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

7. Time limits for making an application to VOCAT

Introduction

7.1 This chapter considers the time limit for making an application under section 29 of the Victims of Crime Assistance Act 1996 (Vic) (the Act).

7.2 This chapter relates to issues raised in the first, second and fourth matters in the supplementary terms of reference which concern:

• whether 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

• whether the Act recognises the appropriate people as victims

• whether the time limits 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.

7.3 The effect of section 29 of the Act is that the Victims of Crime Assistance Tribunal (VOCAT) is required to assess a victim’s behaviour in making a delayed application to it for assistance.

7.4 Questions posed in this chapter relate to the current time limit requirements under section 29, and whether they are clear and working as intended, as well as whether the policy rationale underpinning the time limit requirement is still justifiable.

Time limits under section 29 of the Act

7.5 Under section 29 of the Act, an application for financial assistance must be made within two years of the act of violence occurring.^[1] VOCAT must strike out applications made outside this time limit unless ‘it considers that, in the particular circumstances, the application ought not to be struck out’.^[2]

7.6 Where an applicant wishes to lodge an application outside the two-year time limit, she or he must request leave from VOCAT in addition to completing the usual form. An application for an extension of time must be made by a statutory declaration in the prescribed form.^[3]

7.7 The form requires the applicant to set out her or his reasons for not lodging the application within the time limit and to attach supporting documentation.^[4] The applicant can state whether she or he wishes the time extension to be decided without appearing before VOCAT.^[5]

Consideration of the ‘particular circumstances’ of the case

7.8 In deciding whether an out-of-time application ought not to be struck out in the ‘particular circumstances’, VOCAT must have regard to the following factors:^[6]

• the age of the applicant when the act of violence occurred

• whether the applicant is intellectually disabled^[7] or mentally ill^[8]

• whether the perpetrator of the act of violence was in a position of power, influence or trust in relation to the applicant

• the physical or psychological effect of the act of violence on the applicant

• whether the delay in making the application threatens VOCAT from being able to make a fair decision

• whether the applicant was a child at the time of the act of violence and she or he made the application for assistance within a reasonable time after turning 18 years old

• all other circumstances that VOCAT considers relevant.

7.9 VOCAT’s discretion to consider ‘all other circumstances’^[9] is used to consider factors such as the prospect of success of the substantive case.^[10] It can also be used to consider circumstances such as:^[11]

• whether the applicant can show an acceptable explanation for the delay

• whether it would be fair and equitable to extend the time

• whether VOCAT has been prejudiced by the delay

• whether the delay might result in the ‘unsettling’ of other people

• considerations of fairness to affected individuals.

7.10 The Act also expressly provides that VOCAT must not decide to further hear and determine an out-of-time application only because the applicant was unaware of Victoria’s victims of crime financial assistance scheme or the time limit.^[12] The effect of this is that a victim’s lack of knowledge of the scheme, or the time limit, is itself a barrier to accessing the scheme. Awareness and accessibility of VOCAT is discussed further in Chapter 12 of this supplementary consultation paper.

7.11 FG v Victims of Crime Assistance Tribunal^[13] provides an example of how these factors are used to determine whether an application should be heard out of time. In that case, VOCAT struck out the applicant’s claim because it was lodged approximately 25 to 30 years after the alleged occurrence of sexual abuse by her grandfather. However, the Victorian Civil and Administrative Tribunal (VCAT) set aside VOCAT’s decision, taking into account the fact that the applicant was between five and 10 years old at the time of the alleged offences and her grandfather had been in a position of power and trust. VCAT

also considered the psychological effect of the abuse, which resulted in the delay, and concluded that the delay did not threaten the Tribunal’s capacity to make a fair decision.

7.12 Similarly, in J v Victims of Crime Assistance Tribunal,^[14] VCAT overturned VOCAT’s decision to strike out an application made 35 years after the alleged sexual abuse by the victim’s brother-in-law. VCAT considered the fact that the applicant was between 13 and 18 years old when the acts of violence took place and noted the brother-in-law’s position of power. VCAT also took into account psychological evidence that the trauma of the violence had contributed to the applicant’s delay in making a claim.

