Review of the Victims of Crime Assistance Act 1996: Supplementary Consultation Paper (html)

11. VOCAT hearings and evidentiary processes

Introduction

11.1 This chapter discusses Victims of Crime Assistance Tribunal (VOCAT) hearings and evidentiary processes including:

• directions hearings

• notification and appearance of interested persons

• alternative evidentiary arrangements and open court

• therapeutic effect of VOCAT hearings

• restricting publication of VOCAT application material

• VOCAT determinations without a hearing.

11.2 This chapter relates to the first, seventh and eight matters raised in the supplementary terms of reference, which ask the Victorian Law Reform Commission (the Commission) to consider whether:

• the Victims of Crime Assistance Act 1996 (Vic) (the 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

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

11.3 Questions in this chapter relate to the extent to which the current processes and procedures are clear, simple and working as intended, as well as whether the policy rationale for them remains justifiable.

The hearing process

11.4 VOCAT may determine an application without conducting a hearing. This may occur where the applicant expressly wishes and consents in writing to VOCAT making a determination without a hearing, and in circumstances where VOCAT does not require a hearing.^[1]

11.5 Where a hearing is requested by a victim or required by VOCAT, VOCAT must fix a time and place for the hearing and provide the applicant with reasonable notice.^[2]

11.6 However, VOCAT is not a court. VOCAT hearings are less formal than court hearings^[3] and VOCAT is not bound by the rules of evidence.^[4] Consequently, VOCAT may inform itself in relation to the application in any manner that it thinks fit.^[5]

11.7 VOCAT’s procedures remain a legal process bound by the provisions of the Act.^[6] For example, VOCAT has the power to issue a warrant for the arrest of a witness who has been served with a summons to attend VOCAT but has failed to do so.^[7] VOCAT must also give a party to the matter a reasonable opportunity to call or give evidence, examine, cross-examine or re-examine witnesses and make submissions.^[8]

11.8 The decision in AB v Victims of Crime Assistance Tribunal^[9] indicates that the duty to give a party a reasonable opportunity to call evidence can be tempered by concern for the wellbeing of the applicant.

11.9 In that case, the alleged perpetrator, the applicant’s father, had been joined as a party to the proceedings. He wished to call the applicant’s mother as a witness but the mother expressed concern that her daughter might self-harm or commit suicide if the mother were to give evidence. VOCAT excused the mother from giving evidence, ruling that the risks of self-harm were too great.^[10] The applicant’s father appealed the decision to the Supreme Court. In dismissing the appeal, Justice McDonald stated:

I am satisfied that there are credible arguments in support of the Tribunal having the power to excuse a witness from giving evidence in circumstances where such evidence could result in an applicant committing an act of self-harm, including suicide.^[11]

Directions hearings

11.10 Practice Direction No 7 of 2008—Directions Hearings provides guidance as to when it is appropriate to conduct a directions hearing.^[12] Directions hearings may be held at any time the Tribunal considers appropriate, including, but not limited to the following circumstances:^[13]

• where the Tribunal has determined that a person with a legitimate and/or substantial interest (including an alleged offender) will or may be a party to the proceedings

• counsel assisting the Tribunal has been appointed

• access is sought to classified documents (as per Practice Direction No. 9 of 2008) in a Tribunal file or access to a file is sought by a third party

• an application has been made for an extension of time

• there has been a delay or other deficiency in reporting the act of violence to the police

• pecuniary loss or a dependency award is claimed

• the Tribunal has been provided with adverse police material

• the application does not appear to disclose a relevant offence within the meaning of section 3(1) of the Act

• the application is incomplete or deficient.

11.11 The Tribunal may hold a directions hearing on its own initiative or at the request of a practitioner.^[14]

11.12 Applicants who are legally represented need not attend a directions hearing unless required to do so by the Tribunal.^[15]

11.13 In appropriate circumstances, the Tribunal may make final orders at a directions hearing.^[16]

11.14 The Tribunal may request the applicant or a person with a legitimate and/or substantial interest provide information at a directions hearing including, but not limited to:^[17]

• the number of witnesses to be called

• the estimated length of the hearing

• the need, if any, for alternative arrangements for giving evidence, including use of the remote witness facility or video conferencing facility

• details of documents to be exchanged or viewed

• details of the facts in dispute between the parties

• the need for interpreters

• any other information which may affect the conduct of the final hearing.

11.15 During preliminary consultations the Commission was informed that the use of directions hearings by VOCAT members varied, including in the amount and particulars of the information requested and the purpose of the directions hearing.

Notification and appearance of interested persons

11.16 Under the Act, VOCAT may give notice of the time and place for a hearing to any other person whom it considers to have a ‘legitimate interest’ in the matter.^[18] This can include the alleged perpetrator.^[19] These notification requirements of the Act are discretionary.

