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

15. Approach 2: Is there a need for a different model?

Introduction

15.1 Chapter 14 discussed possible improvements to the operation of the Victims of Crime Assistance Act 1996 (Vic) (the Act) and the Victims of Crime Assistance Tribunal (VOCAT), while retaining the current model.

15.2 However, the supplementary terms of reference also require the Victorian Law Reform Commission (the Commission) to consider whether other models would deliver assistance more effectively, such as an administrative or quasi-administrative model.

15.3 The supplementary terms of reference ask the Commission to bear in mind 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.

15.4 The supplementary terms of reference also require that a financial assistance scheme be efficient and sustainable for the state.

15.5 This chapter discusses options for reform in the context of whether alternative models, or components of alternative models, could more effectively deliver assistance to victims of crime and meet the outcomes outlined above.

Is the current scheme meeting the outcomes specified in the supplementary terms of reference?

15.6 This part discusses the extent to which the current scheme may meet the outcomes specified in the supplementary terms of reference, namely that a state-funded assistance scheme should seek to achieve outcomes for victims that:

• are fair, equitable and timely

• are consistent and predictable

• minimise trauma for victims and maximise the therapeutic effect for victims.

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

Fair, equitable and timely

Fair and equitable

15.8 Current eligibility requirements mean that some victims’ experience of crime may not be adequately recognised under the Act. Some victims may be excluded, although they may be appropriate recipients, because of the narrow victim categories used in the Act, or because of the narrow definitions of ‘act of violence’ and ‘injury’.^[1] In some cases, the broader harms of violence suffered by victims of crime may not be recognised or may be difficult to prove.^[2] Moreover, the categories and quantum of awards, and the ways in which these are determined, may result in outcomes that do not sufficiently recognise the harms suffered by certain victims.^[3]

15.9 Further barriers may be faced by victims when making an application, even where the eligibility criteria are met:

• First, the strict time limits for making an application under the Act may not recognise that the effects of crime can contribute to delayed applications.^[4]

• Secondly, even where a victim is eligible and meets the application time limit, VOCAT can refuse to make an award of assistance. This might be in circumstances where the victim did not report the matter to police within reasonable time, or failed to provide reasonable assistance to police or prosecution. VOCAT may also determine that a victim’s character or behaviour deems them an inappropriate recipient of assistance, even where these considerations do not relate to the circumstances of the victimisation.^[5]

15.10 However, it is also important to consider VOCAT’s role in ensuring that the current scheme is fair and equitable to all persons. VOCAT is required to balance the rights of victims with the rights of alleged perpetrators to be notified about an application, and to appear before VOCAT if necessary.

15.11 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.^[6] This can include the alleged perpetrator.^[7] At the same time, 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.^[8]

15.12 The result of these provisions is that, in practice, VOCAT must balance the rights of alleged perpetrators to be heard with the safety and wellbeing of victims should an alleged perpetrator become aware of the application or wish to attend a hearing.

15.13 This can be a particularly challenging task when allegations made by a victim are countered by contradictory evidence, such as in BFK v Victims of Crime Assistance Tribunal,^[9] where the victim, BFK, made allegations of sexual assault against her ex-boyfriend, YVP, who denied the assault.

15.14 In this case, it was noted by VCAT that ‘VOCAT gave YVP the opportunity to put his view in this proceeding … he responded by way of written statement denying the allegation, referring to their consensual sexual relationship’.^[10]

15.15 At the same time, YVP also submitted that he wished to have no further part in the VOCAT proceeding. In this context, it is interesting to note that, on the victim’s request, VOCAT issued a witness summons to YVP who attended the VOCAT hearing and gave evidence, including being cross-examined by BFK’s and VOCAT’s lawyers.^[11]

15.16 This case demonstrates the extent to which VOCAT’s obligation to ensure procedural fairness and natural justice for the alleged perpetrator is balanced against the victim’s right to assistance under the Act, and a fair assessment of all available evidence, particularly where evidence has not been able to be tested in a criminal court.^[12]

15.17 Some stakeholders consulted by the Commission confirmed the important role of VOCAT in ensuring procedural fairness for alleged perpetrators. It was considered by some stakeholders that the current scheme adequately ensures that persons are notified of an application being made which contains serious allegations against them, and which could result in serious findings being made against them. This was viewed as an essential component of a fair and equitable financial assistance scheme, appropriately overseen by judicial officers experienced in managing the competing interests of these two parties.

