5. Eligibility for assistance by VOCAT

 

Introduction to Part Two

  1. 5.1 This part of the supplementary consultation paper provides an overview of the key issues with the Victims of Crime Assistance Act 1996 (Vic) (the Act) relevant for all victims of crime as identified in the supplementary terms of reference.
  2. 5.2 Many of these issues are the same or substantially similar to the issues with the Act raised in the first consultation paper, Family Violence and the Victims of Crime Assistance Act 1996 Consultation Paper as relevant to victims of family violence.1 However, the supplementary terms of reference also raise a number of new matters for consideration which are also considered in this part.
  3. 5.3 The key issues are:
  • the eligibility test for assistance
  • the categories and quantum (amount) of awards
  • the time limits for making an application
  • the making of awards, including mandatory refusal of an award and review, variation and refund of awards
  • timeliness of awards
  • VOCAT hearing processes, including notification of the alleged perpetrator, use of VOCAT materials and determinations without a hearing
  • awareness and accessibility of the Victims of Crime Assistance Tribunal.
  1. 5.4 Each chapter in this part outlines the relevant provisions of the Act and the VOCAT process, considers how these provisions may affect victims and discusses options for reform.
  2. 5.5 This part follows the approach of the first consultation paper, drawing on reports and inquiries that relate to the supplementary terms of reference and on academic literature. This part also uses case law to highlight how the Act functions for all victims of crime. However, as the Commission found in relation to the first consultation paper, there are very few decisions of the Victims of Crime Assistance Tribunal (VOCAT) publicly available. Accordingly, the Commission mainly relies upon review decisions by the Victorian Civil and Administrative Tribunal (VCAT) and the Supreme Court of Victoria.

 Introduction to Chapter 5

  1. 5.6 This chapter discusses the eligibility criteria that an applicant must meet in order to be granted financial assistance under the Act.
  2. 5.7 It relates to issues raised in the second, third and fourth matters of the supplementary terms of reference, which ask the Commission to consider:
  • whether the Act recognises the appropriate people as victims
  • the tests for eligibility for assistance
  • the definition of ‘act of violence’.
  1. 5.8 This chapter details the difficulties some victims can experience because of the narrow definitions used in the eligibility criteria. In particular, this chapter discusses obstacles that can be encountered in relation to:
  • the different victim categories under which an applicant can apply for assistance
  • the requirement for there to have been an ‘act of violence’
  • the requirement for there to have been ‘injury’, ‘death’ or a ‘significant adverse effect’
  • the requirement that the injury, death or significant adverse effect is the ‘direct result’ of the act of violence.
  1. 5.9 The chapter also sets out some options for reform to improve access for victims, and poses questions for consideration.

Who is eligible?

  1. 5.10 In summary, a person is eligible for financial assistance under the Act if they are the ‘primary’, ‘secondary’ or ‘related’ victim of an ‘act of violence’, and that act of violence directly results in their suffering ‘injury’, ‘death’ or, for primary victims, ‘a significant adverse effect’.

The victim categories

  1. 5.11 Under the Act there are three categories of victim who may be eligible for assistance:
  • primary victims
  • secondary victims
  • related victims.
  1. 5.12 Depending on the category under which a person makes an application, he or she will be eligible for different kinds of assistance. The categories and quantum (amount) of financial assistance available are discussed in Chapter 6. This chapter focuses on eligibility.
  2. 5.13 Under the Act, an applicant can only apply to VOCAT in one capacity— even if she or he is eligible under multiple victim categories.2

Primary victims

  1. 5.14 Under the Act, there are two ways that a person can be a primary victim:
  • Section 7(1) states that ‘a primary victim is a person who is injured or dies as a direct result of an act of violence committed against him or her’. Section 8A(1) adds that a person is also a primary victim ‘if he or she experiences or suffers a significant adverse effect as a direct result of an act of violence’.
  • Section 7(2) provides that a person is also a primary victim if they are injured or die as a direct result of trying to arrest a perpetrator of an act of violence, trying to prevent an act of violence or trying to aid or rescue a victim of an act of violence.
  1. 5.15 To qualify as a primary victim under section 7(2), the attempt to arrest, prevent, aid or rescue must be proactive.3 This means that if a person accidentally interrupts an act of violence, even if it ultimately prevents the offence or assists the victim, she or he is not a primary victim. In Smith v Victims of Crime Assistance Tribunal,4 a daughter who went to check on her mother and inadvertently interrupted an assault by her father was found to be a secondary, rather than primary, victim.
  2. 5.16 Section 7(2) also provides that the person intervening in an act of violence only has to ‘believe on reasonable grounds’ that someone has committed an act of violence, or that someone is the victim of an act of violence, in order to be a primary victim on this basis.
  3. 5.17 If the primary victim dies, her or his right to receive financial assistance under the Act does not survive for the benefit of her or his estate.5

Secondary victims

  1. 5.18 The Act provides that there are two ways for a person to be a secondary victim:
  • Section 9(1) states that a person is a secondary victim if they are present at the scene of an act of violence and are injured as a direct result of witnessing that act.
  • Section 9(2) states that a person is a secondary victim if they are the parent or guardian of a primary victim, who is under 18 at the time of the event, and they are injured as a direct result of subsequently becoming aware of the act of violence against their child.
  1. 5.19 The Act provides that a person is not a secondary victim under section 9(2) if they
    commit or are criminally responsible for the act of violence committed against the
    primary victim.6

Related victims

  1. 5.20 A person is a ‘related victim’ under the Act if there is a primary victim who has died as
    a direct result of an act of violence and the person is:
  • a ‘close family member’ of the deceased primary victim
  • a ‘dependent’ of the deceased primary victim
  • someone who has an ‘intimate personal relationship’ with the deceased primary victim.7
  1. 5.21 The Act defines a ‘close family member’ as a ‘person who had a genuine personal relationship with the victim at the time of the death’ and is the spouse, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, step-brother or step-sister of the victim.8 This list is exhaustive and excludes other types of family members.
  2. 5.22 A ‘dependant’ means an individual who was wholly or substantially dependent on the victim’s income before the commission of the act of violence, or the child of a victim who would have been dependent on the victim but who was born after their death.9
  3. 5.23 ‘Intimate personal relationship’ is not defined in the Act. However, the term ‘intimate personal relationship’ has been the subject of judicial consideration. In Reid v Victims of Crime Assistance Tribunal,10 VCAT held that some or all of the following factors could indicate the existence of an ‘intimate personal relationship’:
  • an ongoing sexual relationship
  • an ongoing emotional commitment
  • an ongoing provision of comfort, support and advice of a personal nature
  • an ongoing sharing of confidences, intimacies and personal information
  • an ongoing sharing of social contacts and attendances at social functions.11
  1. 5.24 In that case, VCAT also held that the following factors (in the absence of other indicators) may not constitute an ‘intimate personal relationship’:
  • financial or other material support
  • a sharing of residential property
  • occasional contact personally or by correspondence or telephone
  • meeting or sharing at times of family events, including religious, ethnic or other holiday periods.12
  1. 5.25 Based on these factors, VCAT found in Reid v Victims of Crime Assistance Tribunal that a close relationship between an aunt and a niece did not constitute an ‘intimate personal relationship’.13
  2. 5.26 In addition, in order to be a related victim or a secondary victim, there must be a primary victim. In McKenna v Victims of Crime Assistance Tribunal,14 VCAT held that the mother of an unborn child, who died in the womb as the result of an act of violence, was not a related victim.15 This is because the unborn child was not a ‘person’ for the purposes of the definition of a primary victim in the Act.16
  3. 5.27 The Act also excludes related victims from applying for financial assistance under the Act if they commit or are criminally responsible for the act of violence in question.17

The requirement for ‘an act of violence’

  1. 5.28 To be eligible for assistance under any of the three victim categories, the Act requires that there must have been an ‘act of violence’.
  2. 5.29 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’.18
  3. 5.30 The Act defines a ‘criminal act’ as an act or omission that is a ‘relevant offence’.19 The term ‘relevant offence’ is also defined in the Act as the following offences:
  • an offence that involves an assault, an injury or a threat of injury to a person and which is punishable by imprisonment20
  • sexual offences contained in subdivisions 8A, 8B, 8C, 8E or 8FA of division 1 of part I of the Crimes Act 1958 (Vic), which include rape, sexual assault, sexual offences against children, incest, sexual offences against persons with a cognitive impairment and other sexual offences, as well as the common law offences of rape or assault with intent to rape21
  • the offences of stalking, child stealing and kidnapping22
  • conspiracy, incitement or an attempt to commit any of the offences listed above.23
  1. 5.31 In addition, the Act defines a ‘criminal act’ as including an act or omission that would have constituted one of the relevant offences if the perpetrator had not been incapable of criminal responsibility due to their age, mental impairment or the existence of any other defence.24
  2. 5.32 In a number of cases, VCAT has held that an ‘act of violence’ must involve an offence against the person and does not include property offences.25 This means that a person whose house is the subject of the offence of arson, for example, is not eligible for assistance under the Act.26