11.17 However, the Act also provides that VOCAT must not notify the alleged perpetrator or an interested third party without first giving the applicant an opportunity to be heard on whether or not they should be notified.^[20]

11.18 VOCAT’s process for notifying an alleged perpetrator or interested third party is set out in Practice Direction No. 4 of 2008: Notification of Alleged Offenders and Third Parties.^[21] The Practice Direction provides that VOCAT must advise the applicant in writing that such notification is being considered and allow 21 days for the applicant to respond.^[22] At the conclusion of 21 days, the tribunal member will make a decision on whether the alleged perpetrator is to be notified of the application.^[23]

11.19 If the tribunal member decides to notify the alleged perpetrator, the applicant has 21 days to decide whether she or he still wishes to pursue their application.^[24] If the application proceeds, the registrar will send notification of the application to the alleged perpetrator. The alleged perpetrator then has 14 days to advise the registrar as to whether she or he intends to participate in the hearing.^[25]

11.20 The same process applies for third parties, other than the alleged perpetrator, whom VOCAT identifies as having a legitimate interest in the matter.^[26]

11.21 Persons who consider that they have a legitimate interest in an application for assistance, including the alleged perpetrator, can also apply to VOCAT to be notified of the proceedings.^[27] The application must be made in writing and must set out why they consider that they have a legitimate interest or should be notified of the proceedings.^[28]

11.22 Unless otherwise ordered by a VOCAT member, such an application by the third party, including the perpetrator, will be forwarded to the applicant, who then has 21 days to respond to VOCAT as to whether she or he objects to the third party, or the alleged perpetrator, participating in the proceeding.^[29]

11.23 If the applicant does not oppose the third-party application, or VOCAT receives no response, the third-party application will be determined by a VOCAT member in chambers.^[30] If the applicant opposes the third-party application, the matter will be referred to a VOCAT member for listing advice and there may be a directions hearing.^[31]

11.24 In addition to VOCAT’s discretion to inform persons it considers to have a legitimate interest, section 35 identifies persons who are entitled to appear and be heard by VOCAT. In addition to the applicant for financial assistance, these people are:

• persons who have been accepted by VOCAT as having a ‘substantial interest’ in an application for assistance, including the alleged perpetrator^[32]

• an officer of VOCAT or a legal practitioner assisting VOCAT^[33]

• the state, if it considers that it has a legitimate interest in the matter.^[34]

11.25 A person or body who is entitled to appear and be heard by VOCAT is considered a party to the matter.^[35]

11.26 A party may appear personally or by a legal practitioner.^[36] They may also appear by another representative with the leave of VOCAT.^[37]

Alternative evidentiary arrangements and open court

11.27 VOCAT is able to direct that alternative arrangements be made for the giving of evidence by a witness.^[38] This may be done by VOCAT on its own initiative or on the application of a party to a proceeding.^[39]

11.28 Some of the alternative arrangements are:

• closed-circuit television or other facilities that enable a witness to give evidence from a place other than the room in which VOCAT is sitting

• screens to remove the alleged perpetrator from the witness’ direct line of vision

• permitting a person to be beside the witness to give emotional support while they are giving evidence

• requiring counsel to be seated while examining or cross-examining the witness.^[40]

11.29 These provisions were considered by the Supreme Court of Victoria in AB v Victims of Crime Assistance Tribunal,^[41] where Justice McDonald noted they reinforce the victim-centred approach of the statutory scheme.^[42] The judge drew on them, along with VOCAT’s power to conduct a hearing without giving notice to the alleged perpetrator, to conclude that in making procedural decisions VOCAT is required to give consideration to the interests of the applicant.^[43]

11.30 These alternative evidentiary arrangements were used in BFK v Victims of Crime Assistance Tribunal,^[44] where the applicant, BFK, and the alleged perpetrator, YVP, each gave evidence from a remote witness facility to ensure they did not meet face-to-face. The Victorian Civil and Administrative Tribunal stated that causing BFK and YVP to meet in court ‘would have increased BFK’s distress’.^[45]

11.31 The Act requires VOCAT hearings to be open to the public.^[46] However, VOCAT can direct that whole or part of a hearing be closed to the public.^[47] It can also direct that only certain persons, or classes of person, may be present.^[48]

11.32 A direction to close or restrict access to a hearing may be given on the application of a party or on VOCAT’s own initiative.^[49]

11.33 In addition, the Act requires VOCAT to close the hearing to the public if an application is made for it to be closed in the following circumstances:^[50]

• the applicant is a primary victim and their injury resulted from a sexual offence^[51]

• the applicant is a primary victim and is a child

• the applicant is a primary victim and has a cognitive impairment

• VOCAT is satisfied that the applicant is likely to suffer distress if the hearing is open to the public

• VOCAT is satisfied that the applicant is likely to feel intimidated if the hearing is open to the public.

