Victims of Crime Assistance Act 1996: Report (html)

Posted on September 19, 2018

Recommendations

The recommendations listed below appear in Chapters 8–19 of this report.

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

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.

2 The Victims of Crime Assistance Act 1996 (Vic) should be repealed and replaced with an Act establishing the new state-funded financial assistance scheme and incorporating the legislative reforms recommended in this report.

Chapter 9. The decision maker in the proposed victims of crime financial assistance scheme

3 The proposed Act should establish the scheme’s decision maker as the Victims of Crime Commissioner, appointed pursuant to section 7 of the Victims of Crime Commissioner Act 2015 (Vic).

4 Section 7 of the Victims of Crime Commissioner Act 2015 (Vic) should be amended to provide that the Victims of Crime Commissioner, as the scheme decision maker, should be appointed following public advertisement, and should be a person of appropriate standing and be suitably qualified.

5 The functions and powers of the Victims of Crime Commissioner should be expanded to include the functions and powers necessary to administer the proposed Act and scheme. These functions and powers could either be expressly provided in the Victims of Crime Commissioner Act 2015 (Vic) by amendment to section 13, or as a provision of the proposed Act.

6 The proposed Act should provide that the functions and powers of the scheme decision maker are to:

(a) conduct victim conferences for the purposes of hearing and acknowledging, on behalf of the state, the victim and the impact of the criminal act on the victim

(b) provide eligible victims with a recognition statement for the purposes of acknowledging, on behalf of the state, the victim and the impact of the criminal act

on the victim

(d) receive applications for financial assistance

(e) decide applications for financial assistance

(f) pay amounts of financial assistance

(g) review decisions made by other scheme staff

(h) administer the repayment and recovery processes for payments of financial assistance made

(i) provide information to victims about the Act and the support services and assistance available to assist recovery from the criminal act

(j) publish guidance materials and resources for victims, support service providers and legal practitioners in relation to the Act

(k) conduct education and training, public awareness activities and research in relation to the Act

(l) collect and publish annual data and information in relation to the operation of the Act.

7 The proposed Act should provide that any person in exercising any functions or powers required under the Act must have regard to the purpose and objectives of the Act, its guiding principles, and the Victims Charter Act 2006 (Vic).

8 The Victims of Crime Commissioner should be provided with the staffing and funding necessary to properly perform their functions, including the function of administering the new state-funded financial assistance scheme, consistent with section 16 of the Victims of Crime Commissioner Act 2015 (Vic).

9 The proposed Act should provide that the scheme decision maker be supported by:

(a) deputy decision makers, appointed by the Governor-in-Council on the recommendation of the Attorney-General following public advertisement, who are suitably qualified and are subject matter specialists of appropriate standing

(b) appropriately qualified case managers

10 The proposed Act should provide that (other than the power of delegation) the scheme decision maker may delegate:

(a) the power to conduct victim conferences and to provide recognition statements to deputy decision makers only

(b) any other functions or powers under the Act, with the exception of the power to conduct victim conferences and to provide recognition statements, to any appropriately qualified member of staff.

Chapter 10. Key components of the proposed victims of crime financial assistance scheme

11 The proposed Act should provide that all eligible victims are entitled to receive:

(a) a comprehensive written statement of reasons for a decision

(b) a recognition statement, signed by the scheme decision maker or a deputy decision maker on behalf of the state, which acknowledges the effects of the criminal act on the victim and expresses the state’s condolences.

12 The form and content of the proposed recognition statement should be developed in consultation with the Victims of Crime Consultative Committee, to ensure the statement provides appropriate recognition to victims.

13 The proposed Act should provide that all eligible victims are entitled to request, and to have, a private victim conference with the scheme decision maker or a deputy decision maker.

14 The proposed Act should provide that:

(a) the purpose of a victim conference is to provide a respectful forum for victims to be acknowledged and heard, and for the impacts of the criminal act on the victim to be properly acknowledged by the scheme decision maker on behalf of the state, and that the purpose is not to determine any application, or the amount of any award

(b) victim conferences must be held in private, and only persons who are authorised by the scheme decision maker may be present during the victim conference

(c) victim conferences should be conducted in a trauma-informed way that aims to affirm victims’ experiences, while minimising interactions or processes that could increase victims’ trauma, including in deciding the time, place, structure or format of the conference

(d) victim conferences should be conducted in a culturally appropriate safe space, with sufficient flexibility for victims to share their story, with victims provided the opportunity to:

(i) discuss the impacts of the crime

(ii) read aloud a Victim Impact Statement or other written statement

(iii) have a support person/s present

(iv) be represented by a legal representative

(v) at victims’ request, have a single victim conference with multiple victims in attendance.