The requirement for ‘injury’, ‘death’ or a ‘significant adverse effect’

  1. 5.33 The Act requires that for a victim to be eligible for assistance, they must have not only experienced an ‘act of violence’ but that act of violence must have directly resulted in their ‘injury’ or ‘death’,27 and/or, for primary victims, a ‘significant adverse effect’.28

Establishing injury or death

  1. 5.34 The requirement to establish injury or death varies depending on the category of victim:
  • For primary victims, it needs to be established that the act of violence directly resulted in their death or injury.29
  • Secondary victims applying under section 9(1) need to establish that they were injured as a direct result of witnessing the act of violence. Secondary victims applying under section 9(2) as a parent of a primary victim need to establish two injuries:
  • - first, that the act of violence directly resulted in the death or injury of their child as the primary victim, and
  • - second, that they personally suffered injury as a direct result of becoming aware of the act of violence.
  • Related victims need to establish that the act of violence directly caused the death of their close relation as the primary victim.
  1. 5.35 ‘Injury’ is defined in the Act as:
  • actual physical bodily harm
  • mental illness or disorder or exacerbation of a mental illness or disorder, whether or not flowing from nervous shock
  • pregnancy
  • any combination of these matters arising from an act of violence.30
  1. 5.36 The meaning of ‘actual physical bodily harm’ was considered in RBA v Victims of Crime Assistance Tribunal.31 In that case, VCAT held that while ‘actual physical bodily harm’ does not include transitory pain that lasts for a matter of minutes, it can include pain that lasts for a period of days.32
  2. 5.37 The term ‘mental illness or disorder’ is also not defined in the Act. It appears to be generally understood by VCAT to mean any mental injury that constitutes a recognised psychiatric or psychological disorder.33
  3. 5.38 However, in some cases, the presence of psychiatric symptoms without a diagnosis of a disorder has been enough to qualify as a ‘mental injury or disorder’ under the Act. For example, in AVA v Victims of Crime Assistance Tribunal,34 which concerned an application by a child in relation to her mother’s partner having taken indecent photos of her while she was asleep, VOCAT had found that the applicant’s ‘shyness and anxiety problems’ did not constitute a mental injury.35 On appeal, however, VCAT found that the presence of anxiety symptoms without an anxiety disorder still amounted to a mental injury for the purposes of the Act.36
  4. 5.39 The Act also deems a person to be suffering an injury if VOCAT is satisfied on medical or psychological evidence that treatment or counselling is required as a result of ‘trauma’ associated with an act of violence.37 VCAT has interpreted the word ‘trauma’ to ‘include not only physical injury but also psychological injury of a “startling experience which has a lasting effect on mental life; a shock”’.38
  5. 5.40 The Act expressly provides that ‘injury’ does not include injury arising from property loss or damage.39

Significant adverse effect

  1. 5.41 Under the Act, financial assistance can also be claimed if a victim has experienced or suffered a ‘significant adverse effect’.40
  2. 5.42 There are two circumstances in which this can occur:
  • First, a primary victim may be eligible for ‘special financial assistance’ under section 8A if he or she suffers a ‘significant adverse effect’ as a direct result of an act of violence. The category of ‘special financial assistance’ is discussed in more detail in Chapter 6.
  • Second, a secondary victim may make a claim for assistance in relation to an act of violence that results in a ‘significant adverse effect’ for the primary victim.41 However, in this scenario, the secondary victim still needs to establish that she or he personally suffered an ‘injury’ as a result of witnessing or learning about the act of violence.42
  1. 5.43 A ‘significant adverse effect’ is defined in the Act to include ‘any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence’.43
  2. 5.44 However, as with ‘injury’, the Act provides that a ‘significant adverse effect’ does not include any property loss or damage.44

Connecting ‘injury’ with the ‘act of violence’— the requirement for causation

  1. 5.45 As already noted, the Act requires that an act of violence must ‘directly result’ in the victim’s injury, death or a significant adverse effect.
  2. 5.46 The ‘but for’ test is frequently used by VCAT to establish whether the act of violence directly resulted in the victim’s injury.45 This means that the test is: ‘But for the act of violence, would the victim have experienced the injury?’
  3. 5.47 However, despite using it frequently, VCAT has not held that the ‘but for’ test is the only way to establish causation under the Act. In JM v Victims of Crime Assistance Tribunal,46 the judge stated:

it is unnecessary for me to decide whether satisfaction of the ‘but for’ test is in fact a prerequisite. I add by way of comment that the argument in support of the ‘but for’ test seems compelling.47

  1. 5.48 Accordingly, there is a possibility that a causal connection may be established in another way. What this might be remains unclear.

Standard of proof

  1. 5.49 The standard of proof for establishing both that an act of violence occurred and that it directly resulted in an injury is the ‘balance of probabilities’.48 This is a lower standard of proof than the criminal standard of ‘beyond reasonable doubt’. (See Glossary on page xi.)
  2. 5.50 In determining whether this standard has been met in applications made under the Act, VCAT has frequently applied the test set out in Briginshaw v Briginshaw.49 In that case, Mr Justice Dixon said:

when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.50

  1. 5.51 In other words, under this test, the strength of the evidence required to determine whether or not a fact exists on the ‘balance of probabilities’ may vary depending on the seriousness of an allegation.51
  2. 5.52 In the context of the Act, in which VOCAT must find whether or not a ‘criminal act’ occurred, the allegation will almost always be of a serious nature. This means that VOCAT proceedings might require a higher standard of evidence than some other civil matters.
  3. 5.53 However, in a number of cases, VCAT has held that while the Briginshaw test is relevant, the beneficial intent of the Act should also be taken into account when making a determination of fact with respect to an application for financial assistance.52 In particular, it has pointed to the Act’s stated purpose of recognising the effect of an act of violence on victims of crime and expressing the community’s sympathy and condolence.53

Discussion and options for reform

  1. 5.54 As discussed in the first consultation paper in relation to family violence victims, the eligibility criteria under the Act can be a barrier for some victims to access assistance.54
  2. 5.55 In particular, the narrow definitions in the Act of ‘victim’, ‘act of violence’ and ‘injury’ can make it difficult for victims of crime to claim assistance successfully.
  3. 5.56 This section of the paper considers whether the eligibility criteria under the Act enable the appropriate people to be recognised as victims, as well as whether they are adequate to account for the kinds of harm suffered by victims. It also sets out options for reform.
  4. 5.57 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made so that the appropriate people have access to financial assistance under the Act. Specific questions are set out below.

The victim categories

  1. 5.58 The distinction between primary, secondary and related victims has the effect of creating a hierarchy of victimhood. However, this does not reflect some victims’ experiences of violent crime or account for their needs.
  2. 5.59 In addition, the definitions and categories of ‘primary victim’, ‘secondary victim’ and ‘related victim’ in the Act exclude people, such as some family members and people who assist crime victims in the aftermath of an act of violence. Because of the ripple effects of violent crime, they are also crime victims in the broader sense.
  3. 5.60 Finally, there are some other groups of victims, such as children who hear or are otherwise exposed to violence but who do not witness it, who do not fit into the victim categories of the Act as currently constructed.
  4. 5.61 Accordingly, in considering options for reform this section focuses on the following groups of people, who face difficulties in relation to the victim categories under the Act:
  • children who hear, witness or are otherwise exposed to violence
  • people who assist in the aftermath of an act of violence
  • family members who are injured by becoming aware of the act of violence
  • family members who do not constitute ‘close family members’ under the ‘related victims’ category.
  1. 5.62 This section discusses these issues and sets out options for reform.
  2. 5.63 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the victim categories to ensure that the Act recognises appropriate people as victims. Specific questions for consideration are also set out below.

