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

1. Background

Introduction

1.1 This paper contains supplementary consultation material prepared by the Victorian Law Reform Commission (the Commission) as part of its review of the Victims of Crime Assistance Act 1996 (Vic) (the Act). It relates to supplementary terms of reference received from the Attorney-General on 7 July 2017.

1.2 The supplementary terms of reference expand the first reference to consider the operation and effectiveness of the Act and the Victims of Crime Assistance Tribunal (VOCAT) for all victims of crime in achieving the purpose and objectives of the Act. The supplementary terms of reference also ask the Commission to consider whether there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model. This consultation paper supplements the Commission’s Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper (the first consultation paper) published in June 2017.^[1]

First terms of reference

1.3 On 22 December 2016 pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), the Attorney-General, the Hon. Martin Pakula MP, asked the Commission to review and report on the provision of state-funded financial assistance to victims of family violence under the Act. The first terms of reference are set out at page ix of this paper.

Supplementary terms of reference

1.4 On 7 July 2017, pursuant to section 5(2)(a) of the Victorian Law Reform Commission Act 2000 (Vic), the Attorney-General asked the Commission to review and make recommendations on supplementary terms of reference in relation to the operation and effectiveness of the Act and VOCAT for all victims of crime.

1.5 The Attorney-General has requested the Commission to provide a single report on both the first and supplementary terms of reference by no later than 27 July 2018. The supplementary terms of reference are set out at page ix of this paper.

The Commission’s approach

1.6 The first terms of reference require the Commission to consider how the purpose and objectives of the Act are realised for family violence victims, having regard to the issues raised by Recommendation 106 of the Victorian Royal Commission into Family Violence. The Commission’s approach to the first terms of reference is detailed in the first consultation paper.^[2]

1.7 As a result of the supplementary terms of reference, the Commission’s approach is now broader, requiring consideration of the overall operation and effectiveness of the Act and VOCAT for all victims of crime. The supplementary terms of reference require the Commission to consider whether:

1) 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

2) the Act recognises the appropriate people as victims

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

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

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

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

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

8) any processes, procedures or requirements under the VOCA Act cause unnecessary delay to the provision of assistance to victims of crime. In considering this, the Commission is asked to consider whether there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model.

1.8 In addition, and consistent with the Commission’s approach to the first terms of reference, the supplementary terms of reference expressly require the Commission to consider how the purpose and objectives of the Act are realised for all victims of crime. This requires the Commission to consider the extent to which the Act and VOCAT:

• assist victims of crime to recover from crime, by paying financial assistance for expenses incurred or reasonably likely to be incurred as a direct result of the crime^[3]

• 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^[4]

• allow victims of crime to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources,^[5] noting 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^[6]

• complement other services provided by government to victims of crime.^[7]

1.9 In considering these matters, the Commission is guided by the objectives specified in the supplementary terms of reference—namely, that a state-funded financial assistance scheme for victims should seek to achieve outcomes for victims that:

• are fair, equitable and timely

• are consistent and predictable

• minimise trauma and maximise the therapeutic effect for victims.

1.10 The supplementary terms of reference specify that a state-funded financial assistance scheme must also be efficient and sustainable for the state.

1.11 The Commission has been asked to consider ways to improve the operation and effectiveness of Victoria’s state-funded financial assistance scheme for all victims of crime, including whether there are other models that would more effectively deliver such assistance. Accordingly, while the purpose and rationale for such schemes is discussed to provide historical context, the Commission does not consider the question of whether or not Victoria should continue to have a state-funded financial assistance scheme for victims of crime.^[8] This is outside the scope of the Commission’s terms of reference.

Consultation paper on first terms of reference

1.12 In June 2017 the Commission published the first consultation paper responding to the first terms of reference.^[9] This followed preliminary consultations with representatives of key stakeholders from the courts and judiciary, government departments, family violence advocacy and service providers, legal services and victim support agencies.

1.13 The first consultation paper considered the findings of the Royal Commission into Family Violence, matters raised during preliminary consultations and preliminary analysis of relevant case law, academic literature, government reviews and inquiries. The first consultation paper did not present any final conclusions.

1.14 The first consultation paper sought the views of victims, persons affected, professionals, stakeholders and the community on key aspects of the Act and the operation of VOCAT as they relate to victims of family violence. The first consultation paper posed 66 questions for consideration. Many of these questions are relevant to the supplementary terms of reference and are posed again in this paper.

1.15 A summary of issues and options raised in the first consultation paper is provided at Appendix A.

1.16 To enable stakeholders to provide a single submission addressing both consultation papers, the Commission has extended the closing date for submissions on the first consultation paper to 31 October 2017 and has set the same date for submissions on this supplementary consultation paper.

Consultation paper on supplementary terms of reference

1.17 This supplementary consultation paper builds on the first terms of reference and introduces new considerations relevant to the broader operation of the Act and VOCAT for all victims of crime. Therefore, new questions are raised consistent with the supplementary terms of reference.

1.18 Part One (Chapters 1–4) outlines Victoria’s broader victim support system and introduces the financial assistance options available to victims of crime. Part One also provides the background to statutory state-funded financial assistance and introduces the scheme in Victoria governed by the Act and VOCAT. Part One provides background information only, and does not raise any questions for community or stakeholder consideration.

1.19 Part Two (Chapters 5–12) addresses substantive issues with the Act as raised by the supplementary terms of reference, including the operation of specific provisions as well as VOCAT processes and procedures necessitated by the Act. Part Two discusses options for reforms and poses questions for community and stakeholder consultation.