15 The proposed Act should provide that:

(a) victims participating in a victim conference are not giving evidence

(b) statements made and documents produced at a victim conference are not admissible in evidence in any civil or criminal proceedings, except as expressly provided for in the Act.

16 The proposed Act should provide that case management is an essential component of the scheme, and that case management includes providing assistance to victims, or their representatives, in meeting scheme requirements.

17 The proposed Act should provide that:

(a) in applying for assistance victims have a right to be represented by a legal practitioner

(b) a legal practitioner is not entitled to recover from the applicant any costs in respect of a victim’s application for assistance

(c) the scheme decision maker may award a legal practitioner the reasonable legal costs of, and incidental to, a victim’s application for assistance

(d) to assist the scheme decision maker in determining awards for legal costs, guidelines should be developed and be publicly available.

18 The proposed Act should provide that the scheme decision maker may, where requested by a victim, refer the victim to appropriate restorative justice initiatives.

19 The proposed Act should provide for the establishment of specialised case management and decision making.

Chapter 11. The purpose, objectives and principles of the proposed Act for victims of crime financial assistance

20 The proposed Act should provide that the purpose of the Act is to establish a scheme to assist victims in their recovery from a criminal act.

21 The proposed Act should provide that the objectives of the Act are to:

(a) recognise, on behalf of the state, victims and the impacts of a criminal act on a victim, through the provision of a respectful forum for victims to be heard and to have their experiences properly acknowledged by the state

(b) assist victims in their recovery from a criminal act through the provision of financial and other practical assistance

(d) enable victims to have recourse to financial assistance under the Act, noting such assistance is not intended to reflect the level of compensation that may be available at common law or otherwise.

22 The proposed Act should provide that in making any decision or taking any action under the Act, regard must be had to the following guiding principles:

(a) victim benefit—the Act and scheme are intended for the benefit of victims

(b) victims should be protected from undue trauma, intimidation or distress

(d) in recognition that victims’ needs may vary, the scheme should be flexible in the assistance provided.

Chapter 12. Eligibility for assistance under the proposed Act for victims of crime financial assistance

The eligibility test

23 The proposed Act should provide that a person is eligible for financial assistance where the person is a victim of a criminal act and they suffer an injury as a result of that criminal act.

Definition of victim

24 The proposed Act should define a victim as:

(a) a person against whom a criminal act was committed

(b) a person who was in a close personal relationship with a person who was injured or died as a result of the criminal act committed against them

(c) a person who was wholly or substantially dependent on the income of a person who was injured or died as a result of a criminal act, at the time of that person’s injury or death

(d) a child of a person who was injured or died as a result of a criminal act and who would have been wholly or substantially dependent on the injured or deceased person’s income if the child had been born before the person was injured or died

(e) a person who witnessed a criminal act

(f) a person under the age of 18 years who heard or was otherwise exposed to a criminal act

(g) a person who attempted to assist, aid or rescue another person against whom they reasonably believed a criminal act was committed, or was going to be committed, whether the attempt to do so occurred before, during or immediately after the criminal act

(h) a person who tried to arrest someone whom they believed on reasonable grounds had committed a criminal act, or

(i) a person who prevented or tried to prevent the commission of a criminal act.

25 For the purposes of the proposed definition of victim, the proposed Act should provide that a person (‘the relevant person’) was in a close personal relationship with a person against whom a criminal act was committed (‘the direct victim’), where the relevant person, at the time of the criminal act:

(a) was married to the direct victim

(b) was the domestic partner of the direct victim, as defined in section 9 of the Family Violence Protection Act 2008 (Vic)

(d) was the parent, guardian or step-parent of the direct victim

(e) was the child, including by guardianship, or step-child of the direct victim

(f) was the sibling or step-sibling of the direct victim, or

(g) regarded the direct victim as a family member, and the scheme decision maker considers it reasonable to have regarded the direct victim as such, having regard to the circumstances of the relationship.

26 For the purposes of the definition of close personal relationship, the proposed Act should define an intimate partner as a person who had an intimate relationship with a direct victim at the time of the criminal act, whether they were members of the same household or not, having regard to the circumstances of the relationship.