15.18 However, other stakeholders told the Commission that the balancing of victim and perpetrator rights under the Act was contrary to the purpose of the Act—to assist victims of crime. In this context, some stakeholders said that the balancing of these interests by VOCAT in fact resulted in a scheme that was ultimately not fair or equitable for victims of crime. Instead, these stakeholders saw this as an example of the rights of alleged perpetrators being placed before the rights of victims to be assisted under the Act, and for their safety and wellbeing to be prioritised.

Timely

15.19 In order to consider the current scheme’s ability to deliver fair, equitable and timely outcomes, it is important to consider the timeliness of award decisions.

15.20 VOCAT has stated that it currently faces ’challenges in keeping pace with the increased number of applications’.^[13] This has resulted in the number of pending applications increasing by 11 per cent between the 2014–15 and 2015–16 reporting period.^[14]

15.21 In June 2017, the Victorian Community Safety Trustee criticised VOCAT’s wait times: ‘if the approach is “victims first”, then the current process warrants review in the interests of quick resolution for victims.’^[15] Previous research has found some sexual assault victims have waited close to a year to access VOCAT-funded counselling awards.^[16]

15.22 During preliminary consultations the Commission was told that some VOCAT applications by family violence victims can take 18 months to two years to be determined. The Commission was also told that some victims did not receive a final determination until four years after their initial application.

15.23 New South Wales research has found that the vast majority of victims who need financial assistance for practical purposes require it within three months of the crime.^[17] However, the average processing time for VOCAT applications is between nine and 12 months.^[18]

15.24 Based on the preliminary consultations and research undertaken by the Commission, a significant cause of these delays may be the current VOCAT application process and the need for victims to provide supporting documentation. In addition, the complexity of the Act and the matters VOCAT must consider often necessitate a significant reliance on submissions from lawyers and the gathering of external evidence. During preliminary consultations the Commission was told that without legal assistance, this administrative burden falls to victims. Together, these factors may contribute to the delay in victims receiving appropriate financial assistance.

15.25 These issues of eligibility, award type and quantum, character and behaviour considerations, the balancing of victim and alleged perpetrator rights, as well as matters of delay, raise the question of whether the current scheme meets the objectives of a fair, equitable and timely scheme.

Consistent and predictable

15.26 During preliminary consultations, concerns were raised about the transparency, consistency and predictability of VOCAT determinations, specifically determinations made ‘on the papers’—approximately 75 per cent of all VOCAT matters.^[19]

15.27 A 2009 review found that VOCAT members can take different approaches in areas such as:^[20]

• documentation required to support an application

• a victim’s prior criminal history or delay in reporting to police

• whether the VOCAT determination should await finalisation of related criminal matters

• the quantum and type of assistance granted, particularly in ‘exceptional circumstances’.

15.28 Combined with a lack of access to written decisions, this could result in a lack of transparency and uncertainty and raises some concerns about the current scheme’s consistency and predictability for victims of crime.

Minimise trauma for victims and maximise the therapeutic effect for victims

15.29 When the Act was introduced in 1996, the Attorney-General articulated a broad intent to ‘maximise the potential for a victim’s recovery from the psychological and physical effects of a violent offence’.^[21]

15.30 However, preliminary consultations and research indicate that the current scheme does not always minimise trauma and maximise therapeutic effect.