Children who hear, witness or are otherwise exposed to violence

  1. 5.64 In addition to violence being directly perpetrated against them, children often experience violence by hearing it, witnessing it or being exposed to it. As the first consultation paper discussed, this is especially so for child victims of family violence.55 However, children can also hear, witness or be exposed to violence in other contexts.56
  2. 5.65 Research demonstrates that hearing, witnessing or being exposed to violence can have far-reaching developmental and psychological consequences for children.57 These adverse effects can sometimes be similar to those experienced by children against whom violence is directly perpetrated.
  3. 5.66 The impact of children’s exposure to violence is recognised in the context of family violence in both Victorian and Commonwealth legislation. For example, causing a child to hear, witness or be exposed to violence constitutes ‘family violence’ in the Family Violence Protection Act 2008 (Vic)58 and ‘abuse in relation to a child’ in the Family Law Act 1975 (Cth).59
  4. 5.67 However, under the Victims of Crime Assistance Act 1996 (Vic) (the Act), children who witness violence are classified as ‘secondary victims’, rather than ‘primary victims’. This is illustrated by NF v Victims of Crime Assistance Tribunal,60 in which the applicant, who witnessed his father beat his step-father to death when he was eight years old, was only able to apply as a secondary or related victim. This was despite the severe psychological impact the violence had on him.61
  5. 5.68 The classification of child victims who hear, witness or are exposed to violence as ‘secondary victims’ can therefore fail to acknowledge their lived experience and the devastating effect that such violence may have on them. As the Royal Commission into Family Violence stated, ‘children and young people experiencing family violence should be recognised as victims in their own right’.62
  6. 5.69 In addition, categorising such child victims as secondary victims affects the categories and quantum of award for which they are eligible. For example, it prevents them from accessing special financial assistance, which is only available to primary victims.63 This is problematic as special financial assistance, which is a lump-sum payment for which the applicant is not required to establish that she or he has suffered an injury, can be beneficial for child victims due to difficulties in anticipating their future level of injury and suffering.64 The categories and quantum of awards under the Act are discussed in more detail in Chapter 6.
  7. 5.70 Moreover, children who are exposed to violence, but do not directly witness it or are not present at the time of the act of violence, may not fall into any victim category under the Act. In the context of family violence, children can be exposed to violence by overhearing threats, being present when police officers attend an incident, providing comfort to the victim or by cleaning up in the aftermath of the violence.65However, as a child will only be considered a secondary victim if she or he was present at the time of the act of violence and witnessed it,66 the child victims in those examples may be ineligible for financial assistance under the Act.
  8. 5.71 An option to recognise children who witness, hear or are exposed to violence as ‘primary victims’, is to amend the definition of ‘primary victim’ in section 7. This could be done, for example, by inserting into section 7 a new subsection (3), which states that ‘a person is also a primary victim of an act of violence if he or she is injured or dies as a

    direct result of witnessing, hearing or being exposed to violence and he or she was under the age of 18 years at the time of the commission of that act’.
  9. 5.72 Another way of including children who witness, hear or are exposed to violence as ‘primary victims’ in the Act is to expand the definition of an ‘act of violence’. This option could be either implemented generally to include exposure to all types of violence, or it could be done only in relation to exposure to certain forms of violence, such as family violence. This specific option for reform is considered further below in the context of the child victims and the definition of an ‘act of violence’ in the Act at [5.142]. However, it should be noted here that if the definition of an ‘act of violence’ were amended to include causing a child to hear, witness or be exposed to an act of violence, then children who experience violence in this way would also be considered ‘primary victims’ for the purposes of the Act.

People who render assistance to victims after an act of violence has occurred

  1. 5.73 Another group that may not be captured by the existing victim categories in the Act are people who provide care and assistance to the victim after an act of violence has occurred, such as family members and paramedics.
  2. 5.74 As mentioned above, people who are injured or die as a direct result of trying to aid or rescue someone whom they believe on reasonable grounds to be a victim of an act of violence constitute ‘primary victims’ under section 7(2)(c) of the Act.
  3. 5.75 However, section 7(2)(c) of the Act has been interpreted narrowly by VCAT to require proactive and substantial aid at the time of the act of violence or immediately thereafter.67 As the case law demonstrates, this interpretation can exclude those who provide other forms of care and assistance in the aftermath of an act of violence, including family members, paramedics and other medical professionals.
  4. 5.76 In Smith v Victims of Crime Assistance Tribunal,68 the applicant made a claim for assistance as a primary victim pursuant to section 7(2)(c) of the Act on the basis that she had inadvertently interrupted an assault on her mother by her father. After entering her mother’s room, the applicant assisted her mother by staying with her, collecting a flannel and bowl to clean her wounds and putting her brother to bed.69 This incident resulted in the applicant suffering from post-traumatic stress disorder.70
  5. 5.77 In that case, VCAT held that the applicant was not a primary victim, as the assistance she had rendered did not constitute ‘aid’ as contemplated by the Act. This is because it was ‘no more than offering first aid … after the event’.71 VCAT found that to view such assistance as aid within the meaning of section 7(2)(c) would ‘mean any ambulance officer or paramedic giving assistance … would be entitled as a primary victim’,72 which was ‘clearly not an intended consequence when the legislative history was considered’.73 However, VCAT did find that the applicant was a ‘secondary victim’, as she had been injured by witnessing the act of violence.74
  6. 5.78 A similar issue arose in Will v Victims of Crime Assistance Tribunal.75 In that case, the applicant was the mother of an adult primary victim who had been stabbed in the chest, resulting in major heart and lung injuries.76 Although the applicant had not been present at the time of the stabbing, she attended on her son as soon as she was informed of the act of violence and stayed by his bedside for many hours a day for several months while he recovered in hospital.77 The applicant suffered from depression and anxiety as a result.78 VCAT held that she was not a primary victim under section 7(2)(c). It stated:

Section 7[2](c) is designed to cover a person who comes to the aid of someone being attacked or if after the attack they immediately step in and do things to assist the victim … it does not refer to an act where a mother is sitting beside the bedside of her son.79

  1. 5.79 In addition, VCAT also rejected the applicant’s claim as a ‘secondary victim’ on the grounds that she was not present at the time of the act of violence.80 This finding is discussed in more detail below at [5.88].
  2. 5.80 The distinction between aid rendered to a victim at the time of an act of violence and assistance provided afterwards is potentially problematic when the purpose of section 7(2)(c) is considered. It appears that this provision is intended to elevate people who are not direct victims of an act of violence to the status of primary victims in order to, at least in part, reward the behaviour of ‘good Samaritans’.81 Dubber describes such provisions in crime victim compensation schemes as ‘perhaps even an effort to encourage citizens to assist one another in times of need’.82 If this is the case, then it may be appropriate for the Act to be amended to also recognise those who provide first aid in the aftermath
    of a violent crime, or those who spend many months attending on a victim following an act of violence.
  3. 5.81 Moreover, the assistance given by family members and medical professionals should not necessarily be viewed as less valuable or less traumatic for them simply because society expects them to render such assistance. As the cases of Smith and Will demonstrate, assisting family members after an act of violence can take a severe toll on a person’s mental health.
  4. 5.82 To address these issues, the definition of ‘primary victim’ in the Act could be amended to recognise people who assist victims in a manner that does not currently amount to ‘aid’. This could be done by inserting the word ‘assist’ into section 7(2)(c) so that it reads ‘trying to aid, rescue or assist someone whom he or she believes on reasonable grounds is a victim of an act of violence’.
  5. 5.83 Additionally or alternatively, the Act could specify that section 7(2)(c) applies to aid and assistance rendered both at the time of the act of violence and afterwards, as long as there remains a causal connection between the aid and assistance and the act of violence. This would ensure that those who assist a victim after an act of violence has occurred would be included as primary victims.

Family members who are injured by becoming aware of the act of violence

  1. 5.84 Another gap in relation to the victim categories in the Act is that most family members of a primary victim do not constitute ‘secondary victims’.
  2. 5.85 As described above, the definition of ‘secondary victim’ is limited to persons who directly witness the act of violence and persons who are the parents or guardians of a primary victim aged under 18.
  3. 5.86 This means that other family members of the primary victim who were not present at the act of violence are excluded from this victim category. This includes the child and spouse of a primary victim, as well as the parent or guardian of a primary victim who is aged over 18 at the time of the act of violence.
  4. 5.87 Although some family members are able to apply as related victims under the Act, they may only do so if the primary victim has died as a direct result of the act of violence.83 Accordingly, the child, spouse or parent of an adult primary victim who has been severely disabled as a direct result of an act of violence but who has not died, for example, may not be eligible for assistance under the Act.
  5. 5.88 This issue is again illustrated by Will v Victims of Crime Assistance Tribunal.84 The applicant was the mother of a 22-year-old primary victim who had been stabbed. Although the mother had suffered a severe mental injury as a result of becoming aware of the act of violence against her son and subsequently providing assistance to him, VCAT rejected her application as a secondary victim because the applicant had not been present at the scene of the act of violence and her son was over the age of 18 at the time.85
  6. 5.89 This narrow definition of ‘secondary victim’ is at odds with extensive research demonstrating that non-perpetrator family members, partners and children of victims of violence can ‘experience the effects of trauma as well, sometimes with similar symptoms to those of primary victims’.86 This is especially so for the family members of victims of sexual assault.87
  7. 5.90 Furthermore, there is potentially an inconsistency in classifying the parents of a ‘primary victim’ who is aged under 18 years as ‘secondary victims’, but not the underage children of a ‘primary victim’.
  8. 5.91 One option for reform is to extend the definition of a ‘secondary victim’ to include more family members than just the parents or guardians of a primary victim who is under 18.
  9. 5.92 This could be done by expanding the ‘secondary victim’ category to include the children of a primary victim. This is the approach of the Northern Territory scheme, which includes the child, step-child or child under guardianship of the primary victim, in addition to the parents, step-parents and guardian of the primary victim, in its definition of ‘secondary victim’.88 The Northern Territory legislation appears to cover both the underage and the adult children of a primary victim. The Victorian Act could adopt this approach or it could specify that only a child who is under 18 years of age whose parent is a primary victim, constitutes a ‘secondary victim’.
  10. 5.93 Alternatively, the Victorian Act could go further than the Northern Territory scheme
    and include other close family members who are injured by becoming aware of the
    act of violence against the primary victim, such as the spouse and/or siblings of the primary victim.