7.13 In contrast, in S v Victims of Crime Assistance Tribunal^[15] and BFK v Victims of Crime Assistance Tribunal,^[16] VCAT upheld VOCAT’s decision to strike out the applications for being out-of-time. This was despite both applicants being a similar age to the applicant in J v Victims of Crime Assistance Tribunal^[17] when the acts of violence took place (17 and 18 respectively).

7.14 In S v Victims of Crime Assistance Tribunal,^[18] VCAT distinguished that case from J v Victims of Crime Assistance Tribunal^[19] on the basis that the perpetrator had not been in a position of power, influence or trust over the applicant and that there was no psychiatric evidence linking the trauma of the rape to the applicant’s delay in making an application.^[20]

7.15 In BFK v Victims of Crime Assistance Tribunal,^[21] VCAT affirmed VOCAT’s decision to strike out the application under section 29, finding that the perpetrator had not been in a position of power, influence or trust over the applicant—despite being her boyfriend—due to the fact that he was not significantly older than her and was ‘troubled’ rather than ‘calculating and controlling’.^[22]

7.16 In that case, VCAT upheld VOCAT’s decision, stating that the 23-year delay between the alleged act of violence and the application denied VOCAT the opportunity to make a fair decision:

This delay raises questions as to the accuracy of memories of events long past, particularly in the context of conflicting evidence and all potential corroborating evidence being no longer available. ^[23]

7.17 In Knight v Victims of Crime Assistance Tribunal,^[24] the applicant required leave of the Supreme Court of Victoria to apply to VOCAT due to his status as a vexatious litigant.^[25]

7.18 In order to grant leave to apply to VOCAT, the Supreme Court was required to determine, among other things, that the VOCAT application had reasonable grounds—that is, a real or reasonable prospect of success—in order to determine whether leave should be granted.^[26]

7.19 In order to assess this, the Supreme Court considered whether, despite the VOCAT application being made 30 years out of time, VOCAT would likely allow the ‘out of time’ application. The applicant alleged that he was sexually assaulted by a stranger on public transport in 1981, at the age of 13 years.

7.20 The Supreme Court determined that a number of factors weighed heavily against the proposed application surviving section 29 of the Act, including that: ^[27]

• the ‘very lengthy delay’ would threaten the capacity of the Tribunal to make a fair decision

• the delay was compounded by the fact the alleged assault was not reported to police

• VOCAT would be unlikely to be able to obtain material from a police investigation which would assist it in making a fair decision and ameliorate the effect of the delay

• there was no significant corroborative evidence that would assist VOCAT to judge the veracity of his allegations

• although the applicant was a child at the time of the alleged assault, there had been a further delay of 29 years since the applicant had turned 18 years of age

• the applicant had not pointed to any effect of the alleged assault in causing the delay in making the application.^[28]

7.21 The court also considered the applicant’s litigation history of attempting to commence over 50 legal proceedings, actions which appeared to contradict his account that he had thought more about the alleged assault, and therefore the VOCAT application, only because of the Royal Commission into Institutional Responses to Child Sexual Abuse.

7.22 In conclusion, the court stated ‘[the applicant’s] substantive application has no significant merit. In combination, these reasons result in the overwhelming likelihood that if this proposed application were allowed to proceed it would be struck out by the Tribunal pursuant to s 29 of [the Act]’.^[29]

Discussion and options for reform

7.23 This section sets out options for reform to address concerns that some victims of crime are unfairly disadvantaged by the two-year application time limit.

7.24 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether the time limit provisions in section 29 of the Act should be amended. Possible options for reform and questions are set out below.

Is the time limit a barrier for victims of crime?

