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

2. Victim support and financial assistance available for victims of crime

Introduction

2.1 This chapter provides an overview of recent reforms relating to victims of crime in Victoria. This chapter also outlines the support and financial assistance options available in Victoria for victims of crime, including at common law and under statute.

2.2 The broader history and purpose of state-funded financial assistance schemes is summarised to provide context for the operation of the scheme as provided for by the Victims of Crime Assistance Act 1996 (Vic) (the Act) and the Victims of Crime Assistance Tribunal (VOCAT).

2.3 Finally, this chapter provides an overview of recent reviews relevant to victims of crime and statutory financial assistance, to inform broader consideration of the operation of the Act and VOCAT.

Victims’ rights in Victoria

2.4 The past decade has seen an increased focus on the needs and rights of victims of crime in Victoria, in terms of their assistance and support needs as well as their rights in the criminal justice system:

the landscape has changed dramatically for victims of crime. The welfare of victims is now a central concern to governments, as reflected in the enactment of victims’ rights charters, victims’ compensation schemes and victim support services.^[1]

2.5 These needs and rights are reflected both in legislation and government policy.

2.6 The Victims’ Charter Act 2006 (Vic) sets out principles for how Victoria’s criminal justice system and victim service agencies should respond to victims of crime.^[2] These principles include the right of victims to information,^[3] respectful treatment^[4] and some participatory rights, such as the right to make a victim impact statement during the sentencing phase of a criminal trial.^[5]

2.7 The Victims’ Charter Act reaffirms the right of victims to apply for compensation under the Act and to apply to a court for an order under the Sentencing Act 1991 (Vic) that the offender pay them compensation.^[6]

2.8 The Victims of Crime Commissioner Act 2015 (Vic) establishes the Victims of Crime Commissioner and the Victims of Crime Consultative Committee.^[7]

2.9 The functions of the Victims of Crime Commissioner are to advocate for the recognition, inclusion, participation and respect of victims of crime by government departments and agencies, carry out inquiries and report on systemic victim of crime matters to the Attorney-General, and to provide the government with advice on improvements to the justice system to meet the needs of victims.^[8]

2.10 The Victims of Crime Consultative Committee functions as a forum for victims of crime, justice agencies and victim services to discuss improvements to the criminal justice and victim support system and to promote the interests of victims of crime.^[9]

2.11 In May 2017, the Victorian Government announced a range of initiatives aimed at improving responses to victims of crime.^[10] As part of this package, the government announced it would ask the Victorian Law Reform Commission (the Commission) to extend its reference regarding the Act and victims of family violence to consider how to improve the experience of all people who engage with VOCAT.^[11] This announcement was formalised by the Attorney-General providing the Commission with supplementary terms of reference on 7 July 2017.

2.12 At the same time, the government also announced its intention to request the

Sentencing Advisory Council to examine current arrangements for restitution and compensation orders made for the benefit of victims under the Sentencing Act.^[12]

This announcement was formalised with a request to the Sentencing Advisory Council from the Attorney-General on 15 June 2017.^[13] This review is discussed further below at [2.57]–[2.58] among a range of relevant reviews and reforms in Victoria and other Australian jurisdictions.

Victoria’s victim assistance system

2.13 Access to financial assistance under the Act and through VOCAT is only one aspect of a victim’s path to recovery. Victims are unlikely to interact only with VOCAT.

2.14 In practice, most victims also engage with the victim and witness support system and/or with broader community or health system supports. This may include government-funded victim and witness services, as well as specialised support services such as family violence or sexual assault services. In some cases, victims may be involved with a number of different government and non-government support agencies. Victims may also use other general support services, such as their local health centre or general practitioner. The figure below shows Victoria’s victim and witness support system.

2.15 As evident from Figure 1, the current victim and witness service scheme is fragmented, with different services delivered through multiple government and non-government entities. For example, generalist victim and witness support is provided by the Department of Justice and Regulation, while specialist victim responses, such as for family violence and sexual assault, are funded through the Department of Health and Human Services.

2.16 The Department of Justice and Regulation coordinates the delivery of:

• the Victims of Crime Helpline

• the Victims Assistance Program (VAP)

• the Victims Register

• the Prisoner Compensation Quarantine Fund

• the Child Witness Service.^[14]

2.17 With the exception of the Child Witness Service, these programs and initiatives are coordinated by the Victims Support Agency (VSA) within the Department of Justice and Regulation.

2.18 The VSA coordinates delivery of the Victims Assistance Program (VAP) through contracted community-based organisations which provide victim case management services including practical support or therapeutic interventions for victims of violent crime. VAPs provide a range of practical support, information and assistance, including assistance with VOCAT applications and victim impact statements for use in sentencing hearings.

2.19 Victoria Police’s Victims Advisory Unit provides 24-hour assistance to Victoria Police members attending crime scenes. Victim Liaison Officers within the Victims Advisory Unit assess victim needs, provide psychological ‘first aid’, coordinate crime scene clean-up, provide referrals to support services and organise travel arrangements for family members.^[15] Victim liaison officers do not provide long-term case management services like VAPs.