The related victim category and the treatment of family relationships

  1. 5.94 Another aspect of the victim categories under the Act that may be in need of review is the definition of ‘related victim’, which only covers a limited selection of family relationships.
  2. 5.95 A ‘related victim’ is defined as a close family member of, a dependent of, or someone in an intimate personal relationship with the primary victim.89 The Act further defines a ‘close family member’ as a ‘person who had a genuine personal relationship with the victim at the time of the death’ and is the spouse, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, step-brother or step-sister of the victim.90
  3. 5.96 This definition of ‘close family member’ excludes other family members, such as the grandparent, cousin or aunt of a primary victim. Other such family members may be able to make an application under the Act on the basis that they had an ‘intimate personal relationship’ with the deceased primary victim. However, ‘intimate personal relationship’ has been interpreted narrowly by VCAT.
  4. 5.97 For example, in Reid v Victims of Crime Assistance Tribunal,91VCAT found that the aunt of a primary victim who had been murdered did not have an ‘intimate personal relationship’ with the primary victim, and therefore was not a ‘related victim’, because they had had infrequent contact in the years preceding the primary victim’s death.92 VCAT reached this conclusion despite accepting that at times in the primary victim’s life ‘the Applicant [had] carried out the role that would normally have been assumed by the victim’s mother’.93 This decision indicates that it may be difficult for family members of a primary victim to make an application as a ‘related victim’ if they are not included in the definition of ‘close family member’.
  5. 5.98 The limited family relationships covered by the category of ‘related victim’ may also be a particular issue for members of the Aboriginal and Torres Strait Islander community. This is because Aboriginal and Torres Strait Islander cultures place importance on relationships that are excluded by the Act. This includes relationships with grandparents and other elders, as well as with members of the wider kinship group who might not be a ‘sister’ or ‘brother’ in a biological or legal sense, but who are considered as such by the community.94
  6. 5.99 To address these issues, the definition of a ‘related victim’ in the Act could be amended to include more family relationships. For example, Victoria could follow the Western Australian approach of including grandchildren and grandparents.95 This would allow the Act to recognise the close relationship between grandparents and grandchildren in Aboriginal and Torres Strait Islander communities.
  7. 5.100 Additionally or alternatively, the Act could make explicit provision for Aboriginal and Torres Strait Islander kinship relationships in the definition of ‘related victim’. In both the Australian Capital Territory and Queensland, the definition of ‘family member’, for the purposes of being a ‘related victim’, includes a person who is regarded in Aboriginal or Torres Strait Islander tradition or custom as one of the listed types of family member.96 The Victorian Act could be amended to also include a similar provision in its definition of ‘close family member.’

 

The related victim category and the treatment of domestic partnerships

  1. 5.101 Another issue with the ‘related victim’ category is that it does not explicitly include domestic partners. A person’s ‘domestic partner’ describes someone to whom that person is not married, but with whom they are in a relationship involving cohabitation and/or personal or financial commitment and support of a domestic nature.97 The term ‘domestic partner’ is also used here to include people who are in a registered relationship under the Relationships Act 2008 (Vic).98
  2. 5.102 The definition of ‘close family member’ under the Act only refers to the primary victim’s ‘spouse’, defined under the Act to mean ‘a person to whom the person is married’.99 This means that the domestic partner of a primary victim cannot make an application as a ‘close family member’ for the purposes of the ‘related victim’ category.100
  3. 5.103 Domestic partners may apply as a ‘related victim’ on the basis that they had an ‘intimate personal relationship’ with the primary victim. VCAT has provided a number of factors which might point towards the existence of an ‘intimate personal relationship’. These include an ongoing sexual relationship, an ongoing emotional commitment, providing comfort and support, sharing confidences and intimacies and sharing social contacts and attendances at social functions.101 Based on these factors, a domestic partner would probably be able to establish an ‘intimate personal relationship’ with the primary victim.102
  4. 5.104 Nevertheless, this outcome is still subject to the discretion of the decision maker and there is no guarantee that domestic partners, including those in a registered relationship under the Relationships Act, will be recognised as related victims. This seems to be out-of-step with contemporary values, as well as with the way that such relationships are legally construed elsewhere. It is also inconsistent with other parts of the Act that recognise domestic partners. For example, section 10A, which concerns additional assistance available to secondary victims, includes ‘domestic partner’ alongside ‘spouse’ in its definition of ‘family member’.103
  5. 5.105 Moreover, the uncertainty in the Act in relation to the eligibility of domestic partners unfairly discriminates against LGBTIQ partners, who are currently unable to marry under Australian law.
  6. 5.106 The definition of ‘related victim’ could be amended to explicitly include domestic partners. Every other Australian jurisdiction, with the exception of Queensland and Tasmania, expressly provides that a ‘de facto partner’104 or a ‘domestic partner’105 is a related victim in their crime victim compensation legislation.
  7. 5.107 Moreover, the Australian Capital Territory legislation includes ‘domestic partner’ in addition to an ‘intimate partner’,106 which it defines as ‘someone with whom the person has an intimate relationship, whether they are members of the same household or not.’107 This approach is the most inclusive, as it automatically recognises relationships that are akin to marriage, while still leaving open the possibility for persons in other forms of relationship to apply for assistance.
  8. 5.108 The Victorian Act could adopt the Australian Capital Territory approach by including ‘domestic partner’ in the definition of ‘close family member’ and maintaining the category of ‘intimate personal relationship’.

Questions

  1. 1 How do the victim categories in the Act impact on people applying to VOCAT for financial assistance?
  2. 2 Should the victim categories in the Act be amended? If so, what changes should be made to the Act?

 

The definition of an ‘act of violence’

  1. 5.109 The narrow definition of an ‘act of violence’ under the Act means that only people who are victims of crimes against the person are eligible for financial assistance under the Act.
  2. 5.110 This emphasis on physical and sexual offences reflects traditional views regarding the nature of violence. However, as VOCAT noted in its Annual Report 201415, there are ‘changing notions about what may constitute a violent crime and the possible ways in which a person can be victimised’.108
  3. 5.111 For example, the community may now view family violence victims, children, older people and people with disability who are subjected to financial, emotional or psychological abuse as victims of an ‘act of violence’. In some cases, this view may be held in relation to both criminal and non-criminal forms of abuse. Similarly, children who hear, witness or are exposed to violence may now be considered victims of violence in their own right.
  4. 5.112 There is also growing recognition of the harm experienced by victims of non-physical criminal offences. This is especially so in relation to victims of non-contact sexual offences, such as the non-consensual distribution of a naked photograph on the Internet or ‘grooming’, as well as the adverse impact that some property offences can have on a victim’s mental health.
  5. 5.113 An increasing number of applications are being made to VOCAT in relation to less ‘traditional’ forms of abuse.109 Some of these are successful. For example, it has been accepted that cyber-bullying can amount to an ‘act of violence’.110
  6. 5.114 However, many other victims of non-physical forms of violence still face difficulties establishing eligibility under the Act.
  7. 5.115 This section of the paper discusses the barriers to eligibility under the Act for victims of the following forms of abuse:
  • criminal and non-criminal forms of financial abuse and psychological abuse
  • causing a child to hear, witness or be exposed to criminal and non-criminal forms of violence
  • non-contact sexual offences
  • property offences.
  1. 5.116 This section also sets out some options for reform.
  2. 5.117 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the Act to improve access for victims of non-physical forms of violence and abuse. Specific questions are set out below.

