victim of crime that needs to be meet by matters of procedural fairness. This is because such a decision has no bearing on other legal matters. The Commission considers that an alleged perpetrator’s interest can be categorised, in the context of state-funded financial assistance as a reputational interest rather than a legal interest. Accordingly, the Commission proposes that perpetrator notification and appearance provisions be removed, and that this reflects a trauma-informed approach that prioritises victims’ safety and wellbeing.

21 Chapter 10 discusses the proposed scheme’s approach to hearings. The Commission recommends that VOCAT hearings be replaced by victim conferences—an ‘opt-in’ private hearing providing victims with an opportunity for validation and acknowledgement by the state.

22 The Commission considers that as victim conferences would be ‘opt-in’, and are not for the purposes of determining any application or the amount of any award, perpetrator notification and appearance provisions would not apply to victim conferences under the proposed Act. Although the Commission acknowledges concerns raised by some stakeholders that alleged perpetrators should have the opportunity to ‘defend themselves’, the Commission considers these concerns are no longer applicable under the proposed scheme. This is because, in contrast to hearings under the VOCAA, victim conferences under the proposed scheme would not be for the purpose of fact finding or making financial assistance determinations.

23 Chapter 14 further discusses the intended approach under the proposed scheme, noting that victim conferences would not form part of the application process and therefore, would not give rise to any actual or perceived issues of procedural fairness.

Refusal of an application except in special circumstances

24 Matter 4 of the first terms of reference ask the Commission to consider ‘the matters giving rise to refusal of an application except in special circumstances’.

25 Decision making under the existing scheme is considered in Chapters 5 and 15. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses. Chapter 15 discusses factors to be considered by the decision maker under the proposed Act when determining an application, including refusal of applications.

26 The VOCAA requires VOCAT to refuse an award of assistance, unless there are special circumstances, if VOCAT is satisfied that an act of violence was not reported to police within a reasonable time; or the applicant failed to provide reasonable assistance to any person or body engaged in the investigation, arrest or prosecution of the perpetrator (the investigatory or prosecutorial body).

27 Having regard to stakeholder concerns about refusal of awards under the VOCAA, the commission considers that the current requirements are not consistent with the purpose of the proposed Act—to assist victims of crime in their recovery. Accordingly, the Commission recommends that there be no mandatory requirement for a victim to make a report to police or assist with police or prosecution. Instead, under the proposed Act, a police report may be used by an applicant to assist them to meet evidentiary requirements for scheme eligibility.

Procedural matters to expedite the making of an award

28 Matter 5 of the first terms of reference ask the Commission to consider ‘procedural matters to expedite the making of an award’. Additionally, and as outlined below, the supplementary terms of reference require the Commission to bear in mind that a state-funded financial assistance scheme should be timely, and to consider whether there are any processes, procedures or requirements under the VOCAA which cause unnecessary delay to the provision of assistance to victims of crime.

29 Accordingly, timeliness of awards is a significant focus of the report and is considered in Chapters 5, 7, 8, 9, 11 and 15.

30 Chapter 5 outlines issues identified in the consultation papers and stakeholder responses to matters relating to timeliness. Chapters 7 and 8 discuss the importance of timely decision making in considering the effectiveness of VOCAT and other models of state-funded financial assistance. In Chapter 8, the Commission considers that a court-based model may not be able to provide the timeliest response to victims of crime because of resource constraints and the prioritisation of other court business. Accordingly, the Commission recommends that the most effective model to deliver Victoria’s state-funded financial assistance scheme is an independent and dedicated decision maker.

31 In Chapter 9, the Commission considers that it would be appropriate for the proposed scheme to be administered by Victoria’s Victims of Crime Commissioner. In considering the proposed expansion of the Office of the Victims of Crime Commissioner, the Commission notes the importance of appropriate resourcing of the Commissioner’s office, and delegation powers to ensure the proposed scheme provides a timely response to victims.