Defining a criminal act

27 The proposed Act should define a criminal act as an act or omission that has occurred in the state of Victoria and which would constitute:

(a) an offence, punishable on conviction by imprisonment, that involved an assault on, or injury or a threat of injury to, a person

(b) any sexual offence, including those contained in the Summary Offences Act 1966 (Vic)

(d) an offence of arson, aggravated burglary, home invasion, or aggravated home invasion under the Crimes Act 1958 (Vic), regardless of whether the victim had contact with the offender at the time of the offence

(e) any one of the following offences:

(i) contravention of a family violence intervention order under the Family Violence Protection Act 2008 (Vic)

(ii) contravention of a family violence intervention order intending to cause harm or fear for safety under the Family Violence Protection Act 2008 (Vic)

(iii) persistent contravention of family violence intervention notices and orders under the Family Violence Protection Act 2008 (Vic)

(iv) destroying or damaging property under the Crimes Act 1958 (Vic)

(v) threats to destroy or damage property under the Crimes Act 1958 (Vic)

(vi) possessing anything with intent to destroy or damage property under the Crimes Act 1958 (Vic)

(vii) burglary under the Crimes Act 1958 (Vic)

(viii) theft under the Crimes Act 1958 (Vic)

(ix) obtaining property by deception under the Crimes Act 1958 (Vic)

(x) obtaining financial advantage by deception under the Crimes Act 1958 (Vic)

(xi) blackmail under the Crimes Act 1958 (Vic)

(xii) taking or using a vehicle without consent of the owner under the Summary Offences Act 1966 (Vic)

(xiii) obscene, indecent, threatening language and behaviour in public under the Summary Offences Act 1966 (Vic)

(xiv) intentionally or recklessly causing a bushfire under the Crimes Act 1958 (Vic)

where that offence occurred in the context of ‘family violence’ as defined by the Family Violence Protection Act 2008 (Vic)

(f) an offence of conspiracy to commit, incitement to commit or attempting to commit any of the above offences

(g) any one of the above offences, if the person had not been incapable of being criminally responsible for it on account of age, mental impairment or other legal incapacity preventing them from having a required fault element, or the existence of any other lawful defence.

28 The proposed Act should provide that additional offences may be prescribed by regulation.

29 Government should conduct a review to determine whether the offences contained in the Sex Work Act 1994 (Vic) and any other offences that may have a significant physical and/or psychological impact on the victim should be recognised by the proposed Act.

Defining injury

30 The proposed Act should define injury as:

(a) physical harm

(b) psychological or psychiatric harm

(d) any combination of (a), (b) or (c).

Proof of injury

31 The proposed Act should provide that an applicant must provide evidence that they have suffered an injury as a result of the criminal act, except where the applicant:

(a) was the victim of a criminal act that would constitute a sexual offence

(b) was the victim of a criminal act that occurred in the context of family violence, as defined by the Family Violence Protection Act 2008 (Vic), or

(c) witnessed, heard or was otherwise exposed to any of the above criminal acts and was under the age of 18 at the time of the exposure.

Causation

32 The proposed Act should provide that where an applicant is required to prove injury, it is sufficient if the applicant can establish that the victim’s injury was a result of the criminal act.

Chapter 13. Assistance available under the proposed Act for victims of crime financial assistance

New streams of assistance

33 The proposed Act should provide that eligible victims may apply for the following streams of assistance:

(a) immediate needs

(b) funeral expenses

(d) practical assistance

(e) recovery payments and recovery plans—lump sum payments to assist in the victim’s recovery

(f) recognition:

(i) recognition statement

(ii) victim conference (at victim’s request)

(iii) pathway to restorative justice (at victim’s request).

Immediate needs

34 The proposed Act should provide that an award for immediate needs:

(a) may be made where the scheme decision maker considers it appropriate to do so

(b) is final and is not required to be refunded where a victim’s application/s for other streams of assistance is unsuccessful

(c) may be taken into account in determining the amount of assistance to award a victim under other streams of assistance, where a victim’s application/s for such other streams is successful.

Funeral expenses

35 The proposed Act should provide that an award for funeral expenses may be made by the scheme decision maker to any person who has incurred, or will incur, the funeral expenses of a person who has died as a result of a criminal act.

36 To assist the scheme decision maker in determining awards for funeral expenses, guidelines should be developed and should be made publicly available.

Counselling

37 The proposed Act should provide that an award for the reasonable costs of counselling may be made by the scheme decision maker:

(a) on initial application, for up to 20 counselling sessions

(b) in exceptional circumstances, as determined on application, for such further counselling sessions as are required.

38 To assist the scheme decision maker in determining awards for counselling, guidelines should be developed and should be made publicly available.