7.25 VOCAT frequently grants applications for an extension of time and, as noted above, the considerations listed in section 29 of the Act require VOCAT to consider some specific vulnerabilities of victims.^[30]

7.26 However, as the Commission discussed in the first consultation paper, the time limit requirements under section 29 of the Act create specific barriers for family violence victims, given the time it can take victims to identify, disclose and report their abuse.^[31]

7.27 Many of these barriers may also apply to other victims of crime, who may face similar challenges in identifying, disclosing and reporting acts of violence, including victims of child sexual assault, victims of abuse or neglect in care, victims with disability and adult victims of sexual assault.^[32]

7.28 Additionally, regardless of crime type, the time limit for making an application can be a barrier for more vulnerable groups of the community such as those with disability, members of the LGBTIQ community, Aboriginal and Torres Strait Islanders, children and those from non-English-speaking backgrounds.^[33]

7.29 Although VOCAT may frequently grant extensions of time, as discussed in the first consultation paper, the mere existence of the time limit may itself also be a barrier for some victims.^[34] This is supported by judicial comments in BFK v Victims of Crime Assistance Tribunal.^[35] In that case, VCAT noted that section 29 of the Act is ‘couched in strong terms’, given the Act states the Tribunal ‘must strike out’ an application made out of time. This ‘strong’ language is contrasted with the more flexible and neutral language employed in other provisions of the Act using terminology such as ‘may’.^[36]

7.30 In addition, while section 29(3) of the Act allows VOCAT to consider certain factors that may account for delayed applications, such as whether the perpetrator was in a position of power, trust or influence over the applicant, these factors have been interpreted narrowly in some circumstances by the courts.

7.31 For example, in BFK v Victims of Crime Assistance Tribunal,^[37] VCAT held that the alleged perpetrator was not in a position of power, trust or influence over the applicant even though he was her boyfriend at the time of the alleged act of violence and allegations included that he sexually assaulted her while barricading the bedroom door, forcefully pushing the applicant and making threats of self-harm.^[38]

7.32 Similarly, while VOCAT can have regard to ‘whether the applicant was a child at the time of the occurrence of the act of violence and the application was made within a reasonable time after he or she reached the age of 18’,^[39] this provision is unlikely to assist child victims who may not identify or disclose abuse until much later in life. Underpinning this provision is an assumption that once a person turns 18 years old, they will be able to promptly address the trauma associated with such violence.

7.33 For some victims, some acts of violence may not be able to be processed until much later in life. Recent research by the Royal Commission into Institutional Responses to Child Sexual Abuse found that for victims aged approximately 11 years old at the time of alleged sexual abuse, the average time taken to make a complaint to the Catholic Church was 33 years.^[40] In BFK v Victims of Crime Assistance Tribunal,^[41] for example, the applicant stated she had repressed her emotions despite remembering the alleged sexual assault.^[42]

7.34 The Supreme Court’s comments in Knight v Victims of Crime Assistance Tribunal raise questions about how delayed childhood sexual assault applications might be treated by VOCAT given that many of these cases, without the complication of vexatious litigation considerations, would involve almost identical circumstances to those outlined in Knight v Victims of Crime Assistance Tribunal, including:

• ‘very lengthy delays’, often over 30 years, with no report made to police

• lack of available material from a police investigation to ameliorate any effects of the delay

• no corroborative evidence that would assist VOCAT to judge the veracity of allegations.^[43]

7.35 These issues have prompted the Department of Justice and Regulation to state in their consultation paper, A Victorian Redress Scheme for Institutional Child Abuse, that if VOCAT was to be used for a national redress scheme for historical childhood sexual abuse, the standard of proof might need to be modified and the evidentiary burden placed on claimants ‘softened’.^[44]

7.36 Although ultimately taken into account by VCAT on appeal, the first instance decisions of VOCAT in FG v Victims of Crime Assistance Tribunal^[45] and J v Victims of Crime Assistance Tribunal^[46] indicate section 29 may not adequately take into account the trauma associated with childhood sexual assault and its impact on timely VOCAT applications.

7.37 However, it is difficult to ascertain whether matters are being unfairly struck out under section 29. In 2015–16, 1644 applications were either withdrawn or struck out, close to 30 per cent of all applications. The data does not distinguish between those withdrawn or struck out, so it is difficult to quantify how many applications might be struck out under section 29 in circumstances where it might be considered reasonable to allow an out-of-time application. This limits the ability of the Commission to understand the way in which section 29 is operating in many circumstances.

7.38 Options to address concerns that some victims of crime are unfairly disadvantaged by the two-year time limit on applications are set out below, along with specific questions for consideration.