32 Timeliness of decision making is also considered in Chapters 11 and 15. In Chapter 11, the Commission recommends that there no longer be an objective in the proposed Act that the scheme be a scheme of ‘last resort’ because such an objective has the potential to cause substantial delay in decision making and would require some victims to exhaust other avenues that may be impractical, complex and lengthy.

33 In Chapter 15, the Commission notes that while a transition to an administrative model would likely to lead to improvements in overall timeliness of decision making, the Commission considers further safeguards should be incorporated into the proposed Act to ensure timeliness of awards for victims of crime. Accordingly, the Commission recommends that the scheme decision maker be required to act expeditiously in the determination of applications and to support this, that regulations should provide for time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made.

Consideration of the supplementary terms of reference

‘Reference objectives’

34 The supplementary terms of reference require the Commission ‘to bear in mind that a state-funded financial assistance scheme for victims should seek to achieve outcomes for victims that:

• are fair, equitable and timely

• consistent and predictable

• minimise trauma for victims and maximise the therapeutic effect for victims

• efficient and sustainable for the state.’

35 The supplementary terms of reference require the Commission to bear in mind that a ‘state-funded financial assistance scheme must also be efficient and sustainable for the state’.

36 The above matters—along with consideration of whether the scheme is simple and easy for victims to understand and does not require victims to have legal support in all circumstances—are referred to throughout this report as the ‘reference objectives’. The reference objectives provide the Commission with its guiding framework for assessing:

• the operation and effectiveness of the existing scheme

• whether there are other models of state-funded financial assistance that would more effectively deliver assistance, as required by the supplementary terms of reference.

37 The reference objectives are discussed in Chapters 7 and 8. Having regard to stakeholder views on the reference objectives, Chapter 7 concludes that there is a need for a new approach.

38 Chapter 8 considers two different approaches for reform—a reformed judicial model, as proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria of Victoria in their joint submission, and an administrative model. Having regard to the reference objectives, Chapter 8 concludes that although the reforms proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria of Victoria in their joint submission would be significant reforms, the more effective model to deliver state-funded financial assistance is an administrative model led by an independent, dedicated and specialised decision maker.

Can the VOCAA be simplified?

39 Matter 1 of the supplementary terms of reference ask the Commission to consider whether ‘the VOCA Act can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support’.

40 In Chapter 8, the Commission notes stakeholder concerns that the VOCAA is complex and outdated. The Commission recommends that the VOCAA should be repealed and replaced with a new Act which establishes the proposed scheme and incorporates further legislative reforms recommended in the report.

41 In Chapters 10, 12, 13 and 14, the Commission outlines a number of components of the proposed scheme, along with technical and procedural aspects of the proposed new Act, which aim to simplify the process for victims by:

• providing for both case management and legal representation under the proposed scheme

• establishing a new, simplified and comprehensive definition of ‘victim’, removing the need for victims to identify as ‘primary’, ‘secondary’ or ‘related’ victims

• expanding the definition of ‘injury’ so that a victim is not required to demonstrate they have a ‘mental illness or disorder’

• removing the requirement for certain victims to prove injury and simplifying the causation requirement under the proposed Act

• introducing new simplified streams of assistance defined in plain language

• removing a number of the VOCAA’s ‘character and behaviour’ considerations relating to the making of awards and determining the amount of awards, simplifying the decision making process for both victims and decision makers under the proposed scheme, and

• clarifying and simplifying provisions relating to the proposed scheme’s interaction with other financial assistance schemes and the refund of awards.

Does the VOCAA recognise the appropriate people as victims?

42 Matter 2 of the supplementary terms of reference ask the Commission to consider whether ‘the VOCA Act recognises the appropriate people as victims’.

43 This matter relates to the purpose of the VOCAA; eligibility under the VOCAA; eligibility for certain types of assistance under the existing scheme; and refusal or reduction of awards based on character and behaviour considerations. These matters are discussed in Chapters 11, 12, 13 and 15.