Financial and psychological abuse

  1. 5.118 The definition of an ‘act of violence’ under the Act excludes non-contact forms of abuse such as financial and psychological abuse. However, these are the forms of abuse most commonly experienced by some of the most vulnerable members of the community, including victims of family violence, children, the elderly, and people with disability.
  2. 5.119 As detailed in the first consultation paper, the narrow definition of an ‘act of violence’ is a barrier for victims of family violence.111 This is because family violence victims can experience a range of criminal and non-criminal forms of abuse beyond sexual and physical offences. Other common forms of family violence include economic abuse, psychological and emotional abuse, as well as controlling and coercive behaviour.112 However, these do not constitute an ‘act of violence’ for the purposes of the Act.113
  3. 5.120 The narrow definition of an ‘act of violence’ in the Act is also a problem for victims of elder abuse, abuse of people with disability and child abuse.
Elder abuse
  1. 5.121 In May 2017, the Australian Law Reform Commission released its final report, Elder AbuseA National Legal Response.114 This report provides that in addition to physical and sexual abuse, elder abuse can take the form of psychological or emotional abuse, financial abuse and neglect.115
  2. 5.122 One of the most common types of abuse affecting older people is financial abuse.116 For example, between 2012 and 2014, financial abuse accounted for over a third of the calls reporting abuse to the Seniors Rights Victoria helpline.117 The forms of financial abuse that are frequently experienced by older people include being coerced or forced to hand over an asset, someone spending their money without their permission, having their signature forged or being forced to sign something and having someone abuse power of attorney arrangements.118 A substantial amount of this financial abuse would constitute property offences, but it would not amount to an ‘act of violence’ under the Act.
  3. 5.123 The other most common form of abuse reported by elderly people is psychological abuse,119 such as verbal abuse, name-calling, bullying, harassment, pressuring, intimidating, humiliating and ignoring.120 Examples of psychological abuse commonly perpetrated against older people include repeatedly telling them that they have dementia, threatening to put them into a nursing home and preventing them from seeing family and friends.121 However, these forms of behaviour may not amount to a criminal offence or an ‘act of violence’ as currently defined under the Act.
Abuse of people with disability
  1. 5.124 There have also been a number of recent inquiries into violence against and abuse of people with disability, including the Commonwealth Senate’s Inquiry into Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings122 and the Victorian Parliament’s Inquiry into Abuse in Disability Services.123
  2. 5.125 Both these inquiries found that people with disability can experience financial and psychological abuse while in care with disability services.124 The Victorian inquiry was informed that financial abuse faced by people with disability who are clients in care services can include the theft and misuse of their funds and staff eating food purchased for them.125 The Senate inquiry also noted the misuse of the assets and funds of people with disability by public trustees and public guardians.126
  3. 5.126 The Victorian Inquiry into Abuse in Disability Services also found that people with disability who are clients of support services can experience verbal, emotional and psychological abuse. Examples include staff treating a client like a child, staff using disrespectful terms such as ‘downsy’ and ‘nappy wearers’, staff offering then denying treats to clients, and staff sending clients out to find the ‘striped paint’.127
  4. 5.127 Again, while some of the abuse experienced by people with disability would constitute a criminal offence, many of these examples of abuse would not. In addition, none of these examples would be considered an ‘act of violence’ under the Act.
Child abuse
  1. 5.128 The Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, Betrayal of Trust, found that the most common form of child abuse in Australia is emotional abuse.128 This finding is also supported by data from the Australian Institute of Health and Welfare, which shows that 45 per cent of substantiated incidents of child abuse in 2015–16 concerned emotional abuse.129
  2. 5.129 However, as with older people and people with disability, children who experience non-physical abuse are unable to access financial assistance under the Act, as these forms of abuse do not fall into the definition of an ‘act of violence’.
Neglect
  1. 5.130 Neglect is the failure to provide someone with necessities such as food, shelter, medical care or other requisite forms of assistance.130 The Australian Institute of Health and Welfare found that neglect was the second most common type of substantiated child abuse in 2015–16, accounting for 25 per cent of incidents.131 Neglect is also frequently experienced by older people and people with disability.132
  2. 5.131 Neglect leading to serious physical injury or death is likely to constitute an act of violence under the Act. Negligently causing serious injury is an offence under section 24 of the Crimes Actwith a penalty of imprisonment for up to 10 years,133 while negligently causing death can constitute manslaughter. As mentioned above, the definition of a ‘relevant offence’ in the Act includes ‘an offence, punishable by imprisonment, that involves … injury … to a person.’134
  3. 5.132 However, neglect that does not cause serious injury or death but which undermines their health or has a severe psychological impact on a victim and/or adversely affects their sense of dignity,135 is also unlikely to constitute an ‘act of violence’ under the Act.
Including other forms of abuse in the definition of an ‘act of violence’
  1. 5.133 To address these issues, the definition of an ‘act of violence’ under the Act could be expanded to better accommodate victims of family violence, elder abuse, child abuse and abuse of people with disability.
  2. 5.134 The first consultation paper considered the recommendation by the Australian Law Reform Commission and New South Wales Law Reform Commission, in their joint report Family Violence—A National Legal Response, to explicitly include ‘family violence’ in the definition of an ‘act of violence’.136
  3. 5.135 Other specific forms of violence and abuse, such as ‘elder abuse’, ‘child abuse’ and ‘abuse of people with disability’, could also be explicitly included in the definition of an ‘act of violence’ in the Act.
  4. 5.136 Alternatively, only ‘family violence’ could be expressly included in the Act, but it could be defined to include violence perpetrated by people within a residential facility or in a relationship of dependence. This is the way that New South Wales defines ‘domestic violence’ in its victims of crime legislation. The definition of ‘domestic violence’ in the Victims Rights and Support Act 2013 (NSW) includes offences perpetrated by a person who is living in the same household as the other person, a person who is living as a long-term resident in the same residential facility as the other person, and a person who is in a relationship involving their dependence on the ongoing paid or unpaid care of the other person.137
  5. 5.137 If the Victorian Act were amended to include a similar definition of family violence to that of New South Wales in relation to perpetrators, then it would encompass the majority of elder abuse, child abuse and abuse of people with disability, as most of these forms of abuse are perpetrated by family members, carers or other residents in residential facilities.138
  6. 5.138 Explicitly including family violence, elder abuse, child abuse and abuse of people with disability as an act of violence under the Act could give rise to eligibility for psychological and financial abuse. However, the extent to which it does so would depend on the kinds of behaviour it is defined to include. This section considers two different options for reform:
  • using a definition that includes non-criminal behaviour, such as psychological abuse and financial abuse
  • using a definition that includes non-violent offences, such as property offences and breaches of family violence intervention orders.
Extending eligibility to non-criminal forms of abuse
  1. 5.139 The behaviour included in the definition of family violence, elder abuse, child abuse and abuse of people with disability could include non-criminal behaviour, such as psychological abuse and financial abuse.
  2. 5.140 This is the approach that Queensland has adopted in relation to domestic violence in its recent amendment to Victims of Crime Assistance Act 2009 (Qld).139 The Queensland Act now explicitly includes domestic violence within its definition of an act of violence.140 Domestic violence is defined to include physical and sexual abuse, as well as psychological and emotional abuse, economic abuse and behaviour that is threatening, coercive or dominating.141 This means that the Queensland Act now covers both criminal and non-criminal forms of family violence.
  3. 5.141 This approach could be adopted in the Victorian Act by using a similar list of behaviours to those included in section 5 of the Family Violence Protection Act 2008 (Vic) to define ‘family violence’ (or ‘family violence’, ‘elder abuse’, ‘child abuse’ and ‘abuse of people with disability’, respectively). This would cover non-criminal behaviour, such as economic and psychological abuse, threats and coercion.
  4. 5.142 Moreover, using this definition would also enable child victims of family violence to be recognised as primary victims under the Act. As discussed earlier, the definition of ‘family violence’ in the Family Violence Protection Actincludes ‘behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, [family violence]’.142
  5. 5.143 However, concerns have been expressed about expanding the eligibility criteria to allow victims of non-criminal forms of family violence to access the Victorian Act and VOCAT. For example, in their joint submission to the Victorian Royal Commission on Family Violence, the Magistrates’ Court and Children’s Court stated that ‘applications falling under the expanded category may be more complex to determine, and result in unintended consequences’.143
  6. 5.144 The Australian Law Reform Commission and New South Wales Law Reform Commission were also of the view that any definition of family violence in victims’ financial assistance schemes should be limited to criminal acts. The Commissions stated that ‘the adoption of a definition that captures non-criminal conduct would clearly be in direct conflict with the purposes of [victims’ compensation] schemes, as they are presently framed’.144
Extending eligibility to other criminal forms of abuse
  1. 5.145 An alternative option would be to define ‘family violence’, ‘elder abuse’, ‘child abuse’ and ‘abuse of people with disability’ only with reference to criminal offences. However, for these specific categories of abuse, the range of eligible criminal offences could be expanded.
  2. 5.146 This is the approach that the Australian Capital Territory has taken in its inclusion of ‘domestic violence’ in its victims of crime financial assistance legislation. In addition to offences against the person, the Victims of Crime (Financial Assistance) Act 2016 (ACT) provides for a separate category of domestic violence offences which can give rise to eligibility for financial assistance. The domestic violence offences listed include property offences, such as destroying or damaging property, arson and trespass, driving offences and contravention of family violence protection orders.145
  3. 5.147 The Victorian Act could adopt this approach by including in its definition of family violence (or its respective definitions of family violence, elder abuse, child abuse and abuse of people with disability) a list of non-violent criminal acts that are frequently committed in the context of these forms of abuse.
  4. 5.148 This option would likely cover a significant portion of the financial abuse experienced by older people and people with disability, as much of it could be characterised as offences such as theft or fraud. However, it would be less likely to encompass the kinds of psychological abuse to which these groups can be subjected. It may also be less likely to cover non-physical forms of child abuse.

