6 Assistance available under the Victims of Crime Assistance Act

 

Introduction

  1. 6.1 This chapter outlines the awards of financial assistance available to victims of crime under the Victims of Crime Assistance Act 1996 (Vic) (the Act). In particular, this chapter considers:
  • the quantum (amount) of awards, including the total financial assistance available to an applicant, as well as the total financial assistance available to groups of applicants applying as related victims
  • the categories of award, including awards for expenses incurred, additional awards of assistance in exceptional circumstances and awards of special financial assistance
  • the reduction of awards for ‘related criminal acts’.
  1. 6.2 This chapter relates to matters four, five and six of the supplementary terms of reference, which ask the Victorian Law Reform Commission (the Commission) to consider whether:
  • the categories of assistance and structure of awards in the Act 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
  • the basis of the formula used to quantify special financial assistance in the Act is the most appropriate way to calculate the amount payable by the state for harm arising from crime
  • it is appropriate and fair to award assistance to aid recovery in exceptional circumstances and whether there are other ways to promote the recovery of victims from the effects of crime.
  1. 6.3 This chapter explores the above matters raised by the terms of reference. This chapter then outlines options for reform to the category and quantum of award provisions so as to better account for the harm suffered by victims of crime and to better assist recovery. Finally, this chapter sets out questions for consideration.

What assistance is available?

  1. 6.4 The categories and quantum of awards available to victims of crime depend on the victim category under which an applicant applies for assistance under the Act.
  2. 6.5 This section outlines the categories and quantum of awards available to each class of victim under sections 8, 10, 13 and 15 of the Act.
  3. 6.6 Special financial assistance for primary victims is dealt with under section 8A of the Act and the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) (the Regulations).
  4. 6.7 Section 56 of the Act provides for interim awards for urgent assistance.
  5. 6.8 Section 4 of the Act sets out how the Victims of Crime Assistance Tribunal (VOCAT) should treat ‘related criminal acts’.

Quantum of financial assistance available

  1. 6.9 The Act limits the amount of assistance that can be awarded to a particular victim in respect of an act of violence.
  2. 6.10 The maximum award for primary victims is $60,000 plus $10,000 of special financial assistance.1
  3. 6.11 The maximum award for any secondary victim is $50,000.2
  4. 6.12 The maximum award for any one related victim is $50,000.3 However, the total maximum cumulative amount that may be awarded to all the related victims of any one primary victim, that is the ‘pool’ of related victims, is $100,000.4
  5. 6.13 The maximum cumulative amount that may be awarded to a pool of related victims will also be reduced by an award made for funeral expenses, even if it was made to someone who was not a related victim.5
  6. 6.14 In exceptional circumstances, however, VOCAT may award assistance to a related victim in excess of the maximum cumulative amount.6

Current categories of award

  1. 6.15 Depending on whether a person applies to VOCAT as a primary, secondary or related victim, there are different categories of award available.

Awards available to primary victims

  1. 6.16 There are three main categories of award that primary victims can access:
  • an award for expenses actually incurred or reasonably likely to be incurred for:
  • - reasonable counselling services
  • - medical expenses as a direct result of the act of violence
  • - loss of earnings of up to $20,000 as a direct result of the act of violence
  • - loss or damage to clothing worn at the time of the act of violence
  • - safety-related expenses as a direct result of the act of violence7
  • in exceptional circumstances, an award for other expenses actually incurred or reasonably likely to be incurred to assist in the primary victim’s recovery8 (recovery expenses)
  • special financial assistance9 (discussed further below).
  1. 6.17 The Act defines ‘medical expenses’ to include ‘dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses’.10
  2. 6.18 Other than claims made for safety-related expenses and clothing worn at the time of the act of violence, the Act explicitly excludes primary victims from applying for expenses incurred through loss or damage to property.11

Awards available to secondary victims

  1. 6.19 Secondary victims are able to make a claim for assistance for:
  • expenses actually incurred or reasonably likely to be incurred for:
  • - reasonable counselling services
  • - medical expenses incurred as a direct result of witnessing, or becoming aware of, the act of violence12
  • in exceptional circumstances, and within the limit of the total sum available to secondary victims, an amount of up to $20,000 for loss of earnings that is suffered or reasonably likely to be suffered as a direct result of the act of violence13
  • in exceptional circumstances, and within the limit of the total sum available to secondary victims, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the secondary victim’s recovery where:
  • - the secondary victim was under 18 at the time of the act of violence, the primary victim was their family member,14 and the secondary victim was injured by witnessing the act of violence15
  • - the secondary victim was a parent or guardian of the primary victim, the primary victim was under 18 at the time of the event, and the secondary victim was injured by subsequently becoming aware of the act of violence.16

Awards available to related victims and the pool of related victims

  1. 6.20 Related victims can make a claim for assistance for the following:
  • expenses actually incurred or reasonably likely to be incurred for:
  • - reasonable counselling services
  • - medical expenses or funeral expenses incurred as a direct result of the death of the primary victim
  • - distress experienced or reasonably likely to be experienced as a direct result of the death of the primary victim
  • - loss of money that the related victim, but for the death of the primary victim, would have been reasonably likely to receive from the primary victim during a period of up to two years after that death
  • - other expenses incurred as a direct result of the primary victim’s death17
  • in exceptional circumstances, and within the limit of the total sum available to related victims, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the related victim’s recovery from the death of the primary victim.18
  1. 6.21 ‘Distress’ is not defined in the Act. However, the Victorian Civil and Administrative Tribunal (VCAT) has considered that ‘distress’ should be given its ordinary dictionary meaning as ‘great pain, anxiety, or sorrow; acute suffering; affliction; trouble’.19 VCAT has also held that a related victim does not have to show that an injury in the medical sense has occurred to make a claim for distress.20 In addition, it does not need to be established that an award for distress promotes the recovery of the related victim.21
  2. 6.22 The Act explicitly excludes applications for expenses incurred by related victims through loss or damage to property.22
  3. 6.23 As already noted, the Act limits the total financial assistance available to all the related victims of any one primary victim. The effect of this cap is discussed further later in this section.
  4. 6.24 A person who incurs the funeral expenses of a primary victim, but who is not a related victim, is also able to make a claim for assistance for those expenses.23 However, as noted above, the maximum cumulative amount that may be awarded to a pool of related victims will be reduced by any award made in respect of funeral expenses.24

Requirement for expenses to be ‘reasonable’