Practical assistance

39 The proposed Act should provide that an award for practical assistance may be made by the scheme decision maker for the following expenses incurred, or reasonably likely to be incurred:

(a) health-related expenses

(b) housing-related expenses, including relocation and resettlement expenses

(d) financial support, including loss of earnings, dependency payments and financial counselling

(e) education, re-training and return-to-work expenses

(f) expenses for lost or damaged clothing worn at the time of the criminal act

(g) other expenses reasonably incurred to access assistance provided under the proposed Act, including travel and childcare expenses, and to attend justice-related appointments.

Recovery payments and recovery plans

40 The proposed Act should provide that a lump sum recovery payment may be awarded by the scheme decision maker up to a specified maximum amount as determined according to the victim’s circumstances, including:

(a) whether the criminal act was directly perpetrated against the victim

(b) the nature of the victim’s injury, including whether the criminal act resulted in the victim suffering a serious injury or serious disease

(c) whether the criminal act resulted in the death or serious injury of a person with whom the victim was in a close personal relationship

(d) whether the victim was dependent on a person who died or was seriously injured as a result of a criminal act

(e) whether the victim was particularly vulnerable at the time of the criminal act, including because of the victim’s age, or because they had a mental illness, cognitive impairment or disability

(f) whether the person who committed, or is alleged to have committed, the criminal act was in a position of power, influence or trust in relation to the victim

(g) whether the criminal act occurred in the context of a pattern of abuse, including a pattern of family violence, as defined in the Family Violence Protection Act 2008 (Vic), or child abuse, as defined in the Child Wellbeing and Safety Act 2005 (Vic)

(h) whether there was a series of related criminal acts

(i) whether the victim’s, or direct victim’s, involvement in any criminal activity was the primary reason that the criminal act that is the subject of the application was committed.

41 The proposed Act should provide that the scheme decision maker may, at the request of an applicant, or at the discretion of the scheme decision maker having regard to an applicant’s mental illness, cognitive impairment or disability, award a recovery payment in accordance with a recovery plan which:

(a) details how some or all of the award is to be used to assist the victim’s recovery

(b) requires the award sum the subject of the plan to be held in trust and administered by a scheme case manager in accordance with the plan for the victim’s benefit.

42 The proposed Act should provide that a recovery plan is mandatory for victims who are under the age of 18 at the time the award is made.

Amounts of assistance

43 The proposed Act should provide that the maximum amounts that can be awarded by the scheme decision maker should be prescribed as follows, and should be subject to indexation:

(a) the following maximum amounts:

(i) $5000 for immediate assistance

(ii) $15,000 for funeral expenses

(iii) $80,000 for practical assistance, with a cap of $20,000 for financial support

(iv) $20,000 for a recovery payment, or $25,000 for applicants who were the victim of two or more related criminal acts, or

(b) any such higher maximum amounts for any items in paragraph (a) as may be prescribed by regulation.

44 In making any award for expenses, the proposed Act should provide that the scheme decision maker must be satisfied that the expenses incurred, or reasonably likely to be incurred, are reasonable.

45 To assist the scheme decision maker in determining whether an expense is reasonable, guidelines should be developed and should be made publicly available.

46 The proposed Act should not include any collective cap on assistance for multiple victims whose claims relate to the same criminal act.

Related criminal acts

47 The proposed Act should:

(a) provide that where an applicant is the victim of ‘related criminal acts’ the scheme decision maker must treat the related criminal acts as a single criminal act for the purposes of making any award of assistance

(b) include a definition of the term ‘related criminal acts’ modelled on the definition in section 4 of the Victims of Crime Assistance Act 1996 (Vic).

48 To assist the scheme decision maker in determining whether two or more criminal acts are related criminal acts, guidelines should be developed and should be made publicly available.

Payment of awards

49 The proposed Act should provide that the scheme decision maker has the discretion to make all or part of any award:

(a) payable to the applicant or to any other person for the applicant’s benefit

(b) as a lump sum payment, a payment by instalments or a payment partly as a lump sum and partly in instalments.

Additional awards of assistance

50 The proposed Act should provide that where a victim has received an award of financial assistance, they may apply to the scheme decision maker:

(a) for additional awards of assistance, without the need to re-establish eligibility:

(i) for adult victims, for a 10-year period following the date of their initial award of assistance, or

(ii) for victims who were under the age of 18 at the time of their initial award of assistance, for a 10-year period from the date that victim turns 18, and

(b) after the end of the applicable time period, for awards of assistance for additional health-related expenses, without the need to re-establish eligibility, where:

(i) the expenses relate to an injury suffered as a result of the criminal act that persists beyond the end of the 10-year period, or

(ii) the injury does not develop until after the end of the 10-year period.