2.20 Witness assistance in Victoria is provided by the Child Witness Service (also part of the Department of Justice and Regulation) and the Office of Public Prosecutions’ Witness Assistance Service (WAS). However, the WAS only provides assistance in prosecutions pursued by the Director of Public Prosecutions.^[16]

2.21 The non-profit organisation Court Network Victoria provides court support for victims and witnesses as part of a broader volunteer-based model and assists all court users on a non-partisan basis. The Salvation Army also provides some court-based support services and may assist some victims and witnesses as well as other court users.^[17]

2.22 In addition to the above, more specialised support and assistance exists for specific types of crime. For example, support for victims of family violence is available through Victoria’s specialist family violence system.^[18] This includes:

• specialist family violence services (including specialist women’s and children’s services)

• police, courts and legal services

• child protection and family services

• housing and homelessness services

• health services (including mental health, drug and alcohol services).^[19]

2.23 As recommended by the Royal Commission into Family Violence, and to better coordinate family violence victims access to this support, the Victorian Government through the agency, Family Safety Victoria, is currently establishing support and safety hubs. Linkages between victims, victim and family violence support services and the justice system, including VOCAT, are expected to improve once these hubs are established.^[20] By the end of 2017 support and safety hubs will operate in five sites around Victoria.

2.24 Victims of sexual assault can access specialist services through the Victorian Centres Against Sexual Assault (CASAs), funded by the Department of Health and Human Services. There are 15 CASAs across Victoria. They provide:

• 24-hour emergency or crisis care for victims/survivors of sexual assault

• crisis counselling

• provision of information and referral to other agencies

• practical assistance and advocacy

• coordination of service provision, including police, forensic, child protection and medical personnel.^[21]

2.25 Additional specialised responses are also available through six multi-disciplinary centres (MDCs) across Victoria, which bring together specialised services including police, child protection, nursing and counselling services at the one location.^[22]

2.26 Some of these specialist services also provide victims with information about VOCAT.

2.27 VOCAT sits independently and separately to the above organisations, as part of the court system. VOCAT has emphasised its close links with victim support services.^[23]

Statutory financial assistance for victims of crime

History and purpose of statutory financial assistance and compensation schemes

2.28 The provision of financial assistance and compensation for victims of crime is not new. As far back as ancient Babylon, legal systems enabled the provision of financial restitution to victims of crime.^[24]

2.29 In Victoria, the Crimes Act 1958 (Vic) as originally enacted could order offenders to pay compensation to victims.^[25] This provision is now reflected in Part 4 of the Sentencing Act, which enables victims to apply for a compensation or restitution order against the offender as part of the sentencing process.^[26] However, these systems are dependent on offenders having the means to pay. Where an offender has no means to pay, as is often the case, the victim will receive nothing.

2.30 Accordingly, and with what Professor Ian Freckelton described as ‘the dawning of awareness of the impact of criminal offences … upon victims’,^[27] arrangements for state-funded and statute-based compensation for crime victims began to emerge in the 1960s and 1970s. The first scheme appeared in New Zealand in 1963, followed by Britain, Canada and the United States.^[28]

2.31 The first Australian scheme was introduced in New South Wales in 1967.^[29] Five years later, in 1972, Victoria’s first scheme was established by the Criminal Injuries Compensation Act 1972 (Vic).^[30]

2.32 Such schemes remain a feature of many common law countries today.^[31]

2.33 Despite the prevalence of such schemes, their justifications are not well defined, or uniform. Indeed, Freckelton described these schemes as having ‘evolv[ed] under … significant “intellectual confusion”’.^[32] A variety of rationales are offered for the establishment of victim compensation or financial assistance schemes. These include

that such schemes:

• are an extension of the welfare state

• formalise state liability for breach of its social contract with the community by failing to prevent crime

• redistribute the costs of crime across the community

• increase victim cooperation with the criminal justice system by encouraging the reporting of crime.^[33]

2.34 In addition, these schemes can also be viewed as a response to the victims’ rights movements and advocacy for better recognition of victims’ needs.^[34]

2.35 However, some academics suggest such justifications are ‘unconvincing’, concluding that such schemes are often established because of public controversy regarding violent crime and vocal public campaigns demanding the state assist victims of crime.^[35] As a consequence, Matthew Hall concluded that most schemes merely contain ‘vague statements of their theoretical justification’.^[36]

2.36 Nevertheless, as Freckelton noted in the Australian context, the emergence of these schemes in the late 1960s and early 1970s marked a new phase in the provision of support for victims of crime, involving the introduction of specialist bodies and tribunals to assess victim compensation claims.^[37]

2.37 However, by the 1990s, the operational costs of these schemes were beginning to be questioned. The number of claims lodged and the amounts of compensation paid had grown enormously, raising concerns about long-term sustainability. Freckelton described this phase as ‘increasingly legalistic and expensive’, and described the schemes as plagued with technical difficulties and delays.^[38]

2.38 In response to concerns about scheme sustainability, some jurisdictions introduced ‘tariffs’ to quantify the amount payable for various injuries or redefined the types of injury that were compensable.^[39] Other jurisdictions tightened scope and compensation levels.^[40] Accordingly, this period represented a ‘backlash against the expenditure involved in state funding of criminal injuries compensation schemes’.^[41] In Victoria, this was demonstrated by the introduction of the Victims of Crime Assistance Act 1996 (Vic) which removed the provision of state-funded compensation for ‘pain and suffering’ for victims.

2.39 However, the end of the 1990s saw what Freckelton described as a ‘re-adjustment’ phase. In Victoria, this was demonstrated by the Victims of Crime Assistance (Amendment) Act 2000 (Vic), which introduced awards of ‘special financial assistance’ for primary victims ‘who suffer significant adverse effects as a direct result of an act of violence’.^[42] However, this amending legislation did not go so far as to reinstate compensation for pain and suffering.