15.31 The delays in securing awards can affect victims’ recovery time and make distress worse.^[22] The administrative burden caused by the documentation and evidence requirements has the potential to cause further trauma. The current process for varying an award—often to access counselling—does not enable flexible service delivery nor continuity of services.

15.32 Some stakeholders have queried the therapeutic nature of the scheme given it does not assist victims with longer-term injuries, even if they continue to incur expenses directly related to the act of violence. This issue has also been noted by the Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations.^[23]

15.33 It is also suggested that some scheme considerations, such as the mandatory character and behaviour considerations, may re-traumatise victims and lead to some victims feeling shame, or that they are ‘undeserving’ of compensation. During preliminary consultations, the Commission was told that some lawyers ‘shield’ their clients from section 52 and 54 questions so as not to re-traumatise them.

15.34 For some victims of crime, the potential for a judicial officer to hear their matter in a court-like environment may be a validating experience. It can provide an acknowledgment from the justice system that there has been a crime and that they have suffered harm as a consequence.^[24] In fact, for some victims, the importance of being heard and validated may outweigh any monetary award: ‘most victims want to hear someone say, on behalf of the State of Victoria, that we are sorry that this happened to you.’^[25]

15.35 Some victims’ experience of VOCAT hearings is positive, describing Tribunal members as caring, patient and understanding.^[26] Where an offender had not been prosecuted, victims tended to feel acknowledged and validated by the VOCAT hearing.^[27] During preliminary consultations, the Commission was told this can be particularly powerful in sexual offence matters, where successful prosecution is rare.

15.36 However, research by the Victims Support Agency has found that this is not the case for all victims:

Comments about the VOCAT hearing were mixed. While many participants made positive comments about Tribunal Members and felt acknowledged and validated by the hearing, particularly where no offender was prosecuted, some participants felt distressed by having to recount details of the crime they experienced.^[28]

15.37 Some victims may be distressed by having to give evidence about the crime during VOCAT hearings:^[29]

Having the matter heard by a tribunal member, who listens to a victim’s story and acknowledges their experience, can be a therapeutic experience…However, attending a hearing and giving evidence about the criminal act may further distress others.^[30]

15.38 Although VOCAT is less formal than a court hearing, it is still adversarial in nature. As noted by Chan et al, the ‘adversarial nature of the compensation process for many victim schemes can detract from the well-being of the victim and from the rehabilitative objectives of the scheme’.^[31]

15.39 Some stakeholders were concerned that the scheme was not trauma-informed. The perpetrator notification provisions were highlighted as an example of how the current legal framework fails to account for trauma experienced by victims of family violence, sexual assault or abuse.

15.40 Trauma-informed practice involves modifying aspects of service provision to ensure they reflect a basic understanding of how trauma affects the life of an individual seeking a service.^[32] A trauma-based approach accepts that victims of crime have been harmed as a result of the crime.^[33] One of its benefits is that it avoids re-traumatisation, as the focus is on ensuring physical, psychological and emotional safety.^[34]

15.41 The Law Institute of Victoria has considered the importance of trauma-informed legal practice, including for the judiciary and court staff.^[35] Similarly, Victoria’s Family Violence Rolling Action Plan 2017–2020 has recently recognised the need for the Magistrates’ Court to move towards a more trauma-informed approach to family violence.^[36]

15.42 In 2014, RMIT’s Centre for Innovative Justice recommended in its report Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community, that all Australian jurisdictions should review their crimes compensation tribunals and procedures to ensure that they incorporate appropriate therapeutic practices to improve the experience of victims, and to make them more accessible to more victims.^[37]

15.43 Ian Freckelton has reflected more broadly on the intrinsic lack of understanding and training of decision makers within financial assistance and compensation schemes, stating: ‘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’.^[38] Freckelton supports a specialist approach to victim compensation.

15.44 These issues of delay, lack of long-term support for victims, character and behaviour considerations, and the limited ability of the current scheme to be trauma-informed, raise concerns that some current processes can impact on a victim’s recovery and worsen distress, rather than minimising trauma and maximising therapeutic effect for victims.