1.20 Part Three (Chapters 13–15) considers whether there is a need for a different approach and if so, whether there are models other than the Act and VOCAT that would more effectively deliver assistance, such as an administrative or quasi-administrative model. Part Three discusses options for reform and poses questions for community and stakeholder consultation.

1.21 This paper does not present any final conclusions or views on the matters raised.

Terminology

1.22 The next section explains why the Commission has used particular terminology in this consultation paper, noting there is not universal agreement about the use of particular terms.

‘Victims’ and ‘family violence’

1.23 The first terms of reference use the words ‘victims of family violence’ and ‘victims’ to describe people affected by family violence. The supplementary terms of reference use the term ‘family violence victims’ to describe people affected by family violence and the term ‘victims’ to describe people affected by crime.

1.24 To ensure consistency with both the first and supplementary terms of reference, and the legislative framework in Victoria providing for victim support and rights,^[10] this paper uses the terms ‘victim’, ‘victims’ and ‘victims of family violence’. While the Commission acknowledges that there are some concerns about the use of the term victim, maintaining this terminology ensures consistency with the terms of reference and victim-related legislation in Victoria, including the Victims of Crime Assistance Act 1996 (Vic) and the Victims’ Charter Act 2006 (Vic).

1.25 Neither the first nor supplementary terms of reference define the terms victim or family violence. It is beyond the scope of this reference to consider or review definitions of either victim or family violence.

1.26 The Commission therefore uses the term victim as defined in the Act and the Victims’ Charter Act, the meanings of which are discussed in detail in Chapters 2 and 3.

1.27 The Commission also uses the term family violence as defined in the Family Violence Protection Act 2008 (Vic).^[11] Family violence means any behaviour that:

• is physically, sexually, emotionally, psychologically or economically abusive

• is threatening, coercive, controlling, dominating and causes a family member to fear for the safety or wellbeing of themselves or another family member

• causes a child to hear, witness or otherwise be exposed to the effects of the above behaviours.^[12]

1.28 Accordingly, for the purposes of both this and the first consultation paper, the Commission defines a victim of family violence as any person who has been the victim of any of the above behaviours, whether or not there has been a criminal prosecution or conviction in relation to them.^[13] Not all behaviours captured by the definition of family violence constitute criminal offences. The Royal Commission into Family Violence also used the definition of family violence from the Family Violence Protection Act.^[14]

Perpetrators of violence

1.29 Both the first and the supplementary terms of reference use the term ‘perpetrator’ to describe someone who uses violence, including family violence.

1.30 For the purposes of this paper and consistent with the first consultation paper, the Commission defines perpetrator to mean any person who is alleged to have used violence, whether or not the behaviours have been reported to police or whether or not there has been a criminal prosecution or conviction. This approach is consistent with the terminology used in the first terms of reference and the legislative framework under the Family Violence Protection Act.^[15] In some instances, the term ‘alleged perpetrator’ or ‘alleged offender’ is also used.

Formal consultation on first and supplementary terms of reference

1.31 The next stage of the reference will involve consulting with key stakeholders, interested organisations and individuals to further examine the issues raised by both the first and supplementary terms of reference as discussed in both the first consultation paper and this supplementary consultation paper.

1.32 Consultations will be conducted in September and October 2017.

1.33 The Commission will seek views on the questions posed and test options for reform.

1.34 The Commission intends to consult with the judiciary, victim support and advocacy organisations (government and non-government), family violence support and advocacy organisations, government departments, legal services and key academics.

1.35 In particular, the Commission seeks the views of individuals with direct experience of VOCAT processes, victim support workers who assist victims to access VOCAT, and members of the legal profession whose work interacts with VOCAT. The Commission also welcomes submissions from members of the broader community.

1.36 The feedback and information the Commission receives from submissions and formal consultations, combined with additional research, will inform its recommendations to the Attorney-General.

Final report

1.37 A single report setting out the Commission’s recommendations relating to both the first and supplementary terms of reference will be provided to the Attorney-General by the revised reporting date of 27 July 2018.

1.38 Within 14 sitting days of receipt of the report, the Attorney-General must table the report in the Victorian Parliament. The Victorian Government will then decide whether to implement the Commission’s recommendations. Legislative change will be decided by the Victorian Parliament

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

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2. Ibid 2­–7.

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3. Victims of Crime Assistance Act 1996 (Vic) s 1(2)(a).

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4. Ibid s 1(2)(b).

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5. Ibid s 1(2)(c).

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6. Ibid s 1(3).

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7. Ibid s 1(4).

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8. For discussion on the purpose and rationale of such schemes see, eg, Michael Kirby, ‘Compensation For Victims of Criminal Injuries in Australia’ (Paper presented at the British Institute of International and Comparative Law Conference, Windsor Great Park, United Kingdom, 27 March 1981) 6–7.

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

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10. See Victims of Crime Assistance Act 1996 (Vic) and Victims’ Charter Act 2006 (Vic). The Commission notes the government’s use of ‘victim survivors’ and discussion of terminology in Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) v.

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11. Family Violence Protection Act 2008 (Vic) s 5.

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12. Ibid s 5(1).

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13. Other terms such as ‘domestic violence’ and ‘intimate partner violence’ used in some reports and literature will be accepted as encompassing the range of behaviours outlined in the Family Violence Protection Act 2008 (Vic). See, eg, The Lookout, Fact Sheet 7—Family Violence Statistics (2016) 1.

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14. Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 2.

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15. ‘Perpetrator’ is intended to include: people who use violence; offenders (people who have been criminally prosecuted for violent crimes); alleged offenders (people who are alleged to have committed violence); as well as respondents in intervention order matters, whether or not criminal matters have proceeded.

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