Contemporary statutory financial assistance and compensation schemes

2.40 As a consequence of the various waves of reform, there is now a ‘remarkably disuniform’ victim compensation landscape across Australia.^[43] While all Australian states and territories have state-funded financial assistance or compensation schemes for victims of crime, the way they are administered differs across the jurisdictions.^[44] A comparative summary is provided at Appendix B.

2.41 However, as discussed in this paper, many Australian schemes are beginning to recognise broader notions of ‘violence’ and ‘victimisation’, and to acknowledge different types of crime and their effects. Some Australian schemes have recently been reformed to recognise:

• that there are new forms of violence not previously identified or acknowledged by the community and the justice system that should be recognised by relevant compensation schemes

• that trauma-informed processes and therapeutic outcomes might not be compatible with legal processes

• that impacts on victims of crime are varied, as are victims’ needs.^[45]

2.42 For example, in Queensland, non-criminal family violence behaviours including psychological and emotional abuse, economic abuse and threatening behaviours are now considered an act of violence for the purposes of that state’s victim compensation scheme.^[46]

2.43 There has also been a shift away from court- or tribunal-based systems to the provision of case management and therapeutic interventions alongside financial assistance. This is the approach used in the Australian Capital Territory, Queensland and New South Wales. This approach recognises that victims’ needs vary and that having victims’ needs assessed by specialist victim support workers as part of the broader provision of victim support may be better than making lump-sum payments through a legal process. Victim needs are discussed in further detail in Part Three of this paper.

2.44 In Victoria, and with the exception of amendments in 2000 introducing special financial assistance to primary victims for significant adverse effects, the state-funded statutory financial assistance scheme for victims of crime has not been significantly changed since before the introduction of the Act and the establishment of VOCAT in 1996.

Financial assistance for victims of crime in Victoria

2.45 In Victoria, victims of crime can:

• seek compensation or restitution under the Sentencing Act

• pursue a civil action against an offender for an award of damages

• apply for state-funded financial assistance under the Act.^[47]

2.46 Restitution and compensation orders can be made under Part 4 of the Sentencing Act.^[48] Orders are made as part of the sentencing process and can be made for loss or injury caused as a direct result of the offence where an offender has pleaded guilty or been found guilty.^[49] Restitution orders relate specifically to restoration of stolen goods connected to theft. A compensation order can be made against the offender for the value of any loss or damage as a result of an offence. Compensation orders can also be made for any injury directly caused, as well as for pain and suffering and some expenses incurred (or likely to be incurred).^[50]

2.47 Victims of crime can also sue the offender for damages in a civil action. Civil action can be a significant financial and procedural burden for victims of crime, and the Sentencing Act’s provisions were intended to be a faster and cheaper alternative to pursuing civil proceedings.^[51]

2.48 Compensation orders under the Sentencing Act can result in much higher awards, particularly where an offender has the means to pay, which is a consideration of the court in making orders under the Act.

2.49 Table 1 below shows some recent decisions made under the Sentencing Act provisions, compared with the VOCAT awards made in the same case.

Table 1: Awards made under section 85B of the Sentencing Act 1991 (Vic) compared to

VOCAT awards

2.50 Nonetheless, pursuing a civil action against an offender, or a restitution and compensation order under the Sentencing Act, is often not available or practical for victims. Some victims may be too fearful to pursue these orders. Offenders may not always have the financial means to fulfil such obligations. Enforcing orders often require significant time and effort, and can be costly to pursue.^[52]

2.51 Accordingly, the Act gives victims of violent crime an avenue for state-funded financial assistance where they cannot obtain financial assistance from other sources.^[53]

2.52 As discussed in the first consultation paper, Victoria’s family violence service system now also provides additional state-funded financial assistance for victims of family violence through family violence flexible support packages (FSPs). FSPs enable family violence services to access funds to provide victims with urgent and critical support tailored to their specific needs.^[54] Flexible support packages can be made up to $7000, with an average cost of $3000.^[55] Financial assistance can be sought for safety expenses, housing, medical costs and a broad range of social, economic and community connectedness activities.

2.53 FSPs are intended to assist victims to stabilise and improve their safety in a crisis or post-crisis situation. In this respect, there are parallels with VOCAT’s awards of financial assistance for safety-related expenses. However, the case management framework for provision of FSPs requires case managers to identify the ways in which the package will support the long-term health and wellbeing of the victim.

Recent reviews and reforms

Victorian reviews and reforms

Community Safety Trustee report

2.54 In June 2017, the Victorian Community Safety Trustee released an interim report on the implementation of the Victorian Government’s Community Safety Statement 2017.

2.55 The Community Safety Statement 2017 identifies five priority reform areas aimed at reducing the harm caused by crime and improving community safety. One of these is ‘putting victims first’.