  1. 6.25 As noted above, the Act expressly requires most expenses for which an application for financial assistance is made, to be ‘reasonable’25 or to be ‘reasonably incurred’.26
  2. 6.26 The term ‘reasonable’ has been judicially considered. In CS v Victims of Crime Assistance Tribunal,27 VCAT considered the meaning of ‘reasonable’ in the context of ‘reasonable counselling services’ under section 8(2)(a) of the Act. In that case VCAT referred to the definition of ‘reasonable’ in the Oxford English Dictionary: ‘not greatly less or more than might be expected; inexpensive, not extortionate’. VCAT also drew assistance from the definition of ‘reasonable’ in the Transport Accident Act 1986 (Vic), which requires the decision maker to have regard to the service actually rendered and the necessity of that service in the circumstances.28
  3. 6.27 In that case, VCAT concluded that the applicant’s claim for counselling, which had been received on a weekly to fortnightly basis for five years, was unreasonable, due to there being little evidence of improvement, there having been no attempt to reduce the counselling sessions, and there being other factors in the applicant’s life that VCAT considered had contributed to her need for counselling.29

Awards for ‘recovery expenses’ in ‘exceptional circumstances’

  1. 6.28 As already noted, the Act provides that in exceptional circumstances, a primary victim may also be awarded an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist in her or his recovery from the act of violence.30
  2. 6.29 Similarly, some secondary victims are eligible in exceptional circumstances for awards to assist recovery.31
  3. 6.30 Related victims are also eligible in exceptional circumstances for an award to assist their recovery from the death of the primary victim of the act of violence.32
  4. 6.31 VCAT has interpreted ‘exceptional circumstances’ to mean ‘unusual, special, out of the ordinary’.33 It has stated that whether or not such circumstances exist involves a consideration of ‘all of the circumstances, including the injury and the nature of the offending’.34
  5. 6.32 In order to make a claim for ‘recovery expenses’, the applicant must demonstrate that the expense will ‘go to the heart’ of assisting them in their recovery from a crime.35 The therapeutic value of the particular expense sought is considered,36 as well as whether there is a sufficient connection between the expense and recovery from the particular incident.37
  6. 6.33 Assistance can be awarded under the ‘recovery expenses’ category for a diverse range of items and services. For example, awards have been made for a gym membership,38 Taekwondo classes,39 computer training,40 equipment for a beauty therapy course,41 a laptop42 and the removal of tattoos to assist the applicant to obtain employment.43

Special financial assistance

  1. 6.34 In addition to assistance available for specific expenses incurred or likely to be incurred, the Act provides that primary victims can also be awarded special financial assistance.44
  2. 6.35 Special financial assistance is a lump-sum award that is made as ‘a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.45
  3. 6.36 Special financial assistance is classified into four categories; A, B, C and D. These categories are based on the severity of the act of violence, with Category A covering the most serious offences and Category D covering the least serious.
  4. 6.37 The offences that fall into each category are set out in the schedule to the Regulations. They are as follows:
  • Category A: offences involving sexual penetration and attempted murder
  • Category B: offences involving attempted sexual penetration, an indecent act, an indecent assault, armed robbery, aggravated burglary and deprivation of liberty for the purpose of sexual penetration or demanding a ransom
  • Category C: offences involving an attempt to commit any of the offences in Category B, a death threat, conduct endangering life, the infliction of serious injury and robbery
  • Category D: offences involving an attempt to commit any of the offences in Category C, a threat of injury, assault, attempted assault, deprivation of liberty (other than for sexual penetration or ransom) and any other act of violence.46
  1. 6.38 The minimum and maximum amounts for each category are prescribed in section 8A(5) of the Act. They appear below in Table 2.

Table 2: Minimum and maximum payments for each category of special financial assistance

 

Minimum amount

Maximum amount

Category A

$4667

$10,000

Category B

$1300

$3250

Category C

$650

$1300

Category D

$130

$650

 

 

  1. 6.39 The Regulations provide for three circumstances in which a higher maximum award of special financial assistance is available for acts of violence that would ordinarily fall within a category with a lower maximum award. In practice, this is often described as an ‘uplift’.
Category A maximum amount available for category B, C or D acts of violence
  1. 6.40 Regulation 7 provides that the Category A maximum amount is available for acts of violence in Categories B, C and D where:
  • the victim has suffered a very serious physical injury
  • the victim has been infected with a very serious disease or
  • the applicant has been the victim of related criminal acts, being acts of indecent assault or sexual penetration.
  1. 6.41 The Regulations define ‘very serious injury’ as ‘actual physical bodily harm to the body of a permanent or long term duration that involves loss of a body function, disfigurement of a part of the body, total or partial loss of a part of the body, loss of a foetus or loss of fertility’.47
  2. 6.42 ‘Very serious disease’ is defined as ‘a disease that is life threatening in nature and
    includes HIV’.48
Category B maximum amount available for category C or D acts of violence
  1. 6.43 Regulation 8 provides that the Category B maximum is available for acts of violence in Category C or D where the victim was a child, elderly or impaired at the time of the act
    of violence and:
  • the victim has suffered a serious injury
  • the victim has suffered deprivation of liberty or
  • the applicant has been the victim of related criminal acts of violence.
  1. 6.44 ‘Serious injury’ is not defined in the Regulations. However, VCAT has held that ‘serious’ should be given its ordinary dictionary meaning of ‘not slight or negligible’49 or something more than ‘superficial or trifling’.50
  2. 6.45 In Moisidis v Victims of Crime Assistance Tribunal,51 VCAT found that the applicant suffered from a ‘serious injury’ in view of his ongoing need to take Panadeine Forte for neck pain, his difficulties moving his neck and the fact that he continued to experience a buzzing sound in his ears and had severe headaches approximately three to four times a week.52 VCAT also took into account the fact that he had symptoms of post-traumatic stress, which could develop into a post-traumatic stress disorder.53
  3. 6.46 In contrast, in Tucker v Victims of Crime Assistance Tribunal,54 VCAT found that a small bite wound requiring stitches and two courses of antibiotics did not constitute a ‘serious injury’. This was because, despite leaving a residual mark, the injury presented no further complications nor was there any suggestion of a diagnosed mental disorder flowing from the incident.55 VCAT also noted that the injury had not required any inpatient treatment and ‘it was well on its way to healing in a single month’.56
Category C maximum amount for category D acts of violence
  1. 6.47 Regulation 9 provides that the Category C maximum amount is available for Category D acts of violence where:
  • the victim was a child, elderly or impaired at the time of the act of violence or
  • the applicant has been the victim of related criminal acts of violence.