Efficient and sustainable for the state

15.45 Victoria’s victim and witness support system is fragmented. Some victim support services, and components of financial assistance and counselling, are provided through the victim support system, while others are available through VOCAT. Financial assistance and counselling are also available through the human services system and delivered by specialist family violence or sexual assault services.

15.46 In practice, many of the supports provided by victim support services can overlap with the assistance available through VOCAT, such as interim awards for security measures or expenses incurred for counselling.

15.47 Accordingly, the question arises as to whether there may be efficiency gains in reducing duplication and overlap of services.

15.48 This was the conclusion reached by Chan et al, who found the victim support and financial assistance schemes in New South Wales to be fragmented before the schemes were merged in 2013:

the spectrum of support and rehabilitation available to victims is broad. However, this support is often fragmented across a range of different service providers and understanding the different support pathways available can be challenging for individuals reaching out for help. The frustration of being passed between service providers, finding information on the eligibility for particular services and completing forms can be overwhelming and detrimental to the welfare of the individual.^[39]

15.49 Some inherent aspects of the current scheme’s design may be creating inefficiencies and limiting the sustainability of the scheme longer term. During preliminary consultations, the Commission was told that there are often significant costs and delays associated with obtaining medical reports. These also affect the operating costs of VOCAT, as VOCAT usually reimburses the costs of medical and psychological reports.

15.50 The reliance on obtaining external documentation leads to a significant reliance on third-party professionals such as medical practitioners and psychologists. There is a risk that this can increase the scheme’s vulnerability to fraudulent claims and victims’ vulnerability to exploitation as well as impact on the timeliness of application decisions.

15.51 These documentation and evidentiary requirements are exacerbated by variation processes which, as the Commission was told during preliminary consultations, often rely on victims having to re-engage lawyers and other professionals to access the further assistance they may need to recover, such as additional counselling sessions.

15.52 While VOCAT has implemented significant reforms to enable non-complex decisions to be made by judicial registrars,^[40] the Chief Magistrate has stated: ‘despite the significant contribution made by Judicial Registrars to the work of the Tribunal, the Tribunal is facing challenges in keeping pace with the increased number of applications’.^[41]

15.53 From a funding perspective, it is possible the scheme could be supplemented by other revenue streams to help ensure its longer-term sustainability. The Consolidated Fund of the State of Victoria^[42] pays for VOCAT’s operating costs as well as the cost of VOCAT awards.^[43] This is in contrast with other schemes which are funded through a combination of revenue streams which usually involve the imposition of victim levies and some offender recovery mechanisms. A number of Australian jurisdictions have implemented victim levies to supplement the funding of their victim compensation schemes. (See Chapter 14.)

15.54 Issues concerning fragmentation and duplication across the victim support system and inefficiencies in practice raise some concerns about the efficiency and sustainability of the current scheme. There may also be opportunities to better support the sustainable operation of the scheme longer term through new funding streams, such as victim levies.

Questions

67 Is the current scheme meeting the outcomes for victims specified in the supplementary terms of reference, namely does it achieve outcomes for

victims that:

(a) are fair, equitable and timely

(b) are consistent and predictable

(c) minimise trauma for victims and maximise the therapeutic effect for victims?

68 Is the current scheme efficient and sustainable for the state?

Discussion and options for reform

15.55 This section of the consultation paper sets out options for reform.

15.56 It considers whether alternative models, or components of alternative models, would better meet the outcomes specified in the supplementary terms of reference.

15.57 It discusses alternative models including:

• whether financial assistance should be part of victim case management and the victim support system

• whether a financial assistance scheme should incorporate restorative justice opportunities

• whether judicial decision making in financial assistance matters is appropriate and sustainable

• whether financial assistance should be a specialised field.

15.58 The Commission raises these options to prompt stakeholder consideration of the ways in which different models could improve outcomes for victims. Some proposals could be implemented on their own, while others might be complementary or reliant on other proposals.