2.56 The interim report raised concerns regarding delays in relation to VOCAT applications:

Currently, on average, it takes around nine months to finalise an application and some matters span more than two years. If the approach is ‘victims first’, then the current process warrants review in the interests of quick resolution for victims.^[56]

Sentencing Advisory Council review of restitution and compensation orders

2.57 In June 2017, the Sentencing Advisory Council was asked to provide advice to the Attorney-General about whether restitution and compensation orders made for the benefit of victims under divisions 1 and 2 of part 4 of the Sentencing Act should become a sentencing option.^[57] This review is in response to a recommendation by the Commission in its report The Role of Victims of Crime in the Criminal Trial Process.^[58]

2.58 The Sentencing Advisory Council’s review will consider whether the purposes of sentencing should include financial reparation for victims, whether there should be a presumption in favour of courts making such orders and whether such orders should be enforced by the state in the manner of a fine. The Sentencing Advisory Council has been asked to report to the Attorney-General by 1 September 2018, two months after the Commission is to report to the Attorney-General.^[59]

Victorian Law Reform Commission review—The Role of Victims of Crime in the Criminal Trial Process

2.59 The Commission’s 2016 report The Role of Victims of Crime in the Criminal Trial Process made recommendations to improve victim experiences during the criminal trial process. A number of these recommendations are in the process of being implemented as part of a broader victims’ initiatives package announced by the Victorian Government in May 2017.^[60]

2.60 Of particular relevance to this reference, the Commission made recommendations about improving the legislative framework and practical operation of restitution and compensation orders against offenders.^[61] As outlined above, these matters are currently being considered by the Sentencing Advisory Council.^[62]

2.61 The Commission also made recommendations relating to the restriction of access to, and use of, VOCAT records to protect victims of crime during the VOCAT and criminal trial process.^[63] The Commission also identified some concerns with access to VOCAT for victims. However, full consideration of these issues was beyond its terms of reference. These recommendations are revisited in this paper in Chapter 11.

Victorian Royal Commission into Family Violence

2.62 The Victorian Royal Commission into Family Violence (the Royal Commission into Family Violence), established in February 2015, comprehensively assessed all components of the government’s and community’s response to family violence. On 29 March 2016, the Royal Commission into Family Violence delivered its final report which concluded that, despite a sustained effort to address family violence in the community through structural and procedural reform, serious limitations to the existing approach remained.^[64]

2.63 The Royal Commission into Family Violence made 227 recommendations, encompassing significant reforms to:^[65]

• risk assessment and management, pathways to services and information sharing

• specialist family violence services and creating a safe home

• responses to children and young people’s experience of family violence (including the child protection system) as well as to adolescents who use family violence

• sexual assault and family violence responses

• police operations and leadership

• court responses, offences and sentencing, restorative justice and family law

• prevention and perpetrator interventions

• health and wellbeing approaches, including in the workplace

• family violence and diversity, vulnerable cohorts and impacts on specific communities

• governance arrangements, industry planning and investment in data and research (including ongoing review of family violence deaths).

2.64 The first terms of reference received by the Commission directly relate to matters raised by Recommendation 106 of the Royal Commission into Family Violence, which recommended that:

The Victorian Law Reform Commission consider the matters the Commission raised in this report in relation to the Victims of Crime Assistance Tribunal and the Victim Assistance Program in its Victims of Crime in the Criminal Trial Process review. To the extent that these matters do not fall within the terms of reference for that review, the Attorney-General should amend the terms of reference or ensure that a separate review of these matters is carried out.^[66]

2.65 Recommendation 106 formed part of the findings of the Royal Commission into Family Violence about ‘recovery and wellbeing’ for victims of family violence. These findings emphasised that the cumulative effects of family violence can be made worse by difficulties victims have in navigating the justice and service system, including attempting to gain social and financial independence.^[67]

2.66 The Royal Commission into Family Violence also supported a further inquiry into the efficacy of a combined victim support and financial assistance scheme, like that administered in New South Wales.^[68]

2.67 These matters, along with other matters specifically addressing issues with the operation of the Act for victims of family violence, were comprehensively discussed in the Commission’s first consultation paper.^[69]

Victorian Government response—Ending Family Violence: Victoria’s Plan for Change

2.68 Ending Family Violence: Victoria’s Plan for Change outlines how the government intends to implement all 227 recommendations of the Royal Commission into Family Violence.^[70] There are four broad outcomes articulated in the plan:

• Family violence and gender inequality are not tolerated.

• Victim survivors, vulnerable children and families, are safe and supported to recover and thrive.

• Perpetrators are held to account, engaged and connected.

• Preventing and responding to family violence is systemic and enduring.

2.69 VOCAT is a key component of victim support and recovery, and directly relates to Outcome 2: Victim survivors, vulnerable children and families, are safe and supported to recover and thrive.

Establishment of support and safety hubs across Victoria

2.70 In July 2017, the Victorian Government released Support and Safety Hubs: Statewide Concept, which outlines the intent, scope, key functions and roles of the support and safety hubs to be launched at five sites by the end of 2017. This initiative relates to Recommendation 37 of the Royal Commission.^[71]

2.71 Support and safety hubs will operate as a single location for victims and perpetrators of family violence to access a range of information and support, rather than having to seek information and support via multiple avenues. Linkages between victims, victim and family violence support services and the justice system, including VOCAT, are expected to improve once support and safety hubs are established.^[72]

2.72 This concept document highlights the need for better connection to VOCAT for victims of family violence and states that the hubs will help victims access VOCAT seamlessly.^[73] The hubs will also work closely with the Victims Support Agency in the provision of existing victim support services.^[74]

2016 Victorian Parliamentary Inquiry into Abuse in Disability Services

2.73 The 2016 Victorian Parliamentary Inquiry into Abuse in Disability Services examined why abuse in disability services is not appropriately reported or acted upon, and how it can be prevented.

2.74 Of particular significance for this reference is the extent to which such victims of crime might face barriers to reporting violence and abuse to police, and why recognition of these barriers is important when making decisions under the Act.