Non-contact sexual offences

  1. 5.149 Victorian criminal law now recognises a range of non-contact sexual offences. Many of these are sexual offences against children, such as engaging in sexual activity in the presence of a child,146 encouraging or facilitating a child to be involved in sexual activity,147 and the offence of ‘grooming’,148 which is communication with a child with the intent of facilitating the child’s engagement or involvement in a sexual offence.149
  2. 5.150 There are also non-contact sexual offences that can be committed against a person of any age, such as observing a person’s genital or anal region,150 taking images of a person’s genital or anal region151 and distributing intimate photographs152 (‘upskirting’ offences).
  3. 5.151 Many of these offences have been introduced in recognition of changes in technology which have enabled new forms of sexual abuse. For example, upskirting offences were introduced to counter image-based abuse facilitated through the development of smaller cameras and cameras on mobile phones, as well as the Internet which has allowed for the easy distribution of images.153 These offences are described as visual and image-based sexual offences in this paper.
  4. 5.152 Grooming offences also recognise that the Internet has facilitated opportunities for child sexual abuse by enabling perpetrators to use the anonymity of online services to win the trust of children.154 The Victorian offence of grooming is the result of a greater understanding of the behavioural patterns surrounding child sexual abuse following the results of the Victorian report, Betrayal of Trust.155
  5. 5.153 However, despite these advances in the criminal law, it appears that victims of non-contact sexual offences may experience difficulties establishing eligibility under the Act due to the narrow definition of an ‘act of violence’. As VOCAT noted in its Annual Report 2015–16:

The area of sexual offending in particular has seen the creation of many new offences in recent years to grapple with advances in technology that have enabled offending to occur in ways not previously contemplated. Yet despite the harms caused to victims of such crimes, many of the new offences would not satisfy the eligibility requirements of the Act.156

Visual and image-based sexual offences
  1. 5.154 Most victims of visual and image-based sexual offences would be ineligible under
    the Act. This is because only sexual offences which are contained in the Crimes Act
    or the common law constitute ‘relevant offences’ for the purposes of the Act.
    However, visual and image-based sexual offences in Victoria, other than such offences against children, are contained in the Summary Offences Act 1966 (Vic).157 The ineligibility under the Act of victims of these offences was acknowledged by VOCAT in its Annual Report 2015–16.158
  2. 5.155 The exclusion of such visual and image-based sexual offences from the Act is problematic, as research demonstrates that victims of image-based abuse can experience high levels of psychological distress.159
Non-contact sexual offences against children
  1. 5.156 In contrast, it appears that most non-contact sexual offences against children would constitute an act of violence under the Act. This is because the Act explicitly provides that offences under subdivisions 8A, 8B, 8C, 8E or 8FA of division 1 of part I of the Crimes Act are relevant offences for the purposes of an act of violence.160 Sexual offences against children, including the offences of grooming and encouraging or facilitating sexual offences against a child, are contained in subdivision 8B of the Crimes Act.
  2. 5.157 Nevertheless, child victims of such non-contact sexual offences may encounter obstacles when making a claim for assistance due to the ‘non-violent’ nature of such offences. For example, AVA v Victims of Crime Assistance Tribunal161 concerned a child whose mother’s partner had taken indecent photographs of her while she was sleeping. VOCAT initially refused the child’s application on the basis that it was not satisfied that an ‘act of violence’ had occurred. This is because she ‘was clothed when photographed; she was asleep at the time; and there was no evidence or inference of any physical contact whatsoever’.162
  3. 5.158 On appeal, VCAT set aside this decision. It found that the photographs amounted to ‘an indecent act with or in the presence of a child under 16’, which does not require any touching or for the child to have been aware of the act.163 VCAT held that this was a ‘relevant offence’ for the purposes of the Act, as it was contained in the requisite subdivision of the Crimes Act.164 In arriving at this decision, VCAT noted that the Act covers ‘many relevant offences, which do not need to be associated with
    actual violence’.165
  4. 5.159 However, VCAT went on to hold that an ‘indecent assault’ had also occurred.166 It found that the perpetrator had in fact touched the victim and that she would have been aware of at least some of the offences that had taken place.167 This second finding went beyond the criminal proceedings against the perpetrator, who had only been convicted of an indecent act with or in the presence of a child under 16 and child pornography.168
    The fact that VCAT also found that a contact-based sexual offence had taken place suggests that some uncertainty may remain in relation to the eligibility under the Act for victims of non-contact sexual offences against children.
  5. 5.160 In addition, in its Annual Report 2015–16, VOCAT stated that the Commonwealth offence of grooming would not constitute an act of violence under the Act.169 This statement, which was written after the Victorian offence of grooming came into force,170 is difficult to reconcile with the wording of the Act. This is because the Victorian offence of grooming is a relevant offence for the purposes of the Act.171 Moreover, behaviour that would give rise to the Commonwealth offence of grooming would also constitute the Victorian offence of grooming, as the latter is broader in scope.172 Nevertheless, VOCAT’s statement demonstrates that there is ongoing uncertainty as to whether non-contact sexual offences constitute an act of violence under the Act.
  6. 5.161 The existence of potential barriers to eligibility under the Act for victims of non-contact sexual offences against children is problematic as it is now well accepted that the betrayal and manipulation of trust involved in offences such as grooming can result in significant trauma.173
  7. 5.162 One option for reform could be to expand the definition of an act of violence to cover all sexual offences, including non-contact sexual offences. This is the approach in the Australian Capital Territory. The Victims of Crime (Financial Assistance) Act 2016 (ACT) applies to all sexual offences contained in Part 3 of the Crimes Act 1900 (ACT).174 This includes offences such as intimate observations or capturing visual data175 and using the Internet to deprave young people.176
  8. 5.163 A similar outcome could be achieved in the Victorian Act by amending the definition of relevant offences to include all sexual offences in the common law, the Summary Offences Act 1966 (Vic) and the Crimes Act, without distinction as to subdivision.