Therapeutic effect of VOCAT hearings

11.34 During preliminary consultations the Commission was told that one of the beneficial aspects of Victoria’s approach to state-funded financial assistance for victims of crime is the use of VOCAT hearings presided over by judicial officers. Victoria is one of the few Australian jurisdictions that enables victims to elect to attend a hearing and uses judicial decision makers.^[52]

11.35 This tribunal-based system gives victims a unique opportunity to engage with the justice system and be heard and acknowledged. For some victims, the hearing of an application by a judicial officer provides an acknowledgment from the justice system that there has been a crime and that they have suffered harm as a consequence.^[53] Where an offender has not been prosecuted, victims can feel acknowledged and validated by participating in a VOCAT hearing.^[54]

11.36 During preliminary consultations the Commission was told about the powerful nature of such judicial acknowledgment, particularly in sexual offence matters where successful prosecution is rare.

11.37 VOCAT considers that the tribunal structure enables ‘victims of crime [to] gain acknowledgment of their experiences by a judicial officer in the criminal justice system, but in the more flexible, informal and intimate manner afforded by an administrative tribunal’.^[55]

11.38 However, some victims may wish not to participate in a VOCAT hearing. While less formal than a criminal court, it is important to note that VOCAT still operates within a legal framework and some processes mirror the adversarial system, although perhaps less formally. As stated by Judith Herman, ‘if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law’.^[56] Research indicates that some victims can be distressed by having to recount details of the crime during VOCAT hearings^[57] or traumatised by VOCAT member comments.^[58]

11.39 During preliminary consultations the Commission was told that one of the reasons the VOCAT process can be re-traumatising for victims is because it is not a trauma-informed process.

11.40 Trauma-informed practice involves modifying aspects of service provision to ensure a basic understanding of how trauma affects the life of an individual seeking a service.^[59] A trauma-based approach accepts victims of crime as being harmed as a result of the crime.^[60] One of its benefits is that it avoids re-traumatisation, as the focus is on ensuring the person’s physical, psychological and emotional safety.^[61]

11.41 Significantly, approaches that are not trauma-informed often mirror the power and control experienced in abusive relationships.^[62]

Restricting publication and use of VOCAT application material

11.42 The Act permits VOCAT to restrict the publication of material produced as part of an application for assistance if it is in the public interest to do so.^[63] This includes the whole or part of the evidence given at a hearing,^[64] the content of specified documents^[65] and any information likely to lead to the identification of a party or another person at a hearing.^[66]

11.43 Section 43(3) of the Act makes it an offence to publish any material subject to such an order by VOCAT.^[67]

11.44 The Commission’s report, The Role of Victims of Crime in the Criminal Trial Process noted that VOCAT records may be subpoenaed and used by the defence in criminal hearings to demonstrate inconsistencies in a victim’s evidence and to challenge the credibility of a victim.^[68] The Commission was informed that VOCAT records are regularly subpoenaed for criminal proceedings.^[69]

11.45 Accordingly, the Commission recommended that applications, supporting documentation and documents provided to, or prepared for, or on behalf of VOCAT in connection with an application for financial assistance under the Act should be inadmissible as evidence in any criminal legal proceedings except:^[70]

• in criminal proceedings in which the applicant is the accused

• in or arising out of proceedings before VOCAT

• with the applicant’s consent.

11.46 The Commission also recommended that a person should not be required by subpoena or any other procedure to produce any application or document that would be inadmissible following the implementation of the above recommendation. The Commission stated:

Victims are entitled to apply for assistance from VOCAT to help them with their recovery. They should not be discouraged from doing so because of fear that an offender will seek to access or use their VOCAT records in criminal proceedings.^[71]

11.47 These recommendations are yet to be implemented and therefore remain relevant considerations in the Commission’s current examination of the Act and VOCAT.

11.48 During preliminary consultations, the Commission was also told of concerns regarding the admissibility of VOCAT documentation in family law matters. This was raised specifically in the context of family violence where there may be parallel family law matters on foot.

VOCAT determinations without hearing

11.49 This section discusses VOCAT determinations without a hearing. Under section 33 of the Act, VOCAT has the power to determine an application without conducting a hearing. This is often referred to as making a determination ‘on the papers’.