2.75 Acts of violence perpetrated against disability services clients are often not reported to police despite being identified as ‘incidents’ by service providers.^[75] Beyond the obvious justice system implications of this, and the impacts on victims who are subjected to such abuse, these practices also affect a victim’s ability to pursue appropriate recourse through VOCAT.

2.76 In addition, like victims of family violence, victims of abuse perpetrated in the provision of care are frequently subjected to cycles of violence or patterns of abuse. For these reasons, many victims face similar barriers, identified in the Commission’s first consultation paper, to those faced by victims of family violence. These barriers are further considered throughout this paper, including the ‘related criminal acts’ provision of the Act and the special financial assistance formula.^[76]

2014 Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations—Betrayal of Trust report

2.77 The final report of the Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, Betrayal of Trust, was tabled in the Victorian Parliament in May 2014.

2.78 The inquiry considered the way in which religious and other non-government organisations respond to the criminal abuse of children within their organisations.

2.79 Part of the inquiry’s findings related to VOCAT. The inquiry noted that VOCAT provides a viable alternative to civil litigation for victims of criminal child abuse because of its ability to provide an independent acknowledgment of harm, its non-adversarial approach, and the supports provided for victims.^[77]

2.80 Although the inquiry received little evidence about victims’ experiences of VOCAT, evidence suggested some limitations to the ability of the Act and VOCAT to respond adequately to historical child abuse. Issues raised included the two‑year time limit for making an application, the limited compensation available, the lack of ongoing financial support for victims, and the absence of a mechanism for organisations to contribute to awards of financial assistance.

2.81 The inquiry made the following recommendations relating to VOCAT:

• that the Act be amended to specify that no time limits apply for applications for assistance by victims of criminal abuse in organisational settings^[78]

• that the Victorian Government review the functions of VOCAT to consider its capacity to administer a specific scheme for victims of criminal child abuse.^[79]

2.82 While many of the recommendations have been implemented, the Victorian Government has committed to working with the ongoing Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission into Child Sexual Abuse) on matters that intersect with the Victorian inquiry, including the establishment of a national redress scheme in response to the recommendations of the Royal Commission.

2.83 On 4 November 2016, the Minister for Social Services, Christian Porter MP, announced that the Commonwealth Government intends to establish a national redress scheme in response to the recommendations of the Commonwealth Royal Commission into Child Sexual Abuse.

2.84 Prior to this, the Victorian Government had been considering options to implement a state redress scheme based on the recommendation in Betrayal of Trust, and had released a consultation paper suggesting the expansion of VOCAT, with a new specialised stream for historical child sexual abuse in institutional settings. It was envisaged this new stream would have a modified standard of proof and provide a wider range of financial and non-financial benefits as well as remove the legalistic elements of VOCAT’s process.^[80]

2.85 Since the Commonwealth Government announcement in November 2016 relating to the national redress scheme, the Victorian Government has indicated it is consulting with the Commonwealth about the design and structure of a national redress scheme.^[81]

2.86 Therefore, as at the date of this supplementary consultation paper, the recommendations relating to VOCAT in Betrayal of Trust, have not been implemented.

Reviews and reforms in other jurisdictions

Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse

2.87 The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, established in January 2013, requires the Commissioners to inquire into institutional responses to allegations and incidents of child sexual abuse, focusing on systemic issues while being informed by individual cases. Of specific relevance to this reference is the requirement of the Royal Commission to inquire into current redress options for victims of sexual abuse.

2.88 The Royal Commission published its interim report in relation to redress and civil litigation in 2015, recommending the establishment, funding and operation of a single national redress scheme.^[82] The Royal Commission noted that while its report was an interim one, it contained its final recommendations in relation to redress for victims.

2.89 The Royal Commission’s report suggested states and territories could use their existing victims of crime compensation or financial assistance schemes to deliver the services of a national redress scheme. However, the Royal Commission stated that their use should be limited to ‘back office’ operational support, with the national redress scheme establishing nationally consistent branding, application forms and processes, guidelines and processes for determining payments.^[83]

2.90 The Commonwealth Government has committed to the establishment of a Commonwealth Redress Scheme to commence in 2018 for survivors of child sexual abuse in Commonwealth institutional settings.^[84]

2.91 The Commonwealth Government is encouraging states, territories and non-government institutions to opt in to the scheme. However, as at the date of this consultation paper, the national redress scheme has not yet been finalised, although negotiations with states and territories continue. In June 2017, the Commonwealth Government stated:

[The Commonwealth] Government will continue to work with the states and territories and non-government institutions to encourage them to join the Scheme to promote a nationally consistent approach to redress.^[85]

New South Wales—2012 Review of the Victims Compensation Fund

2.92 In 2012, the New South Wales Department of Attorney General and Justice published its report Review of the Victims Compensation Fund. The independent review by PricewaterhouseCoopers found that the objectives of the Victims Support and Rehabilitation Act 1996 (NSW)—to provide support and rehabilitation to victims of violent crime through counselling and compensation—were not being met. This was due to significant delays in the provision of compensation, with an average wait of over two years.^[86] The system was also described as ‘complicated’ because of the need to provide expert medical reports and use lawyers to make claims.^[87]

2.93 The reviewers noted that providing practical assistance shortly after a person experienced an act of violence would better assist victims to begin their healing process.^[88] In particular, the benefits of early provision of funding for relocation assistance, security upgrades and assistance with medical expenses were noted.

