Review of the Victims of Crime Assistance Act 1996: Supplementary Consultation Paper (html)
3. The Victims of Crime Assistance Act 1996
Introduction
3.1 This chapter provides an overview of the Victims of Crime Assistance Act 1996 (Vic) (the Act) which establishes the purpose and objectives of the state-funded financial assistance scheme in Victoria, sets out eligibility for assistance and details the circumstances in which awards of assistance can be made.
3.2 The Act also establishes the Victims of Crime Assistance Tribunal (VOCAT). VOCAT is the key body to which both the supplementary and the first terms of reference relate. It determines all applications for financial assistance made under the Act and is discussed in further detail in Chapter 4.
Policy intent of the Act
3.3 When the Act was introduced, the then Attorney-General, the Hon. Jan Wade MP articulated a broad intent to develop a model more responsive to the needs of victims in order to ‘maximise the potential for a victim’s recovery from the psychological and physical effects of a violent offence’.[1]
3.4 The Attorney-General described the Act as establishing an integrated model of assistance for victims of crime.[2]
3.5 She stated the Act would address the needs of victims of violent crimes and achieve an appropriate balance between the interests of victims, the state and the rights of offenders. Furthermore, the Act would:
• address the physical and psychological needs of a victim of crime by ensuring that appropriate services were available to help the victim make a speedy recovery
• wherever practicable, ensure that convicted offenders made good the harm caused by their crimes by paying compensation for pain and suffering to the victim
• ensure that procedures within the criminal justice system provided a quick and economical means for the redress of harm suffered as a result of the offender’s criminal conduct
• ensure that services provided by the state to victims of crime were affordable.[3]
3.6 However, the Act removed the provision of state-funded compensation for ‘pain and suffering’ for victims, which had been available under Victoria’s preceding criminal injuries compensation laws. To address this omission, the Victims of Crime Assistance (Amendment) Act 2000 (Vic) later introduced new awards of special financial assistance for primary victims ‘who suffer significant adverse effects as a direct result of an act of violence’.[4] While providing for lump-sum payments, this amending legislation did not reinstate compensation for pain and suffering as constituted by previous acts. These provisions are discussed in more detail below and in Chapter 6 of this consultation paper.
Overview of the Act
3.7 Part One of the Act sets out the Act’s purpose and objectives and defines key terminology.
3.8 Part Two of the Act sets out eligibility for assistance.
3.9 Part Three of the Act establishes VOCAT, details the form and timing for applications, sets out the procedures and powers of the Tribunal and outlines the procedures for the making of awards.
3.10 Part Four of the Act sets out procedures for review, variation and refund of awards and Part Five contains miscellaneous provisions.
Purpose and objectives of the Act
3.11 The purpose of the Act is to ‘provide assistance to victims of crime’.[5]
3.12 The objectives of the Act are:
• to assist victims of crime to recover by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, as a direct result of the crime[6]
• to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime[7]
• to allow victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.[8]
3.13 The Act’s purpose and objectives also state that:
• Awards of financial assistance (including special financial assistance) are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.[9]
• The scheme provided by the Act is intended to complement other services provided by government to victims of crime.[10]
3.14 The purpose and objectives of the Act are discussed in more detail in Chapter 14.
Who is a victim under the Act?
3.15 Victims of crime are often defined as people who have suffered in some way as a result of a crime—whether that be physically, emotionally or financially.[11]
3.16 However, the legal definition of ‘victim’ differs depending on the context and applicable legislation. For example, the Victims’ Charter Act 2006 (Vic) defines a victim as a person who has suffered injury or death as a result of a criminal offence, or a family member of a child who has suffered injury or death.[12] The definition of victim in the Sentencing Act 1991 (Vic) is a person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence.[13] ‘Injury’, ‘loss’ and ‘damage’ are common elements in various legislative instruments.
3.17 In the Victims of Crime Assistance Act 1996 (Vic), the definition of victim is narrower.
3.18 First, the victim must be a victim of an ‘act of violence’. An ‘act of violence’ is defined under the Act as a ‘criminal act’ or ‘a series of related criminal acts’ that occurred in Victoria and that ‘directly resulted in injury or death to one or more persons’.[14] The Act defines a ‘criminal act’ as an act or omission that is a ‘relevant offence’.[15] The term ‘relevant offence’ is also defined in the Act as the following offences:
• an offence that involves an assault, an injury or a threat of injury to a person and which is punishable by imprisonment[16]
• the offences contained in subdivisions 8A, 8B, 8C, 8E or 8FA of Division 1 of Part I of the Crimes Act 1958 (Vic), which include rape, sexual assault, sexual offences against children, incest, sexual offences against persons with a cognitive impairment and other sexual offences, as well as the common law offences of rape or assault with intent to rape[17]
• the offences of stalking, child stealing and kidnapping[18]
• conspiracy, incitement or an attempt to commit any of the offences listed above.[19]
3.19 The act of violence must also directly result in ‘injury’ or ‘death’,[20] and/or for primary victims, a ‘significant adverse effect’.[21]
3.20 Therefore, not all people who may identify as a victim of crime may fall within the definition of ‘victim’ under the Act. Eligibility under the Act is discussed in more detail in Chapter 5 of this supplementary consultation paper.
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Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1023 (Jan Wade, Attorney-General).
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Ibid 1024.
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Ibid.
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See Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1911 (Rob Hulls, Attorney-General).
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Victims of Crime Assistance Act 1996 (Vic) s 1(1).
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Ibid s 1(2)(a).
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Ibid s 1(2)(b).
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Ibid s 1(2)(c).
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Ibid s 1(3).
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Ibid s 1(4).
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Victims Support Agency (Vic), The Crime (2017) <http://www.victimsofcrime.vic.gov.au/home/the+crime/>.
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Victims’ Charter Act 2006 (Vic) s 3(1).
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Sentencing Act 1991 (Vic) s 3(1).
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Victims of Crime Assistance Act 1996 (Vic) s 3(1).
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Ibid.
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Ibid.
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Ibid.
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Ibid. The offences referred to are those contained in ss 21A(1), 63 and 63A of the Crimes Act 1958 (Vic) and any corresponding previous enactment.
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Victims of Crime Assistance Act 1996 (Vic) s 3(1).
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Ibid ss 7, 9 and 11.
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Ibid s 8A.
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