11.50 VOCAT can do this in the following circumstances:

• The applicant has stated in the application a wish for VOCAT to determine their application ‘on the papers’.^[72]

• The applicant consents in writing to VOCAT doing so.^[73]

• The application relates to the making of an interim award, unless VOCAT considers that a hearing is necessary or desirable.^[74]

11.51 If VOCAT does determine an application on the papers, it must notify the applicant of its decision, including details of the amount of assistance awarded, the purpose for which assistance was awarded, any conditions to which the award is subject, the persons(s) to whom assistance is payable and any other order that it makes.^[75]

11.52 Applications are determined on the papers in the majority of VOCAT matters—approximately 75 per cent in 2015–2016.^[76]

11.53 Preliminary consultations indicated that, in practice, decisions made on the papers generally involve a two-step process in which the applicant will first ask VOCAT to determine their application without a hearing, and if unhappy with VOCAT’s determination, will subsequently request a hearing. In this sense, the process under section 33 seems to resemble an offer of settlement in the course of civil proceedings, but one that comes from the deciding authority itself.

11.54 Determinations made on the papers can be a beneficial way for victims to have their applications determined quickly and without having to attend court. They also present a way for victims to avoid the alleged perpetrator participating in the hearing and may alleviate safety or wellbeing concerns relating to an open court hearing.

11.55 However, in its submission to the Royal Commission into Family Violence, Women’s Legal Service Victoria expressed concern that there may be inconsistency in outcomes for victims whose applications are decided on the papers and those whose applications are determined at a hearing.^[77]

11.56 During preliminary consultations the Commission was told that the potential variability in awards is compounded, or possibly caused, by a lack of transparency in the VOCAT process itself. It is difficult to know whether the award offered during the section 33 process is consistent with that offered in similar cases.

11.57 Some stakeholders told the Commission that the quantum of awards made on the papers seemed to be lower than if a hearing was held. It was suggested that providing victims with the opportunity to speak freely with the magistrate during a hearing often illustrated other needs that could be factored into awards made, particularly in relation to VOCAT’s ability to make awards for other expenses in exceptional circumstances.

Discussion and options for reform

11.58 This section discusses the impact of current hearing and evidentiary processes. It also sets out options for reform to address concerns for victims’ safety and wellbeing associated with hearing and evidentiary processes.

11.59 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether these processes and procedures should be reformed. Options for reform and questions are set out below.

Perpetrator notification and right to appear

11.60 As the Commission noted in the first consultation paper, the perpetrator notification provisions are a particularly significant issue for victims of family violence, raising safety concerns and the potential for re-traumatisation.^[78]

11.61 However, these concerns are not unique to family violence victims—such issues extend to other vulnerable victims and witnesses or other cohorts of victims, such as victims of sexual assault. The Commission was told during preliminary consultations that a perpetrator is more likely to be notified when the applicant has not reported the incident to the police or charges have not been laid, when they have been acquitted, or when there is little evidence to support an applicant’s claim.

11.62 Victims of certain types of crime associated with low reporting rates, such as sexual assault,^[79] or victims who may fear or distrust police are therefore more vulnerable to the perpetrator notification requirements. However, these are often also the victims more vulnerable to intimidation, threats to their safety or re-traumatisation through contact with an alleged perpetrator.^[80]

11.63 As discussed in the first consultation paper, reporting rates, prosecution rates and conviction rates are low in cases of family violence.^[81] Furthermore, as family violence tends to occur in private, there is often little corroborating evidence beyond that of the applicant and the perpetrator.^[82] These factors may lead to victims of family violence being more exposed to the perpetrator notification procedure, despite its potential to be highly traumatic.^[83]

11.64 This may also be the case for childhood sexual assault and many other sexual offences.^[84]

11.65 Preliminary consultations identified that even if perpetrator notification occurs rarely, the fact that it exists at all can be a deterrent for some victims who may elect not to pursue a VOCAT application because of the chance of the perpetrator being notified.

Removing the perpetrator notification provision

11.66 As outlined in the first consultation paper, one option could be to remove the notification provision either entirely or specifically for vulnerable victims, such as victims of family violence or sexual assault.^[85] Some stakeholders considered that this approach would better reflect the purpose of the Act—namely, to assist victims of crime recover.

11.67 However, during preliminary consultations views on whether removing the perpetrator notification provision would cause procedural fairness issues were mixed.

11.68 Some stakeholders considered it important for procedural fairness that alleged perpetrators are notified of an application being made which contains serious allegations against them and which could result in serious findings being made against them.