2.94 The Victims Rights and Support Act 2013 (NSW) established a new Victims Support Scheme (VSS) and a new Commissioner of Victims Rights. The VSS was designed to provide more tailored, timely and integrated victim support and compensation through the one scheme:

The VSS does not focus on specific injuries sustained by victims, but looks holistically at the impact of a violent crime on victims’ lives as a whole. The VSS focuses on providing victims with practical and financial assistance when they need it most. The new VSS has reduced the amount of lump sum payments previously available … and instead focuses on providing with minimal delay a package of practical and financial support to victims of violent crime with a smaller recognition payment.^[89]

2.95 The VSS is based on four ‘pillars’ of support: counselling, immediate needs, financial assistance and recognition payments. The VSS provides the following assistance, delivered through one agency:

• counselling

• up to $5000 for immediate needs to cover emergency medical treatment, relocation expenses, crime scene clean-up, safety measures in the home

• funeral assistance

• economic loss—up to $30,000 including loss of earnings, out-of-pocket justice-related expenses

• recognition payments—up to $15,000.^[90]

2.96 One of the key features of the scheme is timely access to support and financial assistance. Assistance is now provided in just under three months compared to over two years under the former scheme.^[91]

2.97 By way of comparison, the provision of these services through the New South Wales Victims Support Scheme is equivalent to Victoria’s financial assistance scheme being delivered through the Victims Support Agency in the Department of Justice and Regulation rather than through a separate tribunal.

2.98 A review of the New South Wales Victims Support Scheme is currently underway.

The New South Wales Department of Justice has invited interested organisations to make submissions on the review. However, at the time of writing, a final report has not been published.

Northern Territory—2012 Review of the Victims of Crime Assistance Act

2.99 The Victims of Crime Assistance Act 2007 (NT) was introduced in 2007 to replace an earlier court-based compensation scheme which had been found to be inefficient, slow, overly complex and costly. The 2007 scheme introduced a more streamlined administrative case assessment process for financial assistance, complemented by the provision of free counselling.^[92]

2.100 A statutory review of the operation of the Act commenced by way of an issues paper released in December 2012.

2.101 The issues paper considered similar issues to those considered by the Commission in its first consultation paper, including the way in which related criminal acts are treated, time limits for applications, notification of alleged perpetrators, perpetrator benefit and recognition of family violence for the purposes of specific provisions.

2.102 Minor amendments were made to the Act in 2013 to increase offender levies.^[93] However, there is no publicly available government response to the issues paper nor evidence of any significant changes to the scheme.

Australian Capital Territory—2014 Review of the Victims of Crime Financial Assistance Scheme

2.103 In 2014, the Justice and Community Safety Directorate in the Australian Capital Territory released a paper outlining its proposed model for a new financial assistance scheme for victims of crime.^[94] A new financial assistance scheme subsequently commenced on 1 July 2016.

2.104 The new system abolished the previous court-based system delivered through the Magistrates’ Court. Victim Support ACT, the government body responsible for delivering the Victims Services Scheme, now administers both the financial assistance scheme and victim case management services provided under the Victims Services Scheme.^[95]

2.105 Clients registered for case management can receive assessment, court support, advocacy and therapeutic services.^[96] Assessors at Victim Support ACT process applications for financial assistance and the Victims of Crime Commissioner, the head of Victim Support ACT, is the final decision maker.^[97]

2.106 Victim Support ACT describes the new scheme as reducing barriers for victims of crime by separating the process from the court system and reducing reliance on legal representation.^[98]

Queensland—2015 Final Report on the Review of the Victims of Crime Assistance
Act 2009

2.107 The Victims of Crime Assistance Act 2009 (Qld) introduced an administratively based scheme by establishing Victim Assist Queensland to administer the financial assistance scheme along with services and support for victims of crime.^[99]

2.108 A final report relating to a statutory review of the scheme was published in 2015. Overall, the review found the scheme to be operating well in comparison to the previous court-based scheme.^[100] However, a number of recommendations were made to build on the existing statutory framework. As a result, the Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) was passed in March 2017 to amend the Victims of Crime Assistance Act 2009 (Qld) (the Queensland Act). The amendments came into force in July 2017.

2.109 In the Queensland Act, an ‘act of violence’ now explicitly includes ‘domestic violence’^[101]

as defined in Queensland’s Domestic and Family Violence Protection Act 2012,^[102]

which includes non-criminal conduct, such as psychological and emotional abuse, economic abuse and behaviour that is threatening, coercive or in any other way dominates a person, causing them to fear for their safety or wellbeing or that of someone else.^[103] This makes Queensland the only jurisdiction to provide financial assistance for non-criminal forms of family violence, consistent with its Domestic and Family Violence Protection Act 2012 (Qld).

2.110 The Queensland Act now also has a broader range of injuries for which victims of sexual offences and victims of family violence can claim. Injuries include a sense of violation, reduced self-worth or perception, lost or reduced physical immunity, lost or reduced physical capacity, increased fear or feelings of insecurity, the adverse effect of others reacting adversely to them, the adverse impact on lawful sexual relations and the adverse impact on feelings.^[104]

2.111 The Queensland Act previously enabled victims of sexual assault, child victims and victims of an offender who was in a position of power, influence or trust (‘special primary victims’) to make a report to a counsellor, psychologist or doctor in addition to a police officer. This has now been extended to victims of family violence who are now also considered ‘special primary victims’, meaning that they too can report to this expanded range of professionals.^[105]

2.112 In addition, ‘domestic violence service’ has been added to the list of professionals to whom ‘special primary victims’ can report.^[106]

2.113 In determining whether the applicant had a reasonable excuse for not assisting the police, the government assessor must now have regard to ‘whether the act of violence involves domestic violence’.^[107]

2.114 This makes Queensland the only jurisdiction to make domestic violence an explicit consideration in relation to an applicant not having assisted police.