15.59 While these options are considered to be alternative models, since they represent a departure from the current scheme’s operation, some components might also be complementary reform options that could be considered alongside options to improve the current scheme in Chapter 14.

15.60 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether other models could more effectively deliver assistance to victims of crime.

Question

69 Are there other models that would deliver assistance more effectively?

If so, which?

Financial assistance as part of case management and the victim support system

15.61 Establishing closer links between financial assistance and victim support could improve accessibility, awareness and timely provision of support for victims. A number of jurisdictions have moved away from a court or tribunal-based system to the provision of financial assistance as part of broader victim support and/or case management.

15.62 Such schemes often have the potential to offer more holistic support which recognises that financial needs are part of a broader range of victims’ support and information needs.

15.63 This approach could be effective in in Victoria. Victims Support Agency research relating to victims’ experience of VOCAT found that VOCAT-funded counselling was more effective when delivered in conjunction with case management provided through the Victims Assistance Program (VAP) or Centres Against Sexual Assault (CASAs). In circumstances where victims accessed counselling only via VOCAT, without case management support, overall satisfaction with counselling was reduced.^[44] It was suggested that this was because the VAP or CASA case manager was able to connect victims with a more suitable counsellor—either within the agency itself or privately.^[45]

15.64 Moreover, victims linked in with the broader victim support system generally required less counselling than those who accessed VOCAT-funded counselling without case management support:

… early intervention through the [Victim Assistance Program] results in the need for less mental health treatment later. It also suggests that counselling, when received in tandem and as part of a package of other assistance such as practical support, is more effective than counselling on its own.^[46]

15.65 Victims Support Agency research also indicates that many victims want one single point of contact and feel frustrated by the separation of victim support and financial assistance: ‘[victims] expressed the need for a single [telephone] number and a system where applicants do not need to explain their situation more than once, in order to avoid re-traumatisation.’^[47]

15.66 This limitation of the current system has been highlighted by VOCAT itself: ‘Some victims require assistance in several ways. The Tribunal is keenly aware that, in order to obtain such assistance … victims are required to tell their story to each new service they encounter. It can be understandably traumatic to repeat this information over and over.’^[48]

15.67 Research conducted by Elaine Wedlock and Jacki Tapley has emphasised that ‘one of the fundamental problems regarding crime victims is that there is no one agency taking responsibility for them, instead the journey of the victim involves varying degrees of contact from a range of agencies at differing stages in the process’.^[49]

15.68 This has led the Victims Support Agency to conclude that future reforms of the VOCAT scheme should consider ‘an approach that facilitates access to counselling through the broader community based service system’ as this ‘would appear to not only have better outcomes for victims, but would also have the potential to significantly reduce the cost incurred by the state in paying for psychological and psychiatric report fees through VOCAT’.^[50]

15.69 One option for reform therefore involves the adoption of an administrative model whereby financial assistance and case co-ordination run side by side, as in New South Wales and the Australian Capital Territory. This could see an increased reliance on specialist victim support case managers to assess victim needs, including financial assistance needs, while reducing reliance on lawyers.

15.70 An alternative option could be a hybrid administrative and judicial system. The victim support system could administer payments for expenses for counselling, medical expenses, loss of earnings, funeral expenses and other reasonable expenses to assist with recovery. This could be part of victim support case management currently provided by community-based Victim Assistance Programs (VAPs) funded by the Department of Justice and Regulation. Decision making could be similar to the case management framework underpinning current VAP work and the administration of family violence flexible support packages.

15.71 The provision of special financial assistance—referred to as a ‘recognition payment’ in some other jurisdictions—could remain a judicial decision. This payment could continue to be a ‘symbolic expression by the State of the community’s sympathy’ as currently provided for under the current Act.^[51]

Questions

70 Is state-funded financial assistance to victims of crime better provided as part of victim support case management? If so, why, and how should this operate?