11.69 However, other stakeholders considered that the perpetrator notification provisions were contrary to the purpose of the Act. This view is consistent with the victim-centred approach of the VOCAT process, as described by Justice McDonald in AB v Victims of Crime Assistance Tribunal.^[86]

11.70 The Commission was told by some stakeholders that the notification provisions serve

little purpose, as the outcome of a VOCAT proceeding does not affect the rights of an alleged perpetrator. However, other stakeholders said that it was important for an

alleged perpetrator to be afforded the opportunity to make submissions and be heard before a finding is made about an alleged offence, despite the finding not affecting their criminal record.

Question

48 How do the rights of perpetrators—to be notified or appear—fit with the purpose of the Act, which is to provide assistance to victims of crime?

Enhancing safety considerations in the Act

11.71 Another option is to amend the Act to list specific safety concerns that must be taken into account by VOCAT before a perpetrator can be notified. These safety factors could be associated with particular types of crime, or relate to specific vulnerabilities of victims. This option could be guided by an overall principle of not causing additional trauma, intimidation or distress to the applicant.

11.72 More explicit guidance in the Act might result in fewer notifications being made and place victim safety and wellbeing at the forefront of the decision-making process.

11.73 Alternatively, the Act could be amended to include a legislative presumption against perpetrator notification. For example, the Act could specify that an alleged perpetrator should not be notified of an application unless exceptional circumstances exist. Exceptional circumstances could be defined in the Act.

11.74 Another approach could be for the Act to provide for perpetrator notification only in circumstances where VOCAT would be unable to make a fair decision without notifying the perpetrator and seeking evidence from the perpetrator.

11.75 Including a legislative presumption against perpetrator notification would shift the Act’s current focus from whether an alleged perpetrator has a ‘legitimate interest’ in an application, to whether the notification is justifiably required for VOCAT to reach a fair decision.

11.76 Another option is to improve the evidentiary and procedural protections for victims. This option could help limit some of the adverse impacts of the perpetrator notification and appearance provisions. This option is further discussed below at [11.83]–[11.92].

Questions

49 Should the Act be amended to include a legislative presumption against perpetrator notification? If so, how should the Act be amended?

50 Should the notification provision be amended to recognise the safety concerns of victims more specifically? If so, what changes should be made to the Act?

51 Given the aim of the Act is to assist victims of crime, should the Act be amended to include a guiding principle protecting victims from undue trauma, intimidation or distress during VOCAT hearings?

Removing the option of hearings

11.77 A final option, and one which would require significant changes to both the Act and the broader financial assistance scheme, would be to remove the option for tribunal hearings entirely. This is the case in New South Wales, Australian Capital Territory, Queensland and Northern Territory where hearings are no longer available.^[87]

11.78 For some victims, the hearing of an application by a judicial officer provides an acknowledgment from the justice system that there has been a crime and that they have suffered harm as a consequence.^[88] However, for some victims the hearing process can be a source of further trauma.^[89]

11.79 While this option does not reduce safety concerns associated with perpetrators being notified of an application, which is sometimes enough of a disincentive for victims to apply to VOCAT, it does reduce safety or wellbeing concerns arising from perpetrators attending hearings.

11.80 The benefits of tribunal models, as opposed to administrative models, are discussed further in Chapter 15 of this paper.

11.81 Consideration might also be given to other opportunities for acknowledging victims, beyond the use of judicial hearings, given the potential for victims to be re-traumatised by the process. This might involve restorative justice practices linked with a financial assistance system.

11.82 The potential for a financial assistance scheme to complement restorative justice practices is discussed further in Part Three of this paper.

Evidentiary and procedural protections for vulnerable witnesses

11.83 As noted above, VOCAT has the power to close the court, restrict publication of material and permit alternative evidentiary procedures in order to protect vulnerable applicants.

11.84 The Magistrates’ Court and Children’s Court noted in their submission to the Royal Commission into Family Violence that the evidentiary provisions that protect sexual assault complainants and protected witnesses in criminal proceedings and intervention order matters do not explicitly extend to VOCAT hearings.^[90]

11.85 For example, the courts identified that, unlike the Criminal Procedure Act 2009 (Vic) and the Family Violence Protection Act 2008 (Vic), the Act does not specifically prohibit a victim of a sexual offence being personally cross-examined by the offender, nor explicitly require questioning to be appropriately constrained.^[91] In addition, in contrast to the Criminal Procedure Act and the Family Violence Protection Act, the Act does not contain any explicit protections for the giving of evidence by child applicants and witnesses.

11.86 While the Act gives VOCAT the discretion to put in place these kinds of evidentiary protections, the fact that such protections are not explicitly articulated in the Act may lead them to be underused or used inconsistently.

11.87 Options to address concerns about the evidentiary and procedural protections for vulnerable witnesses are set out below, along with specific questions for consideration.