2.115 The Queensland Act also aims to simplify how victims apply for financial assistance by removing the need for applications to include statutory declarations; removing pools of financial assistance to ensure all applications are considered on their own merit; and introducing a Charter of Victims’ Rights to guide how government and non-government agencies respond to victims.

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

   ↑

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

   ↑

3. Ibid ss 7–11.

   ↑

4. Ibid s 6.

   ↑

5. Ibid s 13.

   ↑

6. Ibid s 16.

   ↑

7. Victims of Crime Commissioner Act 2015 (Vic) s 1.

   ↑

8. Ibid s 13(1).

   ↑

9. Ibid s 32.

   ↑

10. Office of the Premier (Vic), ‘Supporting Victims of Crime in the Justice System’ (Media Release, 7 May 2017).

    ↑

11. Ibid.

    ↑

12. Ibid.

    ↑

13. Sentencing Advisory Council, Restitution and Compensation Orders (2017) <www.sentencingcouncil.vic.gov.au/projects/restitution-and-compensation-orders>.

    ↑

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

    ↑

15. Victoria Police, Meeting the Needs of Victims within a Policy Context (2011) <www.aic.gov.au/media_library/conferences/2011-victim/presentations/green.pdf>.

    ↑

16. The Witness Assistance Service receives referrals in matters prosecuted by the Director of Public Prosecutions. In specific types of cases, referral is mandatory.

    ↑

17. Magistrates’ Court of Victoria, Salvation Army Court and Prison Services (2012) <http://www.magistratescourt.vic.gov.au/court-support-services/support-and-assistance-services>.

    ↑

18. The family violence ‘system’ is comprised of a number of separate, yet interconnected, support components. See, eg, Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 19.

    ↑

19. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 1, 75.

    ↑

20. Department of Premier and Cabinet (Vic), Support and Safety Hubs: Statewide Concept (2017) 53.

    ↑

21. Department of Health and Human Services (Vic), Sexual Assault Support Services (2010) <www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/sexual-assault/support-services>.

    ↑

22. Office of the Minister for Families and Children (Vic), ‘One-Stop Support Centre For Sexual Assault Victims In Gippsland’ (Media Release,

    18 February 2016) 1.

    ↑

23. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 39.

    ↑

24. Robert Francis Harper, The Code of Hammurabi King of Babylon—About 2250 BC (University of Chicago Press, 1904) 19. See also

    Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (LBC Information Services, 2001) 12–14.

    ↑

25. Crimes Act 1958 (Vic) s 83(1), as repealed by Crimes (Amendment) Act 1970 (Vic) s 5.

    ↑

26. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 131. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 230–2.

    ↑

27. Ian Freckelton ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds), Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 31.

    ↑

28. Christine Forster and Patrick Parkinson, ‘Compensating Child Sexual Assault Victims within Statutory Schemes: Imagining a More Effective Compensatory Framework’ (2000) 23(2) University of New South Wales Law Journal 172, 174.

    ↑

29. Criminal Injuries Compensation Act 1967 (NSW).

    ↑

30. Criminal Injuries Compensation Act 1972 (Vic).

    ↑

31. David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 147.

    ↑

32. Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (LBC Information Services, 2001) 53.

    ↑

33. Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 170. See also Ian Freckelton, Criminal Injuries Compensation Law: Law, Practice and Policy (LBC Information Services 2001) 54–62.

    ↑

34. David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 147. See also Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 171 and 174.

    ↑

35. Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 171.

    ↑

36. Ibid 174.

    ↑

37. Ian Freckelton, ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds) Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 42.

    ↑

38. Ibid.

    ↑

39. See, eg, Criminal Injuries Compensation Scheme 2012 (UK) Annex E.

    ↑

40. David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 159.

    ↑

41. Ian Freckelton, ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds), Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 31.

    ↑

42. See the Second Reading Speech for the Victims of Crime Assistance (Amendment) Bill 2000 (Vic): Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1911 (Rob Hulls, Attorney-General).

    ↑

43. Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds), Victimology (Australian Institute of Criminology, 1996) 241.

    ↑

44. Victims of Crime Assistance Act 1996 (Vic); Victims’ Rights and Support Act 2013 (NSW); Victims of Crime (Financial Assistance) Act 2016 (ACT); Victims of Crime Assistance Act 2009 (Qld); Victims Financial Assistance Scheme 2010 (NT); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (TAS); Criminal Injuries Compensation Act 2003 (WA).

    ↑

45. See, eg, amendments to the Victims of Crime Assistance Act 2009 (Qld) which enable non-criminal family violence behaviours including psychological and emotional abuse, economic abuse and threatening behaviours to fall within the definition of an act of violence for the purposes of that state’s victim compensation scheme.

    ↑

46. ‘Domestic violence’ as defined by the Domestic and Family Violence Protection Act 2012 (Qld) s 8.

    ↑

47. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 131.

    ↑

48. Sentencing Act 1991 (Vic) pt 4. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

    ↑

49. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 130–1.

    ↑

50. Ibid 132.

    ↑

51. Ibid 133–4.

    ↑

52. In June 2017, the Sentencing Advisory Council was asked to provide advice to the Attorney-General about whether restitution and compensation orders made for the benefit of victims under divs 1 and 2 pt 4 of the Sentencing Act 1991 (Vic) should become a sentencing option to improve the operation of these provisions for victims of crime.