Property offences

  1. 5.164 The definition of an act of violence means that victims of property offences are not eligible for assistance under the Act.
  2. 5.165 In a number of cases, VCAT has held that an act of violence must involve an offence against the person and does not include offences against property.177 For example, in Lowe v Victims of Crime Assistance Tribunal178 and Matthews v Victims of Crime Assistance Tribunal,179 VCAT held that a victim of an arson attack against their home could not be victim of an act of violence unless she or he was under a threat of injury at the time of the fire.
  3. 5.166 However, the appropriateness of excluding property offences under the Act may require review, given the serious impact these crimes can have on victims. As part of its reference on victims of crime in the criminal trial process, the Commission received a submission from Victoria Police noting that victims of property offences tended to suffer the same psychological, emotional and social impacts as victims of crimes against the person.180 This can be seen, for example, in Lowe, in which both applicants were diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood as a result of an arson attack against their home.181
  4. 5.167 Victims of property offences may also have similar needs to victims of violent crimes in relation to safety-related expenses. For example, there was an incident reported in which victims of multiple break-ins by members of a gang were unable to claim financial assistance from VOCAT for a security door because they had not been physically attacked.182 Safety-related expenses are discussed in more detail in Chapter 6.
  5. 5.168 The ineligibility of victims of property offences is a particular issue for victims of family violence. As discussed in the first consultation paper, destruction and damage to property is a common form of family violence that can have far-reaching consequences for the victims.183 Property offences can also affect other vulnerable groups, such as older people and people with disability.184
  6. 5.169 Moreover, the rational basis for providing financial assistance to victims of offences against the person but not to victims of offences against property is questionable. As Kirby writes, ‘it is difficult in logic to justify the distinction between victims of non-violent and violent crimes for the purposes of the State’s compensating such victims’.185
Expanding the definition of an act of violence to include property offences
  1. 5.170 One option for reform is to expand the definition of an act of violence to include property offences.
  2. 5.171 There are different ways that this could be done. As discussed above at [5.145]-[5.148], eligibility could only be extended to property offences in specific circumstances. For example, Victoria could adopt the Australian Capital Territory approach of including property offences only in the context of family violence.186
  3. 5.172 Alternatively, the Act could be amended to extend eligibility to all victims of property offences. This is the approach of the Western Australian criminal injuries compensation scheme, which applies to all types of crimes, misdemeanours and simple offences, including property offences.187 However, it should be noted that eligibility under the Criminal Injuries Compensation Act 2003 (WA) is restricted in other ways. For example, that Act only applies to offences that have not been ‘proved’ (that is, the offender has been convicted) in limited circumstances, such as where there has been an acquittal due to unsoundness of mind, where the accused has been found not mentally fit to stand trial or where no person has been charged.188
  4. 5.173 The Commission has previously considered whether victims of property offences should also be eligible under the Act. As part of its reference on victims of crime in the criminal trial process, the Commission received a submission that the eligibility criteria in the Act should be expanded to include property offences such as property damage, burglary and online fraud.189 Victoria Police submitted that it was open to this option because of the adverse effects that these kinds of offence can have on victims.190
  5. 5.174 However, the Commission decided there was no compelling reason for such an expansion.191 In arriving at this conclusion, the Commission took into account the Magistrates’ Court’s submission that ‘expanding eligibility to victims of non-violent and property crimes would substantially increase the number and complexity of claims and the costs of the scheme’.192
  6. 5.175 In addition, the Commission considered Victoria Police’s submission that the expansion of crimes compensation schemes to cover property offences could act as a disincentive for individuals to obtain property insurance.193 It also referred194 to the New Zealand Law Commission’s consideration of this issue in its 2010 report, Compensating Crime Victims, which found that state-funded compensation for property loss would provide little social benefit and could create fundamental problems, such as those relating to property insurance.195
  7. 5.176 The first consultation paper noted, however, that concerns relating to property insurance may not be applicable in the context of family violence. This is because victims of family violence may already be precluded from making insurance claims for property damage which results from the actions of a family member whose name is also on the insurance policy. Insurance concerns may also be less applicable in relation to the kinds of property offences experienced by victims of elder abuse and abuse of people with disability. As such, an alternative option is to limit the property offences included in the definition of an ‘act of violence’ to those perpetrated by a family member or a carer.

Questions

  1. 3 How does the definition of ‘act of violence’ in the Act impact on people applying to VOCAT for financial assistance?
  2. 4 Should the definition of ‘act of violence’ in the Act be amended to include other offences? If so, what offences should be included?
  3. 5 Should the definition of ‘act of violence’ in the Act be amended to include non-criminal behaviour? If so, what forms of non-criminal behaviour should be included?

 

The definition of ‘injury’

  1. 5.177 For some victims of crime, the narrow definition of ‘injury’ is another barrier to receiving assistance under the Act.
  2. 5.178 In particular, the need to establish mental illness or disorder means that the Act does not recognise other forms of mental harm, such as a sense of violation or a reduced sense of self-worth, that are commonly suffered by victims of sexual assault and family violence. As discussed in this section, the emphasis on mental illness or disorder can also have a counter-therapeutic effect on victims.
  3. 5.179 Moreover, the explicit exclusion of property loss or damage as an ‘injury’ means that awards of financial assistance under the Act may not always meet victims’ needs following an act of violence.
  4. 5.180 This section discusses these barriers to eligibility under the Act and sets out options for reform.
  5. 5.181 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the Act to improve access for victims who experience mental harm or property loss or damage. Specific questions are also set out below.

Mental injury as a ‘mental illness or disorder’

  1. 5.182 The Act defines mental injury as ‘mental illness or disorder’.196 This has been interpreted by VCAT to mean mental injury that constitutes a recognised psychiatric or psychological disorder.197
  2. 5.183 While primary victims need only to establish that they are suffering from a ‘significant adverse effect’ in order to access special financial assistance,198 they must still establish that they suffer from a mental or physical injury in order to be entitled to any of the other categories of award under the Act.
  3. 5.184 However, this definition of mental injury does not capture the kinds of harm that victims of certain crimes tend to suffer.199 As the first consultation paper noted, victims of family violence are one group that commonly experience forms of harm that do not necessarily constitute a recognised mental illness or disorder.200 Forster writes that the harms typically suffered by family violence victims are ‘cultural, vocational, psychological, behavioural, interpersonal, and social’.201
  4. 5.185 This is also the case for victims of sexual assault.202 Victims of sexual assault may experience significant mental harm, such as a sense of violation or a reduced sense of self-worth, but not a recognised illness or disorder. In addition, in the case of Aboriginal women, the harm that flows from sexual assault may also be ‘specifically cultural and linked to community perceptions of the harm and the cultural expectations embedded in Aboriginal society’.203 The same may also be true of other cultural groups.
  5. 5.186 The situation is even more complex for child victims of sexual assault. Sexual abuse in childhood can often have significant developmental consequences which may not be classified as a physical or psychiatric illness or disorder.204 Moreover, it can often take many years for the harm suffered by child sexual abuse victims to manifest itself.205 It can also be difficult to anticipate the level of injury that they will experience.206 This can make it challenging for some child victims to establish injury at the time of their application to VOCAT.
  6. 5.187 The emphasis on mental disorder and illness in the Act can also have a counter-therapeutic effect on victims of crime.207 As Cook, David and Grant write, victims who are able to frame the harm that they have suffered as a mental illness or disorder, ‘might begin to see their natural reactions as pathological disorders, a perspective that might have long-term consequences for their self-esteem and ability to participate in society’.208 For those victims who are unable to establish a mental illness or disorder, ‘they might be left with the feeling that their injuries are not real or serious, despite the ongoing impact that these injuries have on their lives’.209
  7. 5.188 This is a particular concern for victims of sexual assault, as Forster explains:

That process of pathologising the harms of sexual abuse may require victims to portray themselves as vulnerable, helpless, ‘sick’ and shamed, which may not assist them in recovery. It also contributes to a historical connection between women and mental illness that a significant body of theorists argue reinforces a societal understanding of women as irrational, hysterical and helpless.210

  1. 5.189 Clark writes that focusing on harm rather than the criminal act ‘can be an unhelpful centre point for compensation’.211 This is because it can ‘weigh victims against each other’212 and reinforce ‘hierarchies of suffering’.213
  2. 5.190 Some victims may also be deterred from applying for assistance if it means that they must undergo a formal psychiatric assessment to establish that they are suffering from a mental disorder or illness.214 Psychiatric assessments, which are distinct from psychological counselling, are a non-therapeutic tool used to assess the level of mental injury.215 If administered poorly, there is a risk that psychiatric assessments could re-traumatise victims.216
  3. 5.191 In the first consultation paper, the Commission noted that the need to provide medical and psychological reports can lead to victims being directed away from frontline and community-based services.217 Stakeholders noted that victims of family violence are sometimes redirected from family violence counselling and social work services, which may be of the greatest benefit to their recovery, to medical professionals so they can obtain medical reports that support their VOCAT application. This is a particular concern for victims living in rural or remote areas, where there are few practising psychiatrists or psychologists, as it can result in them needing to seek support outside their community.
  4. 5.192 There are also significant costs associated with proving injury. Obtaining reports from medical professionals and psychiatrists is costly for victims who make an application to VOCAT, and such expenses are a burden on VOCAT, which reimburses successful applicants. These costs may be considered to be ‘wasting resources’,218 given the extensive literature that documents the kinds of harm that victims commonly experience, especially in relation to certain crimes, such as sexual assault.219
  5. 5.193 In addition, in preliminary consultations, the Commission was told that victims of family violence are sometimes unwilling to disclose a diagnosis of a psychological illness or disorder to VOCAT if they are also involved in parallel family law proceedings. This is because evidence of mental injury provided to VOCAT may be used as evidence in family law matters, where it can adversely impact the victim’s prospects of a parenting order in their favour.
Expanding the definition of injury
  1. 5.194 To address these issues, the definition of injury in the Act could be expanded in order to make the scheme more accessible to victims of crime who do not suffer from a recognised mental disorder or illness.
  2. 5.195 Meyering writes that the definition of mental injury in the Victorian Act is one of the most restrictive in Australia.220 She contrasts it with other jurisdictions, which refer to ‘psychological or psychiatric harm’,221 ‘mental and nervous shock’222 and ‘impairment of … mental health’.223 Any one of these less restrictive variations could be adopted in Victoria. This would remove some of the barriers faced by victims of crime who do not develop a recognised psychiatric illness. It would also reduce the need to obtain a psychiatric assessment report, thereby allowing victims of crime to pursue counselling or other services that are suited to their needs, rather than medical reports geared only toward their legal application.
  3. 5.196 Alternatively, or additionally, the Act could be amended to include a broader range of injuries for victims of certain forms of violence. The schemes in both the Australian Capital Territory and Queensland recognise an expanded category of injuries for victims of sexual offences and family violence, including a sense of violation, a reduced sense of self-worth, increased fear or feelings of insecurity, and reduced capacity to participate in sexual activity.224 The Victorian Act could also recognise such injuries in relation to victims of sexual offences, family violence and child abuse.
Removing the requirement for proof of injury
  1. 5.197 Another option for reform is to remove the requirement for proof of injury for victims of certain crimes, such as sexual offences and family violence. This is the approach of the Northern Territory victims’ financial assistance scheme in relation to sexual offences. The Victims of Crime Assistance Regulations 2007 (NT) sets out a range of sexual offences that constitute ‘compensable violent acts’ for which a lump sum can be awarded to a victim without evidence of injury.225
  2. 5.198 Forster also advocates for this approach in relation to family violence as it would have ‘the potential to provide victims of family violence with an easier and less traumatic means of accessing compensation’.226
  3. 5.199 Removing the requirement to prove injury in certain circumstances would also reduce some of the problems associated with the requirement that the injury is a direct result of the act of violence. The challenges associated with the need for a causal connection between injury and act of violence are discussed at [5.207]–[5.212] below.