Interim awards for assistance

  1. 6.48 Under section 56 of the Act, applicants can make an application for an interim award of assistance pending the final determination of an application.
  2. 6.49 Interim awards form part of the total financial assistance available to victims up to the statutory limit of $60,000 for primary victims and $50,000 for secondary and related victims.
  3. 6.50 This means that in making a final award, VOCAT must deduct the amount of any interim award from the amount of assistance that it would otherwise have awarded.57 Moreover, if an application is dismissed, VOCAT may order that the amount of any interim award is repaid.58
  4. 6.51 Interim awards can be awarded in any circumstances that VOCAT considers appropriate.59 On its website, VOCAT states that the majority of interim awards are made in respect of counselling expenses and funeral expenses.60 Since 2010, primary victims have also been able to access interim awards for safety-related expenses without needing to demonstrate exceptional circumstances.61
  5. 6.52 In the 2015–16 financial year, VOCAT made 3785 interim awards of financial assistance.62 The average interim award for expenses already incurred in that financial year was $972, while the average interim award for expenses not yet incurred was $1638.63

 

Awards of assistance for ‘related criminal acts’

  1. 6.53 Under the Act, ‘related criminal acts’ can be treated as a single act of violence for the purposes of making an award.64
  2. 6.54 Criminal acts are considered to be related in the following circumstances:65
  • they were committed against the same person and they occurred at approximately the same time
  • they were committed against the same person, they occurred over a period of time and they were committed by the same person or group of people
  • they were committed against the same person and they share some other common feature
  • they each contribute to the injury or death for which an application is made or
  • VOCAT considers that they ought to be treated as related criminal acts.
  1. 6.55 The effect of the related criminal acts provision is to reduce the amount of financial assistance payable to a victim of multiple related crimes.66
  2. 6.56 However, VOCAT has the discretion not to treat related criminal acts as a single act if it considers that in ‘the particular circumstances of [the] acts, they ought not to be treated as related’.67
  3. 6.57 Furthermore, as outlined above, there are circumstances in which the existence of a series of related criminal acts can increase the amount of special financial assistance available. To summarise, these circumstances are as follows:
  • Where the applicant is a victim of a series of related criminal acts falling within Category D, the maximum award available is increased from the Category D maximum amount ($650) to the Category C maximum amount ($1300).68
  • Where the applicant is the victim of a series of related criminal acts and they were a child, elderly or impaired at the time that any of those acts was committed, the maximum award available for acts falling within Category C ($1300) or Category D ($650) is increased to the maximum available in Category B ($3250).69
  • Where the applicant is a victim of a series of related acts of indecent assault or sexual penetration, the maximum award available for acts falling within Category B ($3250), Category C ($1300) or Category D ($650) is increased to that of Category A ($10,000).70

Discussion and options for reform

  1. 6.58 This section considers whether the current categories and quantum of awards available under the Act are appropriate for victims of crime. It also considers a number of technical issues in relation to the categories and quantum of awards.
  2. 6.59 This section then sets out options for reform so as to ensure awards of financial assistance can better account for the harm suffered by victims and better assist victims in their recovery.
  3. 6.60 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the Act on these matters. Specific questions are also set out below.

Prevalence of awards

  1. 6.61 Data from the VOCAT Annual Report 2015–16 shows that applications for some criminal acts tend to be more successful than for others.71 In particular, claims for family violence and violence occurring in the context of property offences are less successful than claims for other offences. (See Table 3).

Table 3: Number of awards of assistance made by the Victims of Crime Assistance Tribunal in 2015–16 by category of offence72

Category of offence

Number of applications lodged

Number of awards of assistance made

Percentage of successful applications

Homicide

490

329

67%

Rape

273

183

67%

Other sexual offences

864

662

76%

Robbery

313

240

76%

Assault

3092

2161

69%

Abduction/kidnap

35

29

82%

Criminal damage by fire

18

7

38%

Burglary

423

249

58%

Harassment

118

72

61%

Family violence

388

113

29%

Other

207

116

56%

 

 

  1. 6.62 These figures demonstrate that in 2015–16 an application for assistance for family violence was less than half as likely to succeed as an application in respect of sexual offences, assault and robbery.
  2. 6.63 Similarly, the figures show that in 2015–16, an application for financial assistance in relation to criminal damage by fire or burglary was less likely to succeed than offences against the person.
  3. 6.64 It is not clear why awards for assistance in relation to family violence and violence relating to property offences are less common than awards for other criminal acts. The difficulties that victims of family violence and victims of property offences encounter in relation to the eligibility test, as discussed in Chapter 5, may contribute to the relatively low number of successful applications for this group of victims.
  4. 6.65 However, as the Commission noted in its Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper(the first consultation paper), the data in relation to applications for family violence may not represent the full picture.73 VOCAT noted in its Annual Report 201516 that it only began recording the number of applications lodged in respect of family violence part way through the 2015–2016 financial year. This means that the numbers reported do not represent a full year of applications.
  5. 6.66 Preliminary consultations also indicated that the way that family violence matters are currently recorded is predominantly based on whether or not the applicant describes the ‘act of violence’ as ‘family violence’. This means that some applications identified as relating to physical or sexual assault may also relate to family violence.

Quantum of awards

  1. 6.67 This section considers whether the quantum of awards available under the Act is adequate to account for the harm experienced by victims following an act of violence.
  2. 6.68 In particular, it discusses the adequacy of:
  • the total assistance available to an individual victim
  • the total assistance available to a pool of related victims.
  1. 6.69 It also sets out options for reform to ensure that the quantum of awards under the Act meets victims’ needs.
  2. 6.70 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 the sufficiency of the quantum of awards of assistance to victims. Specific questions are set out below.

Total financial assistance available

  1. 6.71 As noted at [6.10] above, the maximum amount of financial assistance potentially available under the Act for primary victims is $70,000 ($60,000 plus $10,000 special financial assistance).
  2. 6.72 This sum is consistent with the maximum award available for primary victims in other Australian jurisdictions, which ranges between $30,000 in Tasmania74 and $100,000 in South Australia.75 Victoria’s maximum award is similar to that in Queensland and Western Australia, which both cap the award for primary victims at $75,000.76
  3. 6.73 This analysis suggests that the maximum amount of financial assistance available under the Act may be appropriate, particularly having regard to the need for such schemes to be economically sustainable for the state.
  4. 6.74 However, for those suffering permanent and serious disability as a result of an act of violence, the maximum amount of financial assistance may not be adequate to meet the victim’s needs. In particular, for victims who are unable to return to work because of their injuries, the total maximum of $70,000 may not be able to assist them for very long.77
  5. 6.75 Moreover, it should be noted that the average award granted by VOCAT is much lower than the overall maximum available. In the 2015–16 financial year, the average award amount was $7784, around one tenth of the total maximum award available.78 This figure, however, is more likely to be a consequence of the categories of award available under the Act, rather than the total financial assistance available. Issues relating to the categories of award are discussed further below.