    ↑

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

    ↑

54. Department of Health and Human Services (Vic), Program Requirements for the Delivery of Family Violence Flexible Support Packages

    (2016) 1; Women’s Health West, Annual Report 2015–16 (2016) 24.

    ↑

55. Department of Health and Human Services (Vic), Program Requirements for the Delivery of Family Violence Flexible Support Packages

    (2016) 1.

    ↑

56. Community Safety Trustee (Vic), Community Safety Trustee: First Progress Report—June 2017 (2017) 14.

    ↑

57. Sentencing Advisory Council, Restitution and Compensation Orders (2017) <www.sentencingcouncil.vic.gov.au/projects/restitution-and-compensation-orders>.

    ↑

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

    ↑

59. Sentencing Advisory Council, Restitution and Compensation Orders (2017) </www.sentencingcouncil.vic.gov.au/projects/restitution-and-compensation-orders>.

    ↑

60. Office of the Premier (Vic), ‘Supporting Victims of Crime in the Justice System’ (Media Release, 7 May 2017) 1.

    ↑

61. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) xxvii–xxviii.

    ↑

62. Sentencing Advisory Council, Restitution and Compensation Orders (2017) <www.sentencingcouncil.vic.gov.au/projects/restitution-and-compensation-orders>.

    ↑

63. Recommendations 50 and 51 recommended that documentation in VOCAT proceedings should be inadmissible as evidence in criminal proceedings except in certain circumstances, and that such documents must not be subpoenaed. See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 247.

    ↑

64. Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 1.

    ↑

65. This is a high-level thematic summary of the 227 recommendations. For a comprehensive list, see Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 45–106.

    ↑

66. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 87.

    ↑

67. Ibid 65.

    ↑

68. Ibid 86.

    ↑

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

    ↑

70. Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) ix.

    ↑

71. Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 37.

    ↑

72. See, eg, ‘Case Study: Marla’s Experience in the Future’, illustrating that a support and safety hub will connect victims with a lawyer to assist with an application to VOCAT: See Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 40–1.

    ↑

73. Department of Premier and Cabinet (Vic), Support and Safety Hubs: Statewide Concept (2017) 53.

    ↑

74. Ibid 54.

    ↑

75. Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services: Final Report (2016) 4.

    ↑

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

    ↑

77. Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013) vol 2, 556.

    ↑

78. Ibid 553.

    ↑

79. Ibid 561.

    ↑

80. Department of Justice and Regulation (Vic), A Victorian Redress Scheme for Institutional Child Abuse, Public Consultation Paper (5 August 2015) 35.

    ↑

81. Department of Justice and Regulation (Vic), Betrayal of Trust Implementation (2017) <www.justice.vic.gov.au/home/safer+communities/protecting+children+and+families/betrayal+of+trust+implementation>.

    ↑

82. Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report
    
    (2015) 322.

    ↑

83. Ibid 317.

    ↑

84. Department of Social Services (Cth), Redress Scheme for Survivors of Institutional Child Sexual Abuse (2017) <www.dss.gov.au/families-and-children/programs-services/children/commonwealth-redress-scheme-for-survivors-of-institutional-child-sexual-abuse>.

    ↑

85. Ibid.

    ↑

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

    ↑

87. New South Wales Government, Submission No 11 to Royal Commission into Institutional Responses to Child Sexual Abuse in Response to Issues Paper 7, Royal Commission into Institutional Responses into Child Sexual Abuse, 2014, 2.

    ↑

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

    ↑

89. New South Wales Government, Submission No 11 to Royal Commission into Institutional Responses to Child Sexual Abuse in Response to Issues Paper 7, Royal Commission into Institutional Responses into Child Sexual Abuse, 2014, 2.

    ↑

90. Ibid 3.

    ↑

91. Ibid 5.

    ↑

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

    ↑

93. Victims of Crime Assistance Amendment Act 2013 (NT).

    ↑

94. Justice and Community Safety Directorate (ACT), The ACT Victims of Crime Financial Assistance Scheme: Proposed Model (2013).

    ↑

95. Victim Support (ACT), Important Changes to the Victims of Crime Financial Assistance Scheme (2017) <www.victimsupport.act.gov.au/functions/latest-news/important-changes-to-the-financial-assistance-scheme>.

    ↑

96. Victim Support (ACT), Annual Report 2015–16 (2016) 14.

    ↑

97. Victim Support (ACT), Frequently Asked Questions (2016) <www.victimsupport.act.gov.au/financial-assistance-scheme/new-financial-assistance-scheme-1-july-2016/>.

    ↑

98. Victim Support (ACT), Annual Report 2015–16 (2016) 29.

    ↑

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

    ↑

100. Ibid 4.

     ↑

101. Victims of Crime Assistance Act 2009 (Qld) s 25(2).

     ↑

102. Ibid sch 3.

     ↑

103. Domestic and Family Violence Protection Act 2012 (Qld) s 8.

     ↑

104. Victims of Crime Assistance Act 2009 (Qld) s 27(1)(f).

     ↑

105. Ibid s 81(2)(a)(iii).

     ↑

106. Ibid s 81(1)(a)(ii). ‘Domestic violence service’ is defined as ‘an entity that provides services to persons who fear or experience domestic violence’: s 81(2).

     ↑

107. Ibid s 82(3)(e).

     ↑