Increasing the application time limit

7.39 One option is to increase the time period prescribed in section 29 of the Act.

7.40 Victoria’s two-year time limit is consistent with New South Wales and Northern Territory. However, the Australian Capital Territory, Queensland, South Australia, Tasmania and Western Australia all prescribe a three-year time limit.^[47]

7.41 A variation of this option is to increase the time limit for specific crime types. This option recognises that some groups of victims face increased barriers to disclosing or reporting abuse and consequently, making an application to VOCAT. As discussed above, these are commonly accepted to be victims of acts of violence perpetrated against children, sexual assault (including historical child sexual abuse), family violence, elder abuse and violence or abuse in care.

7.42 New South Wales has adopted a similar approach in its legislation, which provides for a 10-year time limit for the bringing of an application by victims of domestic violence, child abuse or sexual assault.^[48] If the victim was a child at the time of the act of violence, then the 10-year time limit starts running from the day that they turn 18, rather than from the date of the act of violence.^[49]

Question

26 Is the two-year time limit to make an application to VOCAT under section 29 of the Act still appropriate? If not, what would be an appropriate application time limit? Alternatively, should different application time limits apply for different types of crime?

Removing the application time limit

7.43 Alternatively, the time limit could be removed entirely for some types of offences. This approach was previously recommended by the Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations (Betrayal of Trust report) where it was recommended that the Act be amended so that no time limits apply for applications by victims of abuse in organisational settings.^[50]

7.44 An example of this can be seen in New South Wales where there is no time limit for the primary victim of a sexual offence against the person when the person is under 18.^[51]

7.45 Similarly, in Nova Scotia (Canada), no time limit applies for victims of sexual offences committed by people in a position of trust or authority or by people upon whom the victim was financially, emotionally, physically or otherwise dependent.^[52] In addition, no time limit applies in British Columbia (Canada) where the application relates to sexual offences.^[53]

7.46 This approach acknowledges that victims of some kinds of violence may need more time to make an application for assistance. However, this approach may not assist victims of other types of crime who might not make a timely application because of other personal factors unrelated to the type of crime, such as culture or ethnicity, socio-economic status or the victim’s past interactions with authorities. These are typically victims experiencing other forms of disadvantage or vulnerability.

7.47 Another option is to have time limits for some components of assistance—like special financial assistance—but no time limit for others. This has been implemented in the New South Wales scheme where victim support and financial support are provided through a combined Victim Support Scheme administered by Victims Services, part of the New South Wales’ Department of Justice.^[54]

7.48 Under this scheme, there are no time limits to the provision of information, victim support and referral services, as well as counselling to assist recovery. However, financial loss and recognition payments have a two-year time limit, except when victims of sexual assault were children at the time of the offence.

Question

27 Should some types of crime be excluded from application time limit provisions entirely? Should some time limits start after a victim turns 18? Alternatively, should some components of victim support and financial assistance not have a time limit?

Granting an extension of time—is there a need for additional considerations?

7.49 Another option is to add additional considerations to the list of factors in section 29(3) of the Act that VOCAT must consider when making a decision about whether or not to strike out a late application.

7.50 Additional factors might include further matters relating to increased vulnerability and acknowledgment of community diversity, as well as specific factors related to the effects of particular types of crime.

Question

28 Are the factors VOCAT may currently consider in determining whether to hear an application out of time sufficient? Should other factors be included in the Act? If so, what additional factors should be included?

Improving transparency in the decision-making process

7.51 Another option, which could be considered alongside the above-mentioned options, is to increase the transparency of the decision-making process under section 29 by requiring VOCAT to publish data on applications struck out under section 29 and the reasons for these decisions. This would give victims and their legal or support representatives clearer guidelines and understanding of the factors the Tribunal takes into account. This would help improve certainty for victims and help ensure greater consistency in decision making by VOCAT.

7.52 However, this option does not address the substantive issues with section 29.

Question

29 Should VOCAT be required to publish data and reasons for decisions made in relation to section 29 of the Act? If yes, what data should be provided and how should it be published?

1. Victims of Crime Assistance Act 1996 (Vic) s 29(1).

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2. Ibid s 29(2).

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3. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No. 2 of 2016—Extension of Time for Lodgement,

   1 May 2016.

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4. Victims of Crime Assistance Tribunal, Application for Extension of Time Form (2016) <www.vocat.vic.gov.au/application-extension-time-form>.