Question

  1. 10 Are the maximum amounts of financial assistance available under the Act adequate to meet the needs of victims? If not, what should the maximum amounts be?

 

Cap on quantum available for related victims

  1. 6.76 As mentioned above at [6.12]–[6.14], the Act limits the maximum amount of financial assistance payable to a pool of related victims to $100,000 for one act of violence.79
  2. 6.77 This means that the process for assessing an application made by a related victim is often complex. For example, the application form requires a related victim applicant to list every other person who they believe may be a related victim, every other person who they believe may allege that he or she is a related victim, and any person who they believe may apply for funeral expenses for the primary victim.80 VOCAT is then required to notify potential related victims who may have an entitlement to make an application for assistance under the Act.81 VOCAT will attempt to wait until all related victims have lodged their applications for assistance before considering any related victim application.82
  3. 6.78 This process can cause significant delays in related victims receiving assistance under the Act. The Commission currently does not have data concerning processing times for the applications of related victims. However, the review of the Queensland victims of crime assistance legislation found that a similar use of pools for related victims under that scheme resulted in related victims receiving assistance around one month later than applicants in other victim categories.83
  4. 6.79 Another concern raised in the Queensland review was that the use of a finite pool of assistance for a group of victims can result in some victims being unable to make a claim for assistance if they do not do so in a timely manner.84 Some related victims, such as children, may take a considerable amount of time to make an application.85 However, if these victims apply later when, for example, they become aware of their injuries, the pool may be exhausted. Although VOCAT is able to exceed the pool in exceptional circumstances,86 there is still no guarantee that such victims will be able to access financial assistance under the Act.
  5. 6.80 The fact that the related victims pool can be reduced by an award made in respect of funeral expenses is also problematic. In preliminary consultations the Commission was told that the average funeral cost has dramatically increased since the amounts of assistance under the Act were set and that the reduction of the overall pool for funeral expenses now operated to significantly decrease the awards received by related victims.
  6. 6.81 One option for reform is to remove the pool of assistance for related victims. This was recommended by the Queensland Department of Justice and Attorney-General in its review of the Victims of Crime Assistance Act 2009 (Qld).87 Queensland has since introduced an amendment removing the pools of assistance from its victims of crime assistance scheme.88 Moreover, there are no pools of assistance in either the New South Wales or Australian Capital Territory schemes, which both have similar victim categories to Victoria.89 This option would remove the complexity of the application process for related victims.
  7. 6.82 Alternatively, funeral expenses could be removed from the pool of assistance for related victims. This would prevent the assistance that is available to related victims being reduced by the costs of the funeral. Another option is to increase the total assistance available to related victims in order to account for the increased cost of funerals.

Questions

  1. 11 Should the Act be amended to remove the pool of assistance for related victims? If not, should the total maximum cumulative amount of assistance available for a pool of related victims be increased?
  2. 12 Should the Act be amended to reflect the rising cost of funerals? If so, what amendments should be made? Should funeral expenses be excluded from the total maximum cumulative amount of assistance available under the Act for a pool of related victims?

 

Categories of award

  1. 6.83 As noted above, under the Act the main categories for which awards of financial assistance are available are:
  • expenses actually or reasonably likely to be incurred—such as for counselling and medical expenses
  • in exceptional circumstances, other expenses actually or reasonably likely to be incurred to assist recovery
  • for primary victims only—special financial assistance as ‘a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.90
  1. 6.84 This section explores potential issues relating to the categories of award that are available under the Act, and whether the current categories of award are still appropriate.
  2. 6.85 It also sets out options for reform to ensure that the categories of award under the Act meet the needs of victims.
  3. 6.86 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the categories of award under the Act. Specific questions are also set out below.

Are the current categories of award under the Act still appropriate?

  1. 6.87 Generally, the categories of award available under the Act appear to adequately meet victims’ needs. The Commission notes that the generous interpretations of ‘medical expenses’ and ‘counselling’ have enabled victims to make claims for a wide range of expenses. For example, in NF v Victims of Crime Assistance Tribunal,91 martial arts therapy was found to constitute ‘counselling’, despite ‘differ[ing] from traditional counselling’.92
  2. 6.88 Moreover, in Ractliffe v Victims of Crime Assistance Tribunal,93 the cost of an occupational therapy assessment provided for the purposes of regaining a driving licence was considered to be a ‘medical expense’.94 In that case, the applicant was a victim of an assault, which had resulted in him suffering brain injury and having his driving licence removed, following a finding that he was unfit to drive.95

 

 

  1. 6.89 In addition, the introduction of awards for safety-related expenses in 2010 has been ‘generally considered to be a positive step’.96 This category of assistance is viewed as especially useful for victims of family violence,97 who often face ongoing concerns for their safety.
  2. 6.90 However, the exclusion of assistance for expenses incurred through loss or damage to property can result in some awards being inadequate to meet victims’ recovery needs. This exclusion can particularly affect victims of family violence, who may require property-related assistance in order to achieve the independence and security necessary to their recovery, both in the short and longer term.98
  3. 6.91 One option for reform is to include awards for expenses related to property loss or damage under the Act. This could be done generally, or only in relation to specific victims, such as victims of family violence. See Chapter 5 for a more detailed discussion of the option to provide financial assistance for property loss or damage.
  4. 6.92 Another gap in the current categories of award under the Act is the lack of award for childcare expenses. While childcare expenses may be claimed as safety-related expenses depending on the circumstances, there is no explicit category of award for expenses of this nature.
  5. 6.93 The lack of award for childcare expenses under the Act may affect the ability of victims who do not have access to affordable childcare to make practical arrangements for their safety.99 It also may affect their ability to attend medical and counselling appointments to assist in their recovery.100
  6. 6.94 The Whittlesea Community Legal Service suggests the inclusion of childcare expenses in the Act as an expense that can be claimed under an interim award.101 It notes this would be beneficial for victims of family violence as it would enable them to spend time making arrangements for their safety and that of their family by, for example, finding alternative accommodation or meeting lawyers.102 However, it also notes that there may be practical difficulties with this suggestion, such as those involved in finding short-term childcare.103
  7. 6.95 An option for reform is to explicitly include assistance for childcare expenses in the Act.