44 In Chapter 11, the Commission considers that the VOCAA objective of paying ‘certain victims’ financial assistance as a symbolic expression by the state of the community’s sympathy can result in a subjective assessment of whether a victim is an ‘appropriate’ or ‘worthy’ victim. The Commission recommends that the proposed Act not include such an objective and that all eligible victims should be entitled to assistance under the proposed Act according to the specified eligibility criteria.

45 As outlined above, Chapter 12 discusses the eligibility test and recommends that under the proposed Act, a person is eligible for financial assistance where the person is a victim of a criminal act and suffers an injury as a result of that criminal act.

46 Chapter 13 discusses assistance available under the VOCAA and notes stakeholder concerns regarding both the existing structure and quantum of awards under the VOCAA. In particular, Chapter 13 notes that some existing categories of award under the VOCAA—like special financial assistance and awards for ‘recovery expenses’—fail to recognise some victims. The Commission recommends that the proposed Act introduce new simplified streams of assistance. In particular, the Commission recommends that the VOCAA awards of ‘recovery expenses’ and ‘special financial assistance’—which currently exclude some victims—be replaced with a single stream of assistance available to all victims eligible under the proposed Act called ‘recovery payments and plans’.

47 In Chapter 15, the Commission discusses the current VOCAA factors resulting in refusal of awards, or the reduction of awards, including consideration of whether a victim has reported a matter to police or their broad character and behaviour ‘at any time’. The Commission agrees with stakeholder concerns that such factors result in subjective assessments of whether victims are ‘innocent’ or ‘deserving’ and recommends that the proposed Act not replicate the VOCAA provisions. The Commission recommends that the proposed decision maker limit consideration of an applicant’s behaviour to consideration of criminal behaviours with a nexus between the criminal act the subject of the application.

Can the tests for eligibility and the evidence required be simplified?

48 Matter 3 of the supplementary terms of reference ask the Commission to consider whether ‘the tests for eligibility for assistance and the evidence required to meet those tests can be simplified to avoid unnecessary or disproportionate costs being incurred’.

49 Eligibility is considered in Chapters 5 and 12. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses relating to eligibility. Chapter 12 discusses the eligibility test and associated matters, including the definitions of victim, criminal act and injury.

50 Chapter 12 discusses the eligibility test and recommends that under the proposed Act, a person is eligible for financial assistance where the person is a victim of a criminal act and suffers an injury as a result of that criminal act. Under the proposed Act, the Commission recommends removing the requirement for certain victims to prove injury and simplifying the causation requirement.

51 Chapter 14 discusses the evidence required to establish eligibility. Having regard to stakeholder concerns that some victims may find it difficult to provide evidence of a criminal act, the Commission recommends that an applicant should be able to provide a broader range of documentary evidence under the proposed Act to establish that they were the victim of a criminal act. The Commission also recommends that the evidentiary requirements for proof of injury should be broadened to enable a wider range of documentation to be submitted to prove injury. To further simplify the process for victims, the Commission recommends that the proposed scheme’s case managers should assist victims with collecting documentary evidence.

The definition of ‘act of violence’, time limits, categories of assistance, structure and timing of awards

52 Matter 4 of the supplementary terms of reference ask the Commission to consider whether ‘the definition of “act of violence”, the time limits, categories of assistance and structure and timing of awards are appropriate and are adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime’. These matters span a number of chapters as follows:

• Chapter 12—eligibility test and the definition of ‘act of violence’. The Commission considers whether the definition of ‘act of violence’ should be amended to recognise non-criminal acts such as some forms of family violence. While acknowledging the significant impact that non-criminal forms of violence may have on victims, the Commission concludes that including non-criminal acts in the proposed scheme would undermine the fundamental purpose of state-funded financial assistance which is to assist victims of criminal acts. However, to bring the proposed Act in line with changes to the law and community expectations, the Commission recommends that the range of criminal offences covered by the proposed scheme should be expanded to include all sexual offences, certain serious property offences and a range of additional offences that occur in the context of family violence (that are not offences against the person). The Commission also recommends that the proposed Act replace the term ‘act of violence’ with ‘criminal act’ to better reflect the range of offences to be included in the proposed scheme and that only criminal offences are covered.