51 The proposed Act should provide that in making an award for additional health-related expenses outside the applicable time period, the scheme decision maker must be satisfied that there are exceptional circumstances justifying the making of the award.

52 The proposed Act should provide that where a victim has received an award of financial assistance, they must be notified in writing that the applicable time period is due to expire, one year prior to that expiration date.

53 To assist the scheme decision maker in determining an application for additional health-related expenses lodged outside the applicable time period, including in determining whether there may be exceptional circumstances, guidelines should be developed and made publicly available.

Chapter 14. Making an application under the proposed Act for victims of crime financial assistance

How to make an application

54 The proposed Act should provide that an application for assistance must be made in writing in the specified form, supported by the required documentary evidence.

55 The proposed Act should provide that a victim may apply for any stream of assistance within the application time limits by completing the specified application form, and that multiple streams of assistance may be applied for using the same form.

56 The proposed Act should provide that the scheme decision maker may obtain, with the applicant’s consent, any information, evidence or documentation the scheme decision maker considers necessary to determine an application.

57 The proposed Act should provide that the application form:

(a) contain an authorisation for the scheme decision maker to obtain any information, evidence or documentation necessary to enable the determination of an application

(b) enable applicants to:

(i) list multiple criminal acts by the same perpetrator

(ii) indicate that the criminal act/s occurred in the context of a pattern of abuse and list a range of dates over which such abuse occurred

(c) require applicants to provide details of any assistance they have applied for, or may be eligible for, under any other scheme, and state the circumstances in which:

(i) an award of financial assistance, or eligibility for an award of financial assistance, under another scheme may reduce the amount of financial assistance a victim would otherwise be eligible for under the proposed Act

(ii) an award of financial assistance under the proposed scheme may be required to be refunded.

58 The proposed Act should provide that a victim may withdraw an application made under the proposed Act at any time, by giving written notice to the scheme decision maker.

Standard of proof

59 In determining an application for financial assistance, the proposed Act should provide that the scheme decision maker:

(a) must be satisfied on the balance of probabilities about the existence of any relevant matter

(b) may determine that a criminal act occurred regardless of the existence, status or outcome of any other legal proceedings, including where those other proceedings are pending or where the alleged offender has been acquitted in criminal proceedings relating to the alleged criminal act.

Documentary evidence requirements—evidence required to establish a criminal act

60 To assist the scheme decision maker in determining whether the applicant was the victim of a criminal act, the proposed Act should provide that an applicant must provide at least one of the following in support of their application:

(a) a record of the conviction of the perpetrator

(b) a police report

(d) a medical report

(e) a report from a psychologist

(f) a report from a counsellor

(g) a report from a social worker

(h) a report from a government department or agency

(i) a report from a family violence service

(j) a report from a non-government agency, as determined by the scheme decision maker.

61 The proposed Act should provide that where an applicant is unable to provide any of the required documentary evidence, the applicant must provide a statutory declaration stating the reasons why the documentary evidence has been unable to be provided.

Documentary evidence requirements—evidence required to establish injury

62 To assist the scheme decision maker in establishing that the applicant has suffered injury as a result of the criminal act, the proposed Act should provide that an applicant must provide at least one of the following in support of their application:

(a) a medical report, including from the applicant’s general practitioner

(b) hospital records

(d) a report from a counsellor

(e) a report from a social worker

(f) a report from a family violence service

(g) a report from a government agency

(h) a report from a non-government agency, as determined by the scheme

decision maker.

Documentary evidence requirements—evidence required to establish a close personal relationship

63 The proposed Act should provide that an applicant who had a close personal relationship with a person who died or was injured as a result of a criminal act must provide evidence of that relationship in support of their application.

Documentary evidence requirements—evidence required to establish expenses

64 The proposed Act should provide that an applicant must provide a written quotation, invoice, receipt, or other relevant documentary evidence in support of any claim for expenses already incurred or reasonably likely to be incurred for immediate needs, funeral expenses, counselling, and practical support.

Reducing the burden on victims—assisting victims to meet their documentary evidence requirements

65 The proposed Act should provide that at a victim’s request, and so far as is reasonably practicable within the limits of available resources, scheme case managers must assist victims with the collection of documentary evidence and/or the completion of the relevant application forms.

Use of application materials in other proceedings

66 The proposed Act should provide that an application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act are not admissible as evidence in any other legal proceedings, except:

(a) in criminal proceedings in which the applicant is the accused

(b) in or arising out of proceedings relating to the application to which the applicant is a party, or

67 The proposed Act should provide that a person is not required by subpoena, or any other procedure, to produce any application or other document that would be inadmissible following the implementation of Recommendation 66.