Question

  1. 13 Are the current categories of award under the Act still appropriate to meet the needs of victims of crime? If not, how should the categories of award under the Act be amended and what should be included?

 

 

Requirement for certain expenses to be reasonable

  1. 6.96 The Act requires most expenses to be reasonable. This applies to expenses for counselling services,104 medical expenses,105 safety-related expenses,106 other expenses for related victims107 and recovery expenses.108
  2. 6.97 In CS v Victims of Crime Assistance Tribunal,109 VCAT considered whether the applicant’s claim for counselling, which had been received on a weekly to fortnightly basis for five years, was ‘reasonable’. It held that these counselling expenses were not reasonable because, among other things, there was little evidence of improvement in the applicant’s mental health and the psychologist had not attempted to reduce the counselling sessions.110 VCAT arrived at this conclusion despite accepting that the applicant believed that she ‘would not be here now’111 without the psychologist and that ‘she was comforted by just knowing that she can call on her’.112
  3. 6.98 The view that counselling services are not reasonable if there is no evidence of improvement in the applicant’s health is problematic. This is because some victims may never overcome the injuries that they suffer as a result of an act of violence. This is especially so for victims of child sexual abuse,113 such as the applicant in CS. In these situations, it is questionable whether an applicant should be prevented from continuing with counselling due to it only being supportive in nature, rather than rehabilitative.
  4. 6.99 Moreover, if this interpretation of ‘reasonable’ is also applied to medical expenses under the Act, then victims may only be awarded assistance for medical procedures that are effective in the victim’s recovery, rather than those that reduce pain or promote stability. This could result in victims being denied assistance for expenses that are fundamental to their quality of life.
  5. 6.100 In order to overcome this problem, the Act could define ‘reasonable counselling services’ in a way that ensures that the focus is on the benefit to the applicant rather than a tangible improvement in health.
  6. 6.101 Alternatively, the Act could be amended to remove the words ‘reasonable’ and ‘reasonably incurred’ from the categories of award.

Question

  1. 14 Is it appropriate for the Act to require that the costs for certain expenses, such as counselling services, be reasonable? If not, what changes should be made to the Act?

 

 

Additional awards to assist recovery and the need for ‘exceptional circumstances’

  1. 6.102 As noted above, under the Act, VOCAT can grant additional financial assistance to assist recovery in exceptional circumstances.
  2. 6.103 Primary victims and related victims can, in exceptional circumstances, make a claim for other expenses actually and reasonably incurred, or reasonably likely to be incurred, to assist in their recovery.114
  3. 6.104 Certain secondary victims can make a claim for recovery expenses in exceptional circumstances where:
  • the secondary victim was under 18 at the time of the act of violence, the primary victim was their family member,115 and the secondary victim was injured by witnessing the act of violence,116 or
  • the secondary victim was a parent or guardian of the primary victim, the primary victim was under 18 at the time of the event, and the secondary victim was injured by subsequently becoming aware of the act of violence.117
  1. 6.105 In preliminary consultations the Commission was told that awards for recovery expenses in exceptional circumstances can be beneficial, allowing victims access to financial assistance tailored to their specific needs.
  2. 6.106 The Commission was informed that claims for recovery expenses can enable victims to make a claim for expenses that they would otherwise be unable to access under the Act. Specifically, the recovery expenses category is sometimes used to cover expenses flowing from financial abuse or property damage.
  3. 6.107 However, there are also some problems with awards for recovery expenses in exceptional circumstances. These relate to VOCAT’s broad discretion to make such awards and the interpretation of exceptional circumstances. These issues are considered below.
Broad discretion to award recovery expenses
  1. 6.108 VOCAT has a very wide discretion in making awards for recovery expenses in exceptional circumstances under the Act, both in relation to the applicant’s eligibility for an award under this category and the kinds of expenses that will be covered. This can result in inconsistency in awards for different victims. In some cases an application for financial assistance for a gym membership is successful, whereas in others it is not.118
  2. 6.109 One option for reform is to limit the discretion of the decision maker when making awards for recovery expenses in exceptional circumstances by putting in place guiding principles. For example, the administration of the flexible support packages (FSPs), which are government-funded packages to assist family violence victims, is guided by funding principles.119 These principles outline the goals for which FSPs can be provided, such as ‘moving to independent living’, ‘improving employment opportunities’ or ‘having better health and well-being’.120 They also include certain requirements, such as that the funding must be the most relevant option to meet that person’s needs, as well as certain prohibitions, such as that FSPs cannot be used for gambling.121
  3. 6.110 A similar set of guidelines could be implemented for VOCAT awards for recovery expenses to improve consistency in awards while also retaining flexibility.
The requirement for ‘exceptional circumstances’ for recovery expenses
  1. 6.111 VCAT has interpreted exceptional circumstances as ‘out of the ordinary’. This means that only victims who suffer an unusual or uncommon reaction to a crime seem to be eligible for an award for recovery expenses. For example, in RN v Victims of Crime Assistance,122 in which the applicant had been the victim of a rape in her own bedroom, VCAT found that exceptional circumstances did not exist. This was because it held that her resulting post-traumatic stress disorder, anxiety and depression were ‘depressingly common’123 for victims of rape and therefore not ‘unusual, special or out of the ordinary’.124
  2. 6.112 By comparison, in Mendez v Victims of Crime Assistance Tribunal,125 the fact that the applicant continued to suffer from her injuries long after she was physically assaulted was considered to constitute ‘exceptional circumstances’ for the purposes of section 8(3). VCAT considered that:

the persistence of the conditions of depression and post-traumatic stress disorder more than 12 years after the assault, along with the continued disfigurement to the nose, constitute circumstances out of the ordinary course.126

  1. 6.113 This emphasis on whether the applicant’s response is abnormal or uncommon, rather than on the severity of the act of violence or the harm suffered, may mean that awards for recovery expenses are not always made to those who need them the most.
  2. 6.114 An option for reform is to define exceptional circumstances in the Act so that the emphasis is on severity of the harm suffered or the nature of the act of violence, instead of whether a victim’s injuries are abnormal or uncommon.
  3. 6.115 Alternatively, the requirement that exceptional circumstances exist in order to be awarded assistance for recovery expenses could be removed. This would enable all victims to be able to make a claim for recovery expenses.