• Chapters 5 and 14—time limits. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses relating to eligibility. Chapter 14 notes stakeholder concerns about the disadvantages experienced by some victim cohorts as a result of the two-year application time limit under the VOCAA. To address these concerns, the Commission recommends increasing the time limit from two to three years for all victims, increasing the time limit further for some victims and abolishing the time limit entirely for others. Additionally, the proposed scheme decision maker would be able to consider applications made out-of-time, having regard to a range of expanded factors.

• Chapter 13—categories and structure of awards. The Commission notes stakeholder concerns regarding the categories and structure of awards under the VOCAA and, as outlined above, recommends that the current categories of award be abolished and replaced with six ‘streams of assistance’—immediate needs, funeral expenses, counselling expenses, practical assistance, recovery payments and recovery plans and recognition.

• Chapters 5, 13, 15—timing of awards. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses relating to timeliness of awards. Chapter 13 discusses assistance available under the VOCAA and in recommending new streams of assistance, the Commission highlights the importance of providing assistance for victims’ urgent needs by creating a new stream of assistance for ‘immediate needs’. In Chapter 15, the Commission notes that while a transition to an administrative model would likely lead to improvements in overall timeliness of decision making, the Commission considers further safeguards should be incorporated into the proposed Act to ensure timely decision making. Accordingly, the Commission recommends that the scheme decision maker should be required to act expeditiously in the determination of applications and to support this, regulations should provide for time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made.

Is the special financial assistance formula appropriate?

53 Matter 5 of the supplementary terms of reference ask the Commission to consider whether ‘the basis of the formula in section 8A of the VOCA Act used to quantify special financial assistance is the most appropriate way to calculate the amount payable by the state for harm arising from crime’.

54 Chapter 13 discusses assistance available and notes a number of stakeholder concerns about the way in which the special financial assistance categories currently operate.

55 The Commission recommends that the current categories of award be abolished and replaced with six ‘streams of assistance’—immediate needs, funeral expenses, counselling expenses, practical assistance, recovery payments / plans and recognition. Accordingly, special financial assistance and its associated formulas would not exist under the proposed Act.

56 Under the proposed Act, the decision maker would determine the amount of a recovery (lump sum) payment according to a range of factors including whether the criminal act was directly perpetrated against the victim; the nature of the victim’s injury; the vulnerability of the victim and whether the alleged perpetrator was in a position of power, influence or trust; whether the criminal act occurred in the context of a pattern of abuse such as family violence of child abuse; and whether there were a series of related criminal acts.

Is it appropriate to award assistance in exceptional circumstances?

57 Matter 6 of the supplementary terms of reference ask the Commission to consider whether ‘it is appropriate and fair to award assistance to aid recovery in exceptional circumstances (as allowed by section 8 of the VOCA Act) and whether there are other ways to promote the recovery of victims from the effects of crime’.

58 Assistance available is considered in Chapters 5 and 13. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses to matters relating to eligibility. Chapter 13 discusses assistance available under the VOCAA and the proposed Act.

59 As outlined above, under the VOCAA, VOCAT may award in ‘exceptional circumstances’, an amount for other expenses actually incurred or reasonably likely to be incurred to assist in the primary victim’s recovery (‘recovery expenses’). VCAT has interpreted ‘exceptional circumstances’ to mean ‘unusual, special, out of the ordinary’.

60 In reviewing the current law in relation to assistance available under the VOCAA, the Commission considers that the ‘recovery expenses’ provisions of the existing scheme, which limit the award of such expenses to where there are ‘exceptional circumstances’, create uncertainty. In particular, the Commission notes stakeholder concerns about the lack of clarity regarding the expenses covered; inconsistency as a result of VOCAT’s broad discretion; and the narrow interpretation of ‘exceptional circumstances’. Taken together, the Commission concludes that the practical operation of the ‘recovery expenses’ provision is that it unfairly and inappropriately limits assistance to aid recovery.