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5. Ibid.

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6. Victims of Crime Assistance Act 1996 (Vic) s 29(3).

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7. ‘Intellectually disabled’ within the meaning of the Disability Act 2006 (Vic).

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8. ‘Mentally ill’ within the meaning of the Mental Health Act 2014 (Vic).

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9. Victims of Crime Assistance Act 1996 (Vic) s 29(3)(g).

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10. See, eg, BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017); J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002).

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11. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [11].

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12. Victims of Crime Assistance Act 1996 (Vic) s 29(4).

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13. [2011] VCAT 2449 (1 September 2011).

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14. [2002] VCAT 532 (24 July 2002).

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15. [2002] VCAT 1257 (7 November 2002).

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16. [2017] VCAT (15 March 2017).

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17. [2002] VCAT 532 (24 July 2002).

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18. [2002] VCAT 1257 (7 November 2002).

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19. [2002] VCAT 532 (24 July 2002).

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20. S v Victims of Crime Assistance Tribunal [2002] VCAT 1257 (7 November 2002) [22].

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21. [2017] VCAT 289 (15 March 2017).

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22. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [117].

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23. Ibid [121].

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24. [2017] VSC 133 (30 March 2017) [6].

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25. As per the Vexatious Proceedings Act 2014 (Vic). See also, Knight v Victims of Crime Assistance Tribunal [2017] VSC 133 (30 March 2017) [6].

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26. Knight v Victims of Crime Assistance Tribunal [2017] VSC 133 (30 March 2017) [9].

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27. Ibid [18].

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28. Ibid.

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29. Ibid.

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30. See, eg, Victims of Crime Assistance Act 1996 (Vic) s 29(3)(a)–(d), (f).

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31. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 78–9 [8.34]–[8.40]

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32. For example, recent research by the Royal Commission into Institutional Responses to Child Sexual Abuse found that for victims aged approximately 11 years at the time of alleged sexual abuse, the average time taken to make a complaint to the Catholic Church was 33 years, see Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. See also Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services: Final Report (2016) 59, discussing reasons why victims with disability may face barriers to reporting abuse.

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33. See, eg, Angela Dwyer, ‘Policing Lesbian, Gay, Bisexual and Transgender Young People: a Gap in the Research Literature’ (2011) 22(3) Current Issues in Criminal Justice 415, 416, discussing the unwillingness to report to police among LGBTIQ victims of crime. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6, discussing the unwillingness to involve authorities among LGBTIQ victims of family violence. See also Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 11, discussing the unwillingness to report to police among Aboriginal and Torres Strait Islander victims of crime.

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34. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 79.

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35. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017).

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36. Ibid [12].

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37. [2017] VCAT 289 (15 March 2017).

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38. Ibid [117].

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39. Victims of Crime Assistance Act 1996 (Vic) s 29(3)(f).

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40. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. This research report refers to ‘claims’ of sexual abuse, defined as either ‘claims’ or ‘complaints’ of sexual abuse made against Catholic Church personnel either related or unrelated to a redress scheme, such as the Catholic Church’s ‘Towards Healing’ or ‘Melbourne Response’ redress schemes.

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41. [2017] VCAT 289 (15 March 2017).

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42. Ibid [50].

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43. Knight v Victims of Crime Assistance Tribunal [2017] VSC 133 (30 March 2017) [18].

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44. Department of Justice and Regulation (Vic), A Victorian Redress Scheme for Institutional Child Abuse, Public Consultation Paper

    (5 August 2015) 34.

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45. [2011] VCAT 2449 (1 September 2011).

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46. [2002] VCAT 532 (24 July 2002).

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

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48. Victims Rights and Support Act 2013 (NSW) s 40(5).

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49. Ibid.

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50. 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, 553.

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51. Victims Rights and Support Act 2013 (NSW) s 40(7).

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52. Victims’ Rights and Services Act, RSNS 1989, c 14 (Nova Scotia) s 11B(2).

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53. Crime Victim Assistance Act, SBC 2001, c 38 (British Columbia) s 3(4).

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54. Victims Services, Department of Attorney General and Justice (NSW), About Us (2016) <www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_aboutus/vs_aboutus.aspx>.

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