Replicating the procedural and evidentiary protections in other legislation

11.88 One option is to replicate the procedural and evidentiary protections in place in the Criminal Procedure Act and the Family Violence Protection Act for vulnerable victims.^[92] This would involve extending explicit protections, such as, in relation to sexual offences, prohibiting the alleged perpetrator from cross-examining the applicant and preventing inappropriate questions being asked of the applicant.

11.89 It would also entail specific protections for child victims. For example, as in the Criminal Procedure Act, the Act could explicitly prohibit the cross-examination of a child victim of a sexual offence.^[93] Moreover, in considering whether or not a child should give evidence, the Act could take a similar approach to the Family Violence Protection Act, and require VOCAT to have regard to the desirability of protecting children from unnecessary exposure to the court system and the harm that could occur to the child and to family relationships if a child were to give evidence.^[94]

11.90 This option for reform would ensure greater consistency in the kinds of evidentiary and procedural protections that VOCAT provides for victims who are particularly vulnerable.

Question

52 Should the Act be amended to include increased protections for victims during VOCAT hearings? If so, what procedural and evidentiary protections should be provided?

Embedding safety considerations in the Act

11.91 The Commission recommended in Victims of Crime in the Criminal Trial Process that the Criminal Procedure Act be amended to include a guiding principle that measures should be taken that limit, to the fullest practical extent, the trauma, intimidation and distress suffered by victims when giving evidence.^[95]

11.92 As proposed in the first consultation paper, a similar principle regarding VOCAT procedure could be incorporated into the Act.^[96] In particular, the Act could be amended to include a guiding principle that in determining the procedure of hearings and the giving of evidence, VOCAT is to have regard to the fact that measures should be taken to limit the trauma, intimidation and distress suffered by victims when giving or hearing evidence.

Removing the option of hearings

11.93 As discussed above, another option is to remove the availability of tribunal hearings entirely, as in New South Wales, the Australian Capital Territory, Queensland and the Northern Territory.^[97]

11.94 The benefits of tribunal models as against administrative models are discussed further in Chapter 15 of this paper.

Improving the therapeutic effect of VOCAT hearings

11.95 The Commission was told during preliminary consultations that VOCAT hearings can sometimes cause further distress to victims because hearings are not trauma-informed.

11.96 The Law Institute of Victoria has recently considered the importance of trauma-informed legal practice, including for the judiciary and court staff.^[98]

11.97 Furthermore, Victoria’s Family Violence Rolling Action Plan 2017–2020 recognises the need for the Magistrates’ Court to move towards a more trauma-informed approach in the family violence context by ‘embedding a specialist, trauma-informed response across our justice system through the expansion of the Specialist Family Violence Court model’.^[99]

11.98 Ian Freckelton has reflected more broadly on the intrinsic lack of understanding and training of decision makers within financial assistance and compensation schemes, stating that ‘decision makers who have never encountered DSM-IV or standard works on trauma and victim impact are put in the position of having to deal with this sensitive area’.^[100]

11.99 One option is to consider how trauma-informed practice could be embedded within VOCAT and how this might improve experiences for victims. Such practice might include introduction of specialised training or specialist staff—or a combination of both. It might also involve broader structural or procedural changes, such as specialist streams or VOCAT-appointed magistrates as discussed in Chapter 10. All of these strategies could be underpinned by a trauma-informed approach.

Restricting access to and the use of VOCAT records

11.100 In its report, The Role of Victims of Crime in the Criminal Trial Process, the Commission recommended that VOCAT applications, supporting documentation and documents provided to, or prepared for or on behalf of, VOCAT in connection with an application for financial assistance under the Act should be inadmissible as evidence in any criminal legal proceedings except:

• in criminal proceedings in which the applicant is the accused

• in or arising out of proceedings before VOCAT

• with the applicant’s consent.^[101]

11.101 The Commission’s rationale, confirmed through consultations at the time, was that medical, psychological, psychiatric and counselling records are prepared for a specific purpose—determining eligibility under Act. As the Act’s aim is to assist victims with their recovery after crime, the Commission concluded that it is not appropriate for such materials to then be used to discredit a victim.^[102]

11.102 In addition, during preliminary consultations, the Commission was also informed of concerns about the use of VOCAT application materials during family law proceedings, particularly in cases involving family violence.

11.103 In the Commission’s report, The Role of Victims of Crime in the Criminal Trial Process, the Commission recommended that documents connected with VOCAT applications should be inadmissible in criminal legal proceedings. Given further issues were raised during preliminary consultations regarding the use of VOCAT materials in other court matters, such as family law matters, consideration should be given to whether the Act should be amended to provide that VOCAT applications and supporting documentation should be inadmissible as evidence in other types of legal proceedings, such as matters relating to family law.