Inspection of application materials

68 Except in accordance with Recommendation 66, the proposed Act should provide that an application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act may only be accessed by the applicant or, with the applicant’s consent, by another person.

Publication of application materials

69 The proposed Act should provide that a person must not publish, or cause to be published, any details or documentation related to, or produced for, the purposes of:

(a) an application to the scheme that would be likely to lead to the identification of any individual the subject of an application, including applicants and alleged offenders

(b) a determination of the scheme that would be likely to lead to the identification of any individual the subject of an application, including applicants and alleged offenders

(c) any proceeding conducted by the scheme, including a victim conference, that would be likely to lead to the identification of any individuals the subject of an application, including applicants and alleged offenders.

70 The proposed Act should provide that the publication prohibition does not apply to:

(a) the publication of de-identified data for the purpose of scheme reporting

(b) media or other public reports about the scheme which appropriately de-identifies individuals

(d) the release of any application for assistance, any supporting documents, and any documents provided or prepared in connection with an application under the proposed Act by a court or tribunal in accordance with a subpoena, where such materials are not inadmissible as a result of Recommendation 66.

Time limits for the making of an application

71 The proposed Act should provide that:

(a) the time limit for making an application for immediate assistance, funeral expenses, practical assistance and/or a recovery payment is three years after the date the criminal act occurred, except where:

(i) the applicant was under the age of 18 when the criminal act occurred—in which case the time limit for making an application is three years from the day that the victim turns 18

(ii) the applicant is an adult victim of a criminal act which occurred in the context of family violence, as defined in the Family Violence Protection Act 2008 (Vic), or constitutes a sexual offence—in which case the time limit for making an application is 10 years after the date the criminal act occurred

(iii) the applicant was under the age of 18 when the criminal act occurred and the criminal act occurred in the context of child abuse, as defined in the Child Wellbeing and Safety Act 2005 (Vic), or family violence, as defined in the Family Violence Protection Act 2008 (Vic)—in which case there is no time limit for making an application.

(b) there is no time limit for making an application for an award of assistance for counselling.

72 The proposed Act should provide that where there are related criminal acts, the application time limit commences from the date of the last criminal act.

Considering applications made out of time

73 The proposed Act should provide that the scheme decision maker has the discretion to accept applications made out of time and that in considering such late applications must have regard to:

(a) the applicant’s age at the time of the criminal act, including whether they were a child at the time that the criminal act occurred 

(b) whether the applicant is intellectually disabled within the meaning of the Disability Act 2006 (Vic) or mentally ill within the meaning of the Mental Health Act 2014 (Vic)

(d) the physical or psychological effect of the criminal act on the applicant

(e) whether the applicant has or had a medical or psychological condition which affected their ability to make an application

(f) the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence

(g) whether the applicant has experienced homelessness

(h) the length of time taken for any related legal proceedings to finalise

(i) whether the delay in making the application threatens the capacity of the scheme decision maker to make a fair decision

(j) any other circumstances that the scheme decision maker considers relevant.

74 To ensure victims are not deterred from making an application outside the application time limit, the proposed Act should provide that information about time limits, including the circumstances in which out-of-time applications may be accepted and the process for making such an application, should be developed and made publicly available.

Increasing transparency and consistency of decision making

75 To promote transparency, predictability and consistency of decision making, the proposed Act should provide that the scheme decision maker must:

(a) provide written reasons to the applicant for not accepting an application made out of time

(b) publish annual data on out-of-time applications that are refused, and applications for assistance that are refused for other reasons, including the categories and reasons for refusal.

Chapter 15. Decision making under the proposed Act for victims of crime financial assistance

Factors to be considered in determining an application

76 The proposed Act should provide that the scheme decision maker must refuse any application where satisfied on the balance of probabilities:

(a) the applicant has committed the criminal act the subject of the application

(b) the applicant voluntarily and freely participated in, assisted in or encouraged the commission of the criminal act the subject of the application

(c) the application is made in collusion with the person who committed or is alleged to have committed the criminal act, or

(d) an earlier application has been made in relation to the same criminal act, whether or not the earlier application has been determined.

77 The proposed Act should provide that the scheme decision maker, in determining whether or not to make a recovery payment, or the amount of the recovery payment, must have regard to:

(a) whether the applicant, or the direct victim if the applicant is not the direct victim, was committing an offence at the time of the criminal act the subject of the application, and that offence was the primary reason the criminal act the subject of the application was committed

(b) whether previous involvement in criminal activity by the applicant, or the direct victim if the applicant is not the direct victim, was the primary reason the criminal act the subject of the application was committed.