Questions

  1. 15 Is it appropriate for the Act to limit awards for recovery expenses to ‘exceptional circumstances’? If not, what changes should be made to the Act?
  2. 16 In addition to the financial assistance available under the Act, are there other ways to promote the recovery of victims from the effects of crime? If so, is there a need for these other ways to be supported by the Act?

 

Interim awards

  1. 6.116 The Commission is unaware of any concerns relating to the quantum of interim awards or the types of expenses for which an interim award can be claimed.
  2. 6.117 However, the Commission is aware of possible problems relating to interim awards and timeliness. Timeliness of awards is discussed in Chapter 10.
  3. 6.118 There are also issues relating to the nature of interim awards. The fact that interim awards are not final and may be required to be later reimbursed, deducted from awards or varied can result in uncertainty for applicants and inefficiency for the Tribunal.
  4. 6.119 An alternative model is provided by the victims’ assistance scheme in New South Wales. Under the Victims Rights and Support Act 2013 (NSW), final awards can be granted to primary victims for immediate needs up to a maximum of $5000 to ‘cover expenses for treatment or other measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim’s safety, health or well being’.127 This category of award exists alongside the other three categories of assistance available to primary victims for counselling services, economic loss and recognition payments.128
  5. 6.120 An option for reform is to adopt a similar model to that in New South Wales. This approach would enable victims to access assistance for urgent expenses without the need for readjustments. Moreover, it would allow for an award for such expenses to be considered together with expenses to meet the victim’s needs in the longer term.
  6. 6.121 However, without an administrative system like that in New South Wales, it may be difficult to ensure that such awards are provided to victims speedily. The benefits of an administrative model are discussed below in Chapters 10 and 15.

Question

  1. 17 Are the interim awards available under the Act adequate to meet victims’ needs, including with respect to quantum and timeliness? If not, how should they be improved?

 

Limitations of the special financial assistance provision

  1. 6.122 In the first consultation paper, the Commission considered the limitations of the special financial assistance categories for family violence victims. In particular, it explored whether the categories accounted for the impact of cumulative harm caused to victims by persistent and protracted patterns of abuse, as well as the impact of such acts on children, as a particularly vulnerable class of victim.129
  2. 6.123 However, these issues are also relevant for other classes of victim, such as victims of child abuse, elder abuse and abuse of people with disability. Therefore they are also considered in this paper.
  3. 6.124 In addition, this section explores whether the formula in the Act used to determine awards of special financial assistance is the most appropriate way to calculate the amount payable to primary victims for harms arising from crime. This section then sets out options for reform.
  4. 6.125 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the special financial assistance categories and uplift provisions, if any, to ensure that the Act recognises the harm suffered by victims. Specific questions are set out below.

 

 

Recognising cumulative harm

  1. 6.126 The Victorian Royal Commission into Family Violence (the Royal Commission into Family Violence) noted that the special financial assistance categories in the Act do ‘not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.130
  2. 6.127 This is because the relevant categories of special financial assistance are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.131
  3. 6.128 While the maximum award for a category of special financial assistance can be increased where there has been a series of ‘related criminal acts’, this can only be done in limited circumstances.132 As mentioned above, these circumstances are as follows:
  • Where the applicant is a victim of a series of related criminal acts falling within Category D, the maximum award available is increased from the Category D maximum amount ($650) to the Category C maximum amount ($1300).133
  • Where the applicant is the victim of a series of related criminal acts and they were a child, elderly or impaired at the time that any of those acts was committed, the maximum award available for acts falling within Category C ($1300) or Category D ($650) is increased to the maximum available in Category B ($3250).134
  • Where the applicant is a victim of a series of related acts of indecent assault or sexual penetration, the maximum award available for acts falling within Category B ($3250), Category C ($1300) or Category D ($650) is increased to that of Category A ($10,000).135
  1. 6.129 As the first consultation paper discussed, this is a problem for victims of family violence, who often experience violence over long periods of time.136 The Royal Commission into Family Violence found that victims of family violence who are not victims of criminal acts in the higher categories, such as attempted murder or offences involving sexual penetration (Category A):

may only be eligible for the amount tied to the ‘less serious’ offences in perhaps category D or C—despite potentially having endured these ‘less serious’ offences over a long period of time.137

  1. 6.130 The limited circumstances in which the special financial assistance categories account for cumulative harm are also a concern for other victims who experience repeated violence, including victims of elder abuse, child abuse and abuse of people with disability.
  2. 6.131 As noted above, an ‘uplift’ is available for a series of related criminal acts falling within Category C or D if the primary victim was a child, elderly or impaired at the time of any of those acts. However, the maximum amount available is only increased to that of Category B ($3250), rather than Category A ($10,000).138 This sum may still not reflect the severe impact that protracted violence can have on such vulnerable victims.
 
A higher award for a series of any related criminal acts
  1. 6.132 One way to ensure that the Act takes into account the cumulative harm of persistent and protracted violence is to amend the special financial assistance categories so that a higher award is available for a series of related criminal acts.
  2. 6.133 Regulation 7 could be amended so that being the victim of a series of any related criminal acts is a circumstance in which the Category A maximum amount is available. This could be achieved by removing the words ‘being acts of indecent assault or sexual penetration’ from regulation 7(c).
  3. 6.134 An alternative option is that a series of related criminal acts could be considered an ‘aggravating factor’ that results in an uplift to different amounts, depending on the nature of the criminal acts involved. This is the approach of the Australian Capital Territory scheme, which lists ‘a series of offences that are related’ as a ‘circumstance of aggravation’.139 Under the Australian Capital Territory scheme, the existence of a ‘circumstance of aggravation’ gives rise to higher ‘recognition payments’ which vary for different offences.140 For example, for a sexual offence punishable by imprisonment for 14 years or more, the ordinary recognition payment available is $15,000, whereas it is $18,750 if a circumstance of aggravation existed.141 For offences involving deprivation of liberty, the ordinary recognition payment is $2000, whereas it is $2500 if there was a circumstance of aggravation, such as the existence of a series of related acts.142
  4. 6.135 This approach could be incorporated into the Victorian scheme by providing, for example, that the existence of a series of related criminal acts that would ordinarily fall into Category D gives rise to the maximum available for Category B, while a series of related criminal acts that would ordinarily fall into Categories C and B entitles a victim to the maximum available for Category A. Alternatively, something even more similar to the Australian Capital Territory approach could be adopted, with set higher amounts for each offence and a list of aggravating factors.
Expanding the circumstances in which a higher award is available for a series of related criminal acts
  1. 6.136 Another option is to maintain the availability of an uplift to Category A for a series of related acts to only some circumstances, but to expand those circumstances to include additional situations, such as family violence.
  2. 6.137 In their submission to the Royal Commission on Family Violence, the Magistrates’ Court and Children’s Court recommended that the Regulations be amended to include a series of acts of family violence as a circumstance in which the Category A maximum is available.143 As the first consultation paper noted, this could be achieved by adding ‘family violence’ to regulation 7(c) of the Regulations as one of the circumstances (along with indecent assault and sexual penetration) in which a series of criminal acts can be compensated by the Category A maximum award.144
  3. 6.138 Regulation 7 could also be amended to include victims of a series of related criminal acts who were children, elderly or impaired at the time of any of the acts. This would mean that the Category A maximum award would be available for such victims, instead of the Category B maximum award, as is currently the case under regulation 8.
 