Question

53 Should VOCAT application materials be admissible as evidence in criminal or family law proceedings? If not, how should the Act be amended?

Improving the transparency and consistency of VOCAT processes and decision making

11.104 Concerns about transparency in the VOCAT process are not new. In a submission to the then-Victorian Department of Justice’s 2009 review of victim compensation, the Federation of Community Legal Centres stated that there was a need for more transparency and equity in the VOCAT process.^[103] Similarly, research conducted by Whittlesea Community Legal Services found that the lack of written reasons for decisions made it difficult to gather evidence regarding the operation of VOCAT and therefore even more difficult to educate the legal profession about it.^[104]

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

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

11.107 However, applications are determined on the papers in the majority of VOCAT matters—approximately 75 per cent of all applications in 2015–16.^[105] This effectively means that VOCAT is operating predominantly as an administrative system while remaining embedded within a tribunal-based system.

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

11.109 Arguably, this predominantly administrative process consumes considerable judicial resources.

11.110 In addition to transparency concerns, some stakeholders told the Commission during preliminary consultations that they were concerned about the level of judicial discretion contained within the Act. Many stakeholders spoke about inconsistencies in practice, approach and the quantum of awards made by VOCAT members, and considered that these inconsistencies were tied to the level of discretion granted by the Act.

11.111 Some stakeholders said that the broad discretion in the Act could be used inappropriately. They suggested that more guidance in the Act might help to improve consistency in VOCAT’s practice, even if this resulted in more prescriptive considerations, categories or

award amounts. These stakeholders considered that such changes would make it easier to guide victims through the VOCAT process and to manage expectations, even if there were less flexibility.

Requiring written decisions and publication of determinations

11.112 One option to address concerns regarding transparency and consistency is to require appropriately de-identified written decisions to be published by VOCAT where a matter has been determined on the papers. This would provide guidance to victims, support workers and lawyers about the decision-making process, particularly in relation to areas of the Act that are more problematic, such as considerations about character and behaviour, as discussed in Chapter 8. This would also alleviate concerns that lower awards are made for matters determined on the papers compared to at a hearing.

11.113 However, before this option could be adopted, the resource implications of requiring publication of written decisions in the majority of cases would need to be considered.

11.114 Based on figures from 2015–16 (4161 applications awarded), written decisions would be required in approximately 3000 cases since around three-quarters of all decisions are made without a hearing. This could impose a significant burden on VOCAT.

Limiting broad discretion under the Act

11.115 Alternatively, consideration could be given to removing some of the broad discretions available within the Act, such as the special financial assistance minimum and maximum amounts and awards to assist recovery in exceptional circumstances, discussed in Chapter 6, as well as considerations about character and behaviour, explored in Chapter 8.

11.116 Limiting some of the broader discretion afforded under the Act might provide more clarity about the quantum and types of award made, and the circumstances in which they might be made. Victims of similar kinds of violence, with similar injuries, would be more likely to receive similar awards.

11.117 However, the ability of VOCAT to provide flexible support tailored to victim needs would be decreased if less discretion was available under the Act.

Streamlining decision making—a single decision-making process

11.118 Another option is to streamline all VOCAT decision making into a single, consistent decision-making process. This would mean that all victim applications would be determined the same way—either all through an administratively based system or all through a hearing-based system.

11.119 A review of the Australian Capital Territory scheme, for example, contended that administrative schemes increase transparency and the clarity of guidelines for eligibility.^[106]

11.120 This streamlining option would remove concerns that some victims are accessing different types or quantum of award depending on how their matter is determined. However, this option would require significant changes to the current scheme.

11.121 Broader changes are further discussed in Part Three of this consultation paper.

Question

54 How could transparency and consistency in VOCAT processes and decision making be improved?

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

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2. Ibid s 34.

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3. Section 38(1)(a) of the Victims of Crime Assistance Act 1996 (Vic) provides that the Tribunal is not required to conduct itself in a formal manner.

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4. Victims of Crime Assistance Act 1996 (Vic) s 38(1)(b). See also Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 25.

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

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6. Section 20 of the Victims of Crime Assistance Act 1996 (Vic) provides that the Tribunal has the functions, powers and duties conferred on it by the Act. See also Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 63.

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7. Victims of Crime Assistance Act 1996 (Vic) s 37(1A).

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

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9. [2015] VSC 245 (5 June 2015).

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10. Victims of Crime Assistance Tribunal quoted in AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015) [4].

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11. AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015) [43].

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12. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No 7 of 2008 —Directions Hearings, 11 December 2008, 1.

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13. Ibid 1–2.

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14. Ibid 2.

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15. Ibid.

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16. Ibid.

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17. Ibid.