71 Alternatively, should some components of Victoria’s state-funded financial assistance scheme for victims of crime be provided as part of victim support case management and others by a judicial or other independent decision maker? If so, what components and how should this operate?

Financial assistance as a restorative justice opportunity

15.72 The supplementary terms of reference ask the Commission to consider how a state-funded financial assistance scheme could maximise therapeutic effects for victims.

15.73 In the then-Department of Justice’s 2009 review of victim compensation, consideration was given to incorporating restorative justice practices within the victim compensation scheme. It was suggested that complementary restorative justice processes could run parallel with the victims’ compensation process to address non-financial matters such as the emotional harm caused by a crime and the issuing of an apology by a perpetrator.^[52]

15.74 The Commission has previously discussed options for inclusion of restorative justice practices within the VOCAT process. In the Commission’s consultation paper in relation to the role of the victims in the criminal trial process, the Commission suggested:

restorative justice could be incorporated into VOCAT processes. VOCAT is already guided by the objects of the [the Act], which include helping victims recover through the provision of financial assistance … In addition, VOCAT aims to provide victims with a forum in which they can have a voice. This function could be enhanced by giving victims the option of attending a victim–offender mediation, in the same room, or separate rooms or via video-link. This would not only allow victims to have a voice, it would require the offender to hear the victim. ^[53]

15.75 However, submissions received on this point were mixed. Some stakeholders were supportive of restorative justice being incorporated into VOCAT proceedings. Victoria Legal Aid (VLA), however, cautioned against it being automatically a part of the VOCAT process, indicating most victims want financial assistance dealt with quickly, with as little contact as possible with an offender. VLA concluded that further exploration of options to build restorative principles into the VOCAT process would need to carefully balance a victim’s and an accused’s rights, given the process would need to manage the risk of harm that can flow from victims having even indirect contact with offenders or from delaying access to compensation.

15.76 Alternatively, and as suggested by RMIT’s Centre for Innovative Justice, further consideration could be given to the development of an appropriate referral pathway from VOCAT to restorative justice conferences, rather than restorative justice practices being incorporated into the VOCAT process itself.^[54]

15.77 There may be merit in considering whether restorative justice practices should be incorporated into a victims’ financial assistance scheme and whether this could maximise the therapeutic effect for some victims of crime.

Question

72 Should restorative justice principles be further considered as a voluntary component of a state-funded financial assistance scheme? Alternatively, should a victims’ financial assistance scheme provide a more direct pathway to restorative justice practices constituted elsewhere in the justice system?

A new decision maker?

15.78 As outlined above, a number of Australian jurisdictions have now moved away from court or tribunal-based decision making towards administrative schemes. With the exception of South Australia, all other states and territories in Australia now have purely administrative schemes.^[55]

15.79 While administrative schemes operate slightly differently in each jurisdiction, they have a number of similarities:

• Applications for assistance are made to victim support agencies with government assessors or specially appointed commissioners as the final decision makers.

• Financial assistance is part of broader service provision and case management support.

• Victims generally do not need to participate in formal hearings.

• Applicants do not require legal assistance to progress their application.^[56]

15.80 An Australian Capital Territory review in 2013 suggested that administrative schemes provide increased transparency and ‘clarity of guidelines for eligibility’.^[57] Other suggested benefits of administrative systems include:

• simplified processes that are more timely

• less costly processes as lawyers are not required

• victims not exposed to a potentially traumatic court-like hearing.^[58]

15.81 However, Victorian research has found victim satisfaction with the current tribunal-based system:

While administratively the compensation process focuses on the decision of allocation of funds, these participants’ comments indicate that the hearings provided more meaning than the (often nominal) monetary award itself. The comments show that the [VOCAT] proceedings were associated by some participants with feelings of validation and vindication.^[59]

15.82 Similarly, Victims Support Agency research found that some victims who had experienced the VOCAT hearing process found it to be a validating forum for recognition and acknowledgment of the harm caused by crime.^[60] The informal nature of the VOCAT hearing was also highlighted as a positive aspect by some victims.^[61]

15.83 As previously considered in Chapters 10, 11 and 12, one option might involve establishing a new administratively based scheme to transfer decision making to non-judicial officers. An alternative option could be to introduce a ‘hybrid’ administrative and judicial system, as discussed above.