Recognising a pattern of abuse within a higher category of special
financial assistance
  1. 6.139 An alternative option would be to explicitly recognise a pattern of certain forms of violence within one of the higher categories of special financial assistance. The Northern Territory victims’ assistance scheme recognises ‘domestic violence injuries’ as a distinct compensable category of injury for which a victim can receive a lump sum.145 ‘Domestic violence injuries’ are defined as injuries resulting from a series of three or more related criminal acts committed by an offender with whom the victim is in a domestic relationship, or stalking in contravention of a domestic violence order.146 For this category of compensable injury, victims can be awarded between $7500 and $10,000.147
  2. 6.140 This approach could be adopted in the Victorian Regulations by including as a circumstance a ‘series of related acts’ of family violence as an ‘act of violence’ falling in Category A or B. This could also be done for a series of related criminal acts that occur in the context of child abuse, elder abuse or abuse of people with disability. Alternatively, ‘a series of related acts of family violence’ could be defined to include violence that is perpetrated by carers and other residents in a place of residential care in order to ensure that most abuse encountered by children, older people or people with disability is encompassed by this provision.148
Removing the categories of special financial assistance
  1. 6.141 Another way to improve the Victorian scheme’s recognition of cumulative harm, as discussed in the first consultation paper, is to remove the categories of special financial assistance and instead require VOCAT to have regard to certain factors in determining an appropriate award.149 These factors could include an assessment of whether there was a pattern of abuse, as well as of the severity of the criminal acts and the injuries suffered. Under this approach, the maximum amount of special financial assistance for any application would be $10,000.
  2. 6.142 This approach would mean that VOCAT could make an assessment of all the circumstances without being confined to set categories. It would also enable a consideration of the existence of a pattern of violence to occur at the same point in the decision-making process as the nature of the criminal act. However, this option would also give VOCAT a considerable amount of discretion in relation to awards of special financial assistance. The problems associated with special financial assistance and the decision maker having a wide discretion are discussed further below at [6.153]–[6.163].

Question

  1. 18 Should the special financial assistance formula be amended to take into account the cumulative harm of a series of related criminal acts? If so, how should the formula be amended?

 

 

Recognising vulnerability

  1. 6.143 Another concern is that the categories of special financial assistance do not sufficiently account for the vulnerability of certain victims, such as children, people with disability, or the elderly. This is also an issue for victims of offences committed by a person in a position of power, trust or authority over them.
Accounting for the harm suffered by victims who are children, older people and people with disability
  1. 6.144 The Regulations explicitly provide for an uplift for a victim who was a child, elderly or impaired at the time of the act of violence in limited circumstances. These are:
  • where the act of violence, or related acts of violence, would ordinarily fall in Category D, giving rise to the availability of the maximum amount for Category C ($1300)150
  • where the act of violence, or related acts of violence, would ordinarily fall in Category C or D and the victim also suffered a serious injury, was the victim of a series of related criminal acts of violence or suffered a deprivation of their liberty.151 This gives rise to the availability of the maximum amount for Category B ($3250).
  1. 6.145 However, it is possible that being subjected to any offence as a child, an older person or a person with a physical, psychological or cognitive impairment is reason alone for an uplift to one of the higher categories of special financial assistance, such as Category A or B. This is because experiencing an act of violence can cause very serious harm to these vulnerable groups.152
  2. 6.146 In order for the special financial assistance categories to better take into account the experience of vulnerable victims, the Regulations could be amended so that being a child, an older person or a person with disability is a factor that alone enables an uplift for any offence.
  3. 6.147 One way of doing this is to follow the Australian Capital Territory approach of including ‘circumstances of aggravation’, which allow for an uplift of the amount available for every offence for which a ‘recognition payment’ is available. The Australian Capital Territory scheme includes the age of the victim at the time of the act of violence (if they were under 18 or over 65) and the fact that a victim suffered from impaired physical, psychological or intellectual capacity at the time as ‘circumstances of aggravation’.153 This means that if a victim was a child, older person or person with disability when the act of violence occurred, they will always be entitled to a higher lump-sum payment.
  4. 6.148 Furthermore, the Australian Capital Territory approach of ‘circumstances of aggravation’ allows for an even greater uplift if there was a combination of two or more ‘circumstances of aggravation’. This means that a child, elderly person, or person with disability would be entitled to a higher award if they were also the victim of a related series of criminal acts or if they also suffered a serious injury. If Victoria adopted a similar approach to the Australian Capital Territory, it would be able to maintain its current recognition of the combined effects of aggravating factors.
 
Special financial assistance for children who hear, witness or are otherwise exposed to violence
  1. 6.149 Another potential issue with the availability of special financial assistance under the Act is that it can only be awarded to primary victims. This means that children who hear, witness or are exposed to violence are unable to access it because such child victims are currently classified as secondary victims under the Act. As noted in Chapter 5, this is problematic because special financial assistance can be particularly valuable for child victims due to difficulties in anticipating their future level of injury and suffering.154
  2. 6.150 An option for reform is to amend the Act so that all child victims are entitled to special financial assistance, whether or not they are classified as primary victims under the Act. This would enable children to be able to access a lump-sum payment no matter what form their experience of violence takes.155
‘Uplift’ where perpetrator is in a position of power, trust or authority in relation to them
  1. 6.151 There is currently no uplift available in the Regulations for victims of an act of violence that is perpetrated by an offender who was in a position of power, trust or authority in relation to the primary victim. Accordingly, the Regulations may not adequately account for the increased harm that victims can suffer when they are in a relationship of dependence or influence with the perpetrator. In addition, victims of a single act of family violence, as well as victims of other forms of violence that involve an abuse of power but who were not children, elderly or impaired, may not currently be eligible for any form of uplift under the Regulations.
  2. 6.152 One way to address this issue is to amend the Regulations so that they provide for an uplift where the perpetrator was in a position of power, trust or authority in relation to the victim. Again, the Australian Capital Territory scheme includes this as a ‘circumstance of aggravation’ which entitles a victim to a higher recognition payment.156 Victoria could also adopt this approach.