61 Accordingly, the Commission recommends that under the proposed Act, the existing ‘special financial assistance’ and ‘recovery expenses’ awards should be consolidated into a new, flexible stream of assistance called ‘Recovery payments and plans’ available to all victims of crime which would be determined according to a range of factors.

Is it appropriate for alleged perpetrators to be notified or called to give evidence?

62 Matter 7 of 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’.

63 As outlined above, this matter was also raised in the first terms of reference and was considered in Chapters 5, 6, 10 and 14. Chapter 5 outlines issues identified in the consultation papers and stakeholder responses relating to perpetrator notification.

64 Chapter 6 considers the current law in relation to alleged perpetrator notification and appearance provisions under the VOCAA and the effects of such provisions on victim safety and wellbeing. It notes that the significant effects are unlikely to be ameliorated through legislative or procedural protections. The Commission also considers that alleged perpetrators do not have a legal interest in the matter of state-funded financial assistance to a victim of crime that needs to be meet by matters of procedural fairness. This is because such a decision has no bearing on other legal matters. The Commission considers that an alleged perpetrator’s interest can be categorised, in the context of state-funded financial assistance as a reputational interest rather than a legal interest. Accordingly, the Commission proposes that perpetrator notification and appearance provisions be removed, and that this reflects a trauma-informed approach that prioritises victims’ safety and wellbeing.

65 Chapter 10 discusses the proposed scheme’s approach to hearings. The Commission recommends that VOCAT hearings be replaced by victim conferences, an ‘opt-in’ private hearing providing victims with an opportunity for validation and acknowledgement by the state.

66 As victim conferences would be ‘opt-in’ only, and not for the purposes of determining any application or the amount of any award, the Commission considers that perpetrator notification and appearance provisions should not apply to victim conferences under the proposed Act. Although the Commission acknowledges concerns raised by some stakeholders that alleged perpetrators should have the opportunity to ‘defend themselves’ at a hearing, the Commission considers these concerns are no longer applicable under the proposed scheme. In contrast to hearings under the VOCAA, victim conferences under the proposed scheme would not be for the purpose of fact finding or making financial assistance determinations.

67 Chapter 14 further reiterates the intended approach under the proposed scheme in which victim conferences would no longer form part of the application or decision making process, as is the case under the existing scheme and accordingly, would not give rise to any actual or perceived issues of procedural fairness for alleged perpetrators.

Are there other models that would more effectively deliver assistance?

68 Matter 8 of the supplementary terms of reference ask the Commission to consider whether ‘any processes, procedures or requirements under the VOCA Act 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’.

69 In the Commission’s view, the question of other models raised in the supplementary terms of reference necessitates a consideration of the existing scheme as a whole, not just in relation to matters of delay. This holistic approach is confirmed by the broad approach of the supplementary terms of reference, which ask the Commission to consider the operation and effectiveness of the VOCAA and VOCAT for all victims.

70 Matters relating to whether there are other models of state-funded financial assistance that would more effectively deliver assistance are considered in Chapters 7 and 8.

71 In Chapter 7, the Commission considers whether the existing scheme meets the objectives identified in the terms of reference. The Commission considers that while some victims may experience therapeutic outcomes, the existing scheme does not maximise therapeutic effects, nor minimise trauma, for all victims of crime because some victims can be distressed and traumatised by the adversarial nature of the VOCAT process, by how hearings may be conducted and by delays experienced in receiving awards. The Commission also considers that the existing scheme is not efficient and sustainable, timely, consistent and predictable, nor is it simple or easy to understand. Accordingly, the Commission considers that on balance, there are other models that would more effectively deliver assistance.

72 Chapter 8 considers two different approaches for reform—a reformed judicial model, as proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria of Victoria in their joint submission, and administrative models. Chapter 8 concludes that although the reforms proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria of Victoria in their joint submission would be significant reforms, the more effective model to deliver state-funded financial assistance is an administrative model led by an independent, dedicated and specialised decision maker.