 

The exclusion of property loss or damage

  1. 5.200 As noted above, property loss or damage does not constitute injury or a significant adverse effect under the Act.
  2. 5.201 This means that even victims of offences against the person are ineligible for assistance under the Act if the only injury or significant adverse effect that they suffer is property-related.
  3. 5.202 As discussed in the first consultation paper, the exclusion of injury arising from property loss or damage in the Act is a particular concern for victims of family violence.227 This is because in some situations of family violence, the only tangible harm which the victim may be able to demonstrate is property damage.228 Moreover, the economic harm that can flow from property damage or destruction can affect the independence and security of victims of family violence, as well as contribute to their long-term financial disadvantage.229
  4. 5.203 In order to better accommodate victims of crime who suffer property-based injury, the Act could be amended to remove the explicit exclusion of injury arising from property loss or damage.
  5. 5.204 Alternatively, there could be an exception to this exclusion only in relation to certain forms of violence, such as family violence.
  6. 5.205 However, there may be significant costs associated with extending the definition of ‘injury’ to include property loss and damage. As Kirby writes:

the practical problems of providing a total form of compensation [that includes victims who suffer property loss or damage] are enormous and would appear to be so expensive as almost certainly to make them unacceptable and to delay unfairly the implementation of a scheme for victims of crimes causing death or bodily injury.230

  1. 5.206 These costs may weigh against extending the definition of injury to include property-related loss.

Questions

  1. 6 How does the definition of ‘injury’ in the Act impact on people applying to VOCAT for financial assistance?
  2. 7 Should the definition of ‘injury’ in the Act be amended to include other forms of harm? If so, what forms of harm should be included?
  3. 8 Should the requirement for injury in the Act be removed for victims of certain crimes? If so, for which categories of victim should the requirement be removed?

 

 

The causation requirement

  1. 5.207 This section of the paper discusses some of the challenges faced by victims of crime in establishing causation under the Act and sets out a number of options for reform.
  2. 5.208 Some victims of crime can encounter difficulties in establishing that their injury was a ‘direct result’ of the act of violence. This is particularly so if the injury for which the victim is making a claim is a mental disorder or illness and there are other contributing factors.
  3. 5.209 For example, the applicant in NF v Victims of Crime Assistance Tribunal231 sought assistance on the basis that he had witnessed his father beat his step-father to death. VOCAT initially refused his claim for counselling costs on the grounds that the incident in question was only one of many causes of the difficulties that he faced. The other issues to which VOCAT pointed included a sexual assault, a period in residential care, and a period in youth detention. However, this decision was later set aside by VCAT, which found that the applicant’s ‘need for counselling [was] directly attributable to the act of violence, even if other layers of trauma in his life may have heightened the need’.232
  4. 5.210 Establishing causation for mental injury can be especially challenging for victims of child sexual abuse. As Forster and Parkinson write:

It is extremely difficult to separate out those effects that are predicated directly on the sexual abuse and all the other factors such as poor family functioning, domestic violence, physical abuse, the quality of peer and family relationships … all of which may impact upon the long term outcome for the child.233

  1. 5.211 This issue is illustrated by CS v Victims of Crime Assistance Tribunal.234 In that case, both VOCAT and VCAT rejected the victim’s application partly because there were a number of other very serious matters in her life that had contributed to her mental injury but which were unrelated to the sexual assaults that had been perpetrated against her when she was aged four to 14. VCAT stated that ‘the State should not be required to pay unlimited counselling for treatment of issues that may be unrelated to any injury caused by the act of violence’.235
  2. 5.212 The causation requirement can also produce difficulties for victims of neglect. This is especially so for victims who are elderly or have disabilities, as it may sometimes be difficult to separate their own naturally occurring health problems from the omissions of their carers.236
  3. 5.213 As mentioned above at [5.199], one way of avoiding the difficulties associated with proving a causal connection between the act of violence and the injury is to remove the requirement of injury for certain acts of violence, such as sexual offences. This is the approach used in the Northern Territory.237
  4. 5.214 There are other ways to limit some of the problems associated with establishing causation. These include removing the word ‘direct’ from the causation test, creating a rebuttable presumption of a causal link in relation to certain offences or deeming causation in certain situations. These options are explored below.
 
Removing the word ‘direct’ from the causation test
  1. 5.215 One option is to remove the word ‘direct’ from the definitions of primary victim, secondary victim and related victim so that injury or death need only be ‘a result of’ the act of violence rather than a ‘direct result’. This would represent a return to Victoria’s former approach, as neither of the Act’s predecessors, both the Criminal Injuries Compensation Act 1972 (Vic) and the Criminal Injuries Compensation Act 1983 (Vic), contained the word ‘direct’.238
  2. 5.216 The use of the words ‘as a result of’ in the Criminal Injuries Compensation Act led the High Court to decide in Fagan v Crimes Compensation Tribunal239 that Victoria’s scheme only required a causal connection between the criminal act and the injury, and that this could be satisfied even if there were other contributing factors.240 As Justices Mason and Wilson stated:

The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause.241

  1. 5.217 In Savage v Crimes Compensation Tribunal,242 the Victorian Court of Appeal also held that this test applied to the Criminal Injuries Compensation Act.243
  2. 5.218 As VCAT has provided, insertion of the word ‘direct’ in the Act has ‘raised the bar’ in relation to the test of causation since the cases of Fagan and Savage were decided. It noted that the test for causation in these cases was an easier standard to satisfy than the ‘but for’ test.244
  3. 5.219 Accordingly, if the Act were amended to revert to the previous formulation of causation through the removal of the word ‘direct’, it would overcome some of the difficulties experienced by victims of crime in establishing a causal connection between the act of violence and their injury.
Presuming or deeming a causal connection
  1. 5.220 Another option is to amend the Act to include a rebuttable presumption of a causal connection in relation to injuries flowing from certain acts of violence. For example, this could be put in place for acts of violence for which it is usually much harder to establish causation, such as neglect of a child, an older person or a person with disability, or child sexual abuse.
  2. 5.221 Alternatively, the Act could be amended to deem that a causal connection exists where it can be proven that a certain act of violence occurred and that the victim suffered injury. This is the approach taken in the criminal law of Western Australia and Queensland in relation to the failure to provide ‘the necessaries of life’. In both jurisdictions, if it can be established that the accused had a duty to provide the necessaries of life to another person and that they failed to fulfil that duty, they will be ‘held to have caused any consequences which result to the life or health of the other person’.245 A deeming provision of a similar nature could be inserted into the Act for criminal neglect and/or in relation to child sexual abuse.

 

Question

  1. 9 How does the requirement for victims to establish that their injury was the ‘direct result’ of the act of violence impact on people applying to VOCAT for assistance? Should this causation requirement be amended? If so, what changes should be made to the causation requirement?

 

 

Footnotes

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