15.84 A further consideration is whether decision making would be better vested in a decision maker independent of government and the courts, such as a victims commissioner or compensation commissioner. In New South Wales, this is the Commissioner of Victims’ Rights.^[62] In the Australian Capital Territory, it is the Victims of Crime Commissioner^[63] and in Tasmania, decisions are made by Criminal Injuries Compensation Commissioners appointed by the minister.^[64]

Questions

73 What are the benefits and disadvantages of retaining judicial decision making for the provision of state-funded financial assistance for victims of crime? Are there alternative decision-making models that should be considered? If so, which?

74 Should hearings remain an available option, either at the request of the victim or the decision-maker?

Victim financial assistance as a specialist field of expertise

15.85 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. It was also noted that magistrates presiding over VOCAT matters are not specialist VOCAT magistrates, nor experts in victim needs.

15.86 In this context, the Commission was also told about concerns regarding the potential for re-traumatisation, and a possible lack of victim sensitivity on the part of some VOCAT magistrates, particularly where there were:

• questions about not reporting the crime or not providing assistance to police and prosecution

• questions about a victim’s behaviour or past conduct, including unrelated criminal activity

• inappropriate and irrelevant lines of questioning, including questions about what special financial assistance funds might be spent on, or why the victim had not left an abusive relationship earlier.^[65]

15.87 One option for reform is to establish victims of crime compensation or state-funded financial assistance as a specialist area of work underpinned by a trauma-informed approach. Only decision makers with specialist training and expertise in victim needs and trauma-informed practice could preside over victim compensation decisions or hearings.

15.88 Ian Freckelton has observed that victim compensation schemes are complex and should be recognised as specialised areas of practice.^[66] The courts have previously highlighted the benefits of specially trained and assigned magistrates in the management of family violence matters.^[67]

15.89 State-funded financial assistance as a specialisation could be achieved through:

• appointing VOCAT-only magistrates as a way of acknowledging and managing the increased complexity in matters coming before VOCAT^[68] and creating a more specialised environment, like that created in the Family Violence Court Division

• increasing specialisation within the VOCAT structure itself, through creation of specialist streams, such as family violence and sexual assault, as well as embedding victim support teams within the registry

• appointing specialist decision makers, independent of government and the courts, like the Commissioner of Victims’ Rights in New South Wales,^[69] the Victims of Crime Commissioner in the Australian Capital Territory^[70] or the Criminal Injuries Compensation Commissioners appointed by the minister in Tasmania^[71]

• requiring a minimum level of specialised victim, financial assistance and trauma-informed training and education for any decision maker in the scheme.

Question

75 Should state-funded financial assistance to victims of crime be undertaken by other specialised decision-makers, so as to improve knowledge and awareness of victim needs and to enable a trauma-informed approach? If so, how should this operate?

1. 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’: Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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2. The definitions and categories of ‘primary victim’, ‘secondary victim’ and ‘related victim’ in the Act exclude some categories of victims, such as some family members or people who assist in the aftermath of an act of violence. For categories of victims, see Victims of Crime Assistance Act 1996 (Vic) ss 7, 9, 11.

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3. For example, the special financial assistance categories in the Act may not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence. See, eg, Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 4, 78.

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4. The Victims of Crime Assistance Tribunal (VOCAT) must strike out applications made outside the two-year time limit unless ‘it considers that, in the particular circumstances, the application ought not to be struck out’: Victims of Crime Assistance Act 1996 (Vic) s 29(2).