78 The proposed Act should provide that for the purposes of determining whether or not to make a recovery payment, or the amount of the recovery payment, the scheme decision maker must not have regard to criminal activity related to drug and alcohol consumption.

79 The proposed Act should provide that where the scheme decision maker is satisfied on the balance of probabilities that an alleged perpetrator is likely to benefit from the making of a recovery payment, the scheme decision maker may determine that a recovery payment be subject to a recovery plan, with monies held in trust and administered by a scheme case manager in accordance with the recovery plan.

Timeliness of decision making

80 To help ensure timely decision making, the proposed Act should:

(a) provide that the scheme decision maker must act expeditiously in the determination of applications

(b) prescribe specific time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made, reflecting:

(i) the urgent nature of requests for immediate assistance and funeral expenses

(ii) the need to maintain continuity in service provision for victims in relation to counselling

(iii) best practice, benchmarked against the average time taken to determine financial assistance applications in other schemes

(c) provide that where an application for assistance is unable to be determined within the relevant prescribed time period, the scheme decision maker must:

(i) provide the applicant with written reasons for the failure to make a decision within the prescribed time limit

(ii) provide the applicant with information on the expected determination timeframe

(iii) if the scheme decision maker considers further identified information in relation to the application is necessary, request the applicant, or another person, in writing, to provide the specified further information in relation to the application.

(d) provide that the scheme decision maker is not permitted to delay the determination of an application pending the outcome of any other legal proceeding.

Transparency of decision making—written reasons for decisions

81 The proposed Act should provide that the scheme decision maker must provide written reasons for decisions, in plain language, in relation to:

(a) accepting an application for immediate assistance, counselling, practical assistance or a recovery payment

(b) rejecting an application for immediate assistance, counselling, practical assistance or a recovery payment

(d) reducing an award of assistance on the grounds that a victim has received any other assistance, payment, compensation or damages from any other source in relation to the same criminal act, or

(e) requiring a refund of an award.

Transparency of decision making—review of decisions

82 The proposed Act should enable, at the request of an applicant:

(a) internal review of a decision by a more senior scheme decision maker

(b) following completion of the internal review process, an external review of the decision to the Victorian Civil and Administrative Tribunal.

83 The proposed Act should provide that the scheme decision maker must accompany all written reasons for decisions with information on the right of review and timeframes for review.

84 The proposed Act should provide that applicants have:

(a) 28 days to seek an internal review of a decision

(b) 28 days after an internal review of decision to seek an external review to the Victorian Civil and Administrative Tribunal.

Transparency of decision making—complaints process

85 The proposed Act should provide that the scheme decision maker must establish a complaints process relating to the administration of the proposed scheme, including the conduct of any scheme staff. This complaints process should be separate and distinct to a victim’s right to review or appeal a decision and should be consistent with the principles governing responses to victims of crime under the Victims’ Charter Act 2006 (Vic).

Chapter 16. Interaction with other schemes and refund of awards

Interaction with other compensation and financial assistance schemes

86 The proposed Act should:

(a) provide that a victim may be entitled to financial assistance under the proposed Act, notwithstanding any assistance, payment, compensation or damages they may be eligible for or may have received from any other source, where the award made under the proposed Act is for a different purpose than the other entitlement or payment

(b) provide that the scheme decision maker, at the time of making an award, must reduce the amount of assistance, equivalent to any assistance, payment, compensation or damages that the victim has received from any other source in relation to the same criminal act, if that payment was for the same purpose as the award under the proposed Act

(c) provide the scheme decision maker with discretion to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the scheme decision maker considers on the balance of probabilities that the victim will receive from any other source in relation to the same criminal act, and for the same purpose as an award under the proposed Act

(d) provide the scheme decision maker with the power to investigate and obtain information to assist in determining, at the time of making an award, whether to reduce the amount of assistance provided to a victim, equivalent to any assistance, payment, compensation or damages that the victim has received from any other source.

87 To assist the scheme decision maker in determining an application where a victim may be eligible for or may have received assistance, payment, compensation or damages from another source, including the circumstances in which an award may be reduced, or a refund of part or all of an award may be required, guidelines should be developed and should be made publicly available.

Refund of awards

88 The proposed Act should provide that:

(a) after an award is made, a victim may be required to refund the award in whole or in part if the victim receives any assistance, payment, compensation or damages from any other source in relation to the same criminal act and for the same purpose for which the award has been made

(b) in determining whether a refund should be required, the scheme decision maker must have regard to the following factors:

(i) the quantum or type of any subsequent assistance, payment, compensation or damages received

(ii) any other circumstances that the scheme decision maker considers relevant, including the victim’s specific circumstances.