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

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19. Ibid s 34(3).

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20. Ibid.

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21. It should be noted that the Practice Direction uses the phrase ‘legitimate or substantial interest’, while the Act uses the term ‘legitimate interest’ in the notification provision. This is most likely because the provision of the Act dealing with persons who are entitled to appear at the Victims of Crime Assistance Tribunal (VOCAT), not just be notified, refers to those with a ‘substantial interest’.

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22. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No 4 of 2008—Notification of Alleged Offenders and Third Parties, 1 January 2009, 1.

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23. Ibid 2.

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24. Ibid.

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25. Ibid.

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26. Ibid 2–3.

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27. Ibid 3.

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28. Ibid.

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29. Ibid.

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30. Ibid.

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31. Ibid.

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

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33. Ibid s 35(2).

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34. Ibid s 35(3).

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35. Ibid s 35(4).

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36. Ibid s 36(1).

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37. Ibid.

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38. Ibid s 37(2).

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39. Ibid.

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40. Ibid s 37(3).

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41. [2015] VSC 245 (5 June 2015).

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42. Ibid [27]–[28].

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43. Ibid [27].

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44. [2017] VCAT (15 March 2017).

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45. BFK v Victims of Crime Assistance Tribunal [2017] VCAT (15 March 2017) [21].

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46. Victims of Crime Assistance Act 1996 (Vic) s 42(1).

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

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

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49. Ibid s 42(2).

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50. Ibid s 42(3).

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51. Ibid s 42(3)(a)(i). Specifically, an offence against sub-divs (8A), (8B), (8C), (8E) or (8FA) of div 1 of pt I of the Crimes Act 1958 (Vic) or any corresponding previous enactment (sexual offences) or an offence at common law of rape or assault with intent to rape: Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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52. See the comparative table of Australian jurisdictions in Appendix B.

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

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54. Ibid.

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

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

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

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58. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 141 [14.9].

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59. Jenna Bateman, Corinne Henderson and Dr Cathy Kezelman, Trauma-Informed Care and Practice: Towards a Cultural Shift in Policy Reform across Mental Health and Human Services in Australia, Position Paper and Recommendations (Mental Health Coordinating Council, 2013) 5.

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60. Ibid 8.

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61. Ibid 5.

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62. Ibid 9.

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63. Victims of Crime Assistance Act 1996 (Vic) s 43(1).

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64. Ibid s 43(1)(a).

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65. Ibid s 43(1)(b).

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66. Ibid s 43(1)(c).

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67. The penalty is 100 penalty units or imprisonment for two years for a natural person and 500 penalty units for a body corporate: ibid s 43(3).

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68. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 246.

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69. Ibid 247.

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70. Ibid (Recommendations 50 and 51).

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71. Ibid.

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

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73. Ibid s 33(1)(b).

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74. Ibid s 33(1)(c).

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75. Ibid s 33(2).

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76. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 36.

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

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78. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 88–9 [9.38]–[9.46].

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

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

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81. Ibid 89 [9.45]. See also Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 194.

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82. Ibid 197.

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

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

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85. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 90 [9.57].

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86. [2015] VSC 245 (5 June 2015) [28].

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87. See the comparative table of Australian jurisdictions at Appendix B.

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

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

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90. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence, June 2015, 60.

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91. Ibid.

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92. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence, June 2015, 60 (Recommendation 25).

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93. Criminal Procedure Act 2009 (Vic) s 123.

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94. The Family Violence Protection Act 2008 (Vic) prevents a child, other than a child who is an applicant for a family violence intervention order, from giving evidence in a proceeding under that Act unless the court grants them leave to do so. In deciding whether to grant such leave, the court must have regard to the desirability of protecting children from unnecessary exposure to the court system and the harm that could occur to the child and to family relationships if the child gives evidence: s 67.

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95. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016), 214 (Recommendation 41).

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96. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 91 [9.67]–[9.69].

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97. See the comparative table of Australian jurisdictions at Appendix B.

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98. Cathy Kezelman and Pam Stavropoulos, ‘Dealing with Trauma’ (2016) 90(10) Law Institute Journal 36.

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99. Department of Premier and Cabinet (Vic), Family Violence Rolling Action Plan 2017–2020 (2017) 7.

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100. Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds),Victimology (Australian Institute of Criminology, 1996) 251. The ‘DSM-IV’ refers to the Diagnostic and Statistical Manual of Mental Disorders, which is the authoritative guide to the diagnosis of mental disorders.

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

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102. Ibid.

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

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

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105. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 36.

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106. Justice and Community Safety Directorate (ACT), The ACT Victims of Crime Financial Assistance Scheme, Issues Paper (2013) 29.

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