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5. Even if VOCAT determines that a victim is eligible for an award, VOCAT must nevertheless refuse to make an award of assistance in some circumstances: Victims of Crime Assistance Act 1996 (Vic) ss 52, 54.

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

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7. Ibid.

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8. Ibid s 34(3).

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9. [2017] VCAT (15 March 2017).

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10. Ibid [102].

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11. Ibid [105]–[106].

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12. Police advised BFK that there was insufficient evidence to pursue the alleged assault: ibid [81].

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13. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 9.

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14. Ibid.

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

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16. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 33.

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17. Betty Chan et al, ‘Support and Compensation: Lessons from Victims of Crime’ (Paper presented at the Actuaries Institute Injury Schemes Seminar, Gold Coast, 10–12 November 2013) 19.

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18. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 9.

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19. Ibid 36.

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20. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 46.

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21. Victoria, Parliamentary Debates, Legislative Assembly, 31 October 1996, 1023–7 (Jan Wade, Attorney-General).

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22. Department of Attorney General and Justice (NSW), Review of the Victims Compensation Fund (PricewaterhouseCoopers Australia, 2012) 57.

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23. 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, 558.

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

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25. Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 31.

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26. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 37.

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27. Ibid.

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28. Ibid 59.

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29. Ibid 38.

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30. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper, 18.

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31. Betty Chan et al, ‘Support and Compensation: Lessons from Victims of Crime’ (Paper presented at the Actuaries Institute Injury Schemes Seminar, Gold Coast, 10–12 November 2013) 19.

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32. 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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33. Ibid 8.

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34. Ibid 5.

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

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

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37. Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (RMIT University, 2014) 94.

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38. 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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39. Betty Chan et al, ‘Support and Compensation: Lessons from Victims of Crime’ (Paper presented at the Actuaries Institute Injury Schemes Seminar, Gold Coast, 10–12 November 2013) 19.

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40. In 2015–16, judicial registrars made 21.9 per cent of final awards. See Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 28.

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41. Ibid 9.

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42. The consolidated fund comprises all revenue raised by and granted to the state.

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43. Victims of Crime Assistance Act 1996 (Vic) s 69; Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 63.

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44. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 19.

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45. Ibid.

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46. Ibid 45.

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47. Ibid 35.

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48. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 43.

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49. Elaine Wedlock and Jacki Tapley, What Works in Supporting Victims of Crime: A Rapid Evidence Assessment (Victims’ Commissioner and University of Portsmouth 2016) 25.

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50. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 63–4.

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51. Victims of Crime Assistance Act 1996 (Vic) s 1(2)(b).

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52. Department of Justice (Vic), Reviewing Victims of Crime Compensation: Sentencing Orders and State-funded Awards, Discussion Paper (2009) 48.

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53. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Consultation Paper (2016) 145.

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54. Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (RMIT University, 2014) 94.

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55. South Australia is administrative at first instance, but the applicant may apply to the District Court where there is no agreement with the Crown Solicitor. See the comparative table of Australian jurisdictions in Appendix B.

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56. A number of these similarities were noted in Justice and Community Safety Directorate (ACT), The ACT Victims of Crime Financial Assistance Scheme, Issues Paper (2013) 7.

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57. Ibid.

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

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59. Hayley Catherine Clark, A Fair Way to Go: Criminal Justice for Victim/Survivors of Sexual Assault (PhD Thesis, University of Melbourne, 2011) 117.

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60. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 36.

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61. Ibid 37.

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62. Victims Rights and Support Act 2013 (NSW) s 8.

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63. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 86.

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64. Victims of Crime Assistance Act 1976 (TAS) s 2A.

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65. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 142.

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66. Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds), Victimology (Australian Institute of Criminology, 1996) 252.

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67. 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, 30.

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68. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 9.

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69. Victims Rights and Support Act 2013 (NSW) s 8; Victims of Crime (Financial Assistance) Act 2016 (ACT) s 11(a).

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70. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 86.

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71. Victims of Crime Assistance Act 1976 (TAS) s 2A.

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