89 To assist the scheme decision maker in determining whether a refund should be required, guidelines should be developed and should be made publicly available.

Chapter 17. Improving awareness and accessibility of the proposed victims of crime financial assistance scheme

Engagement and training

90 The proposed Act should:

(a) provide that ongoing community engagement, public awareness and sector training and education activities regarding the proposed scheme are an essential component of the proposed scheme, including the training and education of victim support workers, advocates and legal professionals.

(b) provide that the scheme decision maker must:

(i) undertake targeted outreach activities regarding the proposed scheme with relevant frontline and community sector organisations including police, victim support organisations, hospitals, community health organisations, culturally and linguistically diverse advocacy organisations and legal services, to improve the numbers of victims accessing state-funded financial assistance

(ii) report annually on community engagement, public awareness and sector training and education activities.

91 The proposed scheme should be appropriately funded and resourced to enable ongoing community engagement, public awareness and sector training and education activities about the proposed scheme to be conducted.

92 Annual reporting on community engagement and public awareness activities undertaken should be part of the proposed scheme’s key performance indicators.

Forms and information

93 The proposed Act should provide that all forms and other information relevant to the proposed scheme must be in plain language, readily available and accessible in a range of formats.

Chapter 18. Costs and sustainability of the proposed victims of crime financial assistance scheme

Scheme establishment and demand

94 A comprehensive demand modelling project should be undertaken to assess current unmet demand under the existing scheme and anticipated demand under the proposed scheme.

Sustainability of the proposed scheme—offender recovery

95 The proposed Act should:

(a) enable a victim to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates, as is currently provided for under section 51 of the Victims of Crime Assistance Act 1996 (Vic)

(b) require any amount equal to the expended amount to be paid into the Consolidated Fund with the balance, if any, to be paid to the assignor, as is currently provided for under section 51 of the Victims of Crime Assistance Act 1996 (Vic)

(c) provide that the scheme decision maker must advise all victims that they may assign to the state their right to recover from any other person, and provide clear information on the process for such recovery

(d) notwithstanding a victim’s assignment of their right, provide the proposed scheme decision maker with discretion not to recover or continue to recover an amount from an offender because:

(i) of the scheme decision maker’s assessment of the objective risks to the safety of any person; or

(ii) the scheme decision maker determines that the recovery does not have a reasonable prospect of success

(e) provide the scheme decision maker with the power to investigate and obtain any information reasonably necessary to assist in determining whether the recovery has a reasonable prospect of success.

96 To enable offender contributions to be effectively pursued, where a victim elects for the state to do so:

(a) the scheme decision maker should be provided with dedicated funding and resourcing to pursue such contributions and this funding should be sufficient not to divert resources from the provision of support to victims under the proposed scheme, and

(b) there should be further government consideration of the appropriate agency for pursuing such contributions.

Sustainability of the proposed scheme—‘victim levies’

97 To assist with scheme sustainability, further consideration should be given by government to the introduction of a ‘victim levy’ payable by offenders on conviction.

Chapter 19. Monitoring the operation of the proposed Act and scheme for victims of crime financial assistance to ensure best practice

Reporting and publication of data

98 The proposed Act should provide that the scheme decision maker must annually publish and make publicly available in readily accessible form information and data relating to all aspects of the scheme, including but not limited to:

(a) the number and type of applications lodged

(b) applicant details, including geographical location, gender, age and whether they are a member of a vulnerable group or groups that experience discrimination and disadvantage

(d) the amount and duration of assistance

(e) processing times

(f) decision making, particularly in relation to the application of discretionary provisions in the proposed Act

(g) offender recovery.

Review of the proposed Act

99 The proposed Act should provide for a review of the operation and effectiveness of the Act and the scheme not more than five years after its commencement.

Transitioning to the proposed Act and scheme

100 The proposed Act should provide for the following transitional provisions:

(a) All pending applications before the Victims of Crime Assistance Tribunal at the commencement date of the proposed Act should be finalised under the Victims of Crime Assistance Act 1996 (Vic).

(b) All new applications for financial assistance for victims of crime made on or after the commencement date of the proposed Act should be made under the proposed Act and determined by the proposed scheme.

(c) All applications for variations of existing awards made under the Victims of Crime Assistance Act 1996 (Vic) on or after the commencement date of the proposed Act should be treated as new applications made under the proposed Act.

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