Questions

  1. 19 Should the special financial assistance formula be amended to take into account the experiences of vulnerable victims, including child victims, elderly victims, victims with disability and victims of an act of violence perpetrated by someone in a position of power, trust or authority? If so, how should the special financial assistance formula be amended?
  2. 20 Who should be eligible for special financial assistance under the Act?

 

 

VOCAT discretion and the prescribing of minimum and maximum amounts for each category of special financial assistance

  1. 6.153 As detailed above in Table 2, the Act prescribes minimum and maximum payments for each category of special financial assistance. In each category, there is a significant difference between the minimum and maximum amount specified. The minimum amount is usually less than half of the maximum amount. For example, for Category A, the maximum amount is $10,000, whereas the minimum amount is $4667. This gap is even more pronounced in relation to Category D, where the maximum amount is $650 and the minimum amount is $130.
  2. 6.154 The Act does not provide any guidance as to how a decision is made regarding the quantum to be awarded.
  3. 6.155 In practice, and as illustrated by RBA v Victims of Crime Assistance Tribunal, a higher amount is usually granted where the applicant has suffered an injury, whereas the lower amount is more likely to be granted when the applicant has only suffered a significant adverse effect.157
  4. 6.156 However, within the range of each category, VOCAT has substantial discretion as to the exact quantum of special financial assistance that it awards an applicant. This can lead to inconsistent outcomes.
  5. 6.157 This problem was noted by the Queensland Department of Justice and Attorney-General in its review of the Victims of Crime Assistance Act 2009 (Qld). At the time of the review, the Queensland scheme had a similar approach to Victoria and outlined maximum and minimum amounts of ‘special assistance’ that could be awarded to victims of particular categories of offence.
  6. 6.158 However, the review found that this framework resulted in:

the assessor having to use their discretion to …. determine what specific amount should be paid within the range of the relevant category. This process leads to inconsistency in decisions as there is no specific formulation for making decisions about what amount a victim should be paid within the broad range.158

  1. 6.159 Accordingly, the Queensland Department of Justice and Attorney-General recommended that ‘the prescribed maximum and minimum amounts for special financial assistance should be removed and replaced with one amount for each category’.159
  2. 6.160 Queensland has since passed amending legislation replacing the maximum and minimum awards of special assistance with one set amount for each category of offence.160
  3. 6.161 However, in line with the views of many stakeholders that assessors should still be able to consider the particular circumstances of the case,161 the Queensland scheme retains its uplift provisions.162
  4. 6.162 Two other Australian jurisdictions use a similar system of lump-sum payments in their victims of crime financial assistance schemes; New South Wales and the Australian Capital Territory. Both of these jurisdictions set one amount for the recognition payment available for each offence or category of offence.163 However, the Australian Capital Territory scheme also provides for fixed increased amounts for each offence where one or more ‘circumstance of aggravation’ exists.164
  5. 6.163 As in Queensland, an option for reform in Victoria is to remove the minimum and maximum amounts for each category of special financial assistance and replace them with one amount for each category in order to improve efficiency and consistency in decision making. Like the Queensland approach, the Victorian scheme could maintain uplift provisions, whether in their current form or a different form, so that individual circumstances can be taken into account.

Question

  1. 21 Should the prescribed maximum and minimum amounts of special financial assistance be removed and replaced with one amount for each category? If so, what changes should be made to the Act and what should the amounts be?

 

The adequacy of amounts of special financial assistance available

  1. 6.164 The amounts of special financial assistance that are available under the Act may not adequately recognise the harm experienced by victims of violent crime.
  2. 6.165 In particular, preliminary consultations indicated that the amounts available for offences that come within Categories C and D are considered low. For Category C, the maximum amount is $1300 and the minimum amount is $650.165 For Category D, the maximum amount is $650 and the minimum amount available is $130.166
  3. 6.166 The Commission was informed that in some cases the awarded amounts are so low that the costs awarded to an applicant’s legal representatives are higher than the special financial assistance awarded to the applicant.
  4. 6.167 Moreover, as part of its review of Queensland’s victims of crime financial assistance legislation, the Queensland Department of Justice and Attorney-General considered that similar maximum amounts in its scheme were inadequate. At the time of the review, the Victims of Crime Assistance Act 2009 (Qld) had four categories of ‘special assistance’, which were very similar to Victoria’s categories of ‘special financial assistance’. The maximum amount available under Category C was $1300, while the minimum amount was $651. The maximum amount for Category D was $650 and the minimum amount was $130. The review found that the ‘maximum amounts for these two categories [did] not sufficiently recognise the harm caused to the victim in these instances’.167
  5. 6.168 Consequently, the final report of the review recommended that the maximum amount for Category C be increased to $2000 and the maximum amount for Category D be increased to $1000. As noted above at [6.159], it also recommended removing the minimum amounts for each category of special assistance. Queensland has since passed amendments implementing these recommendations into its scheme.168
  6. 6.169 In addition, in the Australian Capital Territory and New South Wales, the other Australian jurisdictions with a similar system of lump-sum payments to Victoria, the minimum recognition payment available is $1000169 and $1500,170 respectively. This means that the overall minimum recognition payment ($1500) in New South Wales is higher than the maximum award of special financial assistance for Category C ($1300) under the Victorian Act.
  7. 6.170 The maximum award of special financial assistance available under the Victorian Act of $10,000 may also be too low. While Queensland has maintained its maximum award of special assistance as $10,000, the New South Wales scheme can award lump-sum payments of up to $15,000171 and the Australian Capital Territory scheme of up to $26,250.172
  8. 6.171 Given the divergence in the quantum of special financial assistance available in Victoria as compared to other Australian jurisdictions, it may be that the maximum and minimum amounts of special financial assistance available to victims under the Act need to be increased.

Question

  1. 22 Should the amounts of special financial assistance in the Act be increased?
    If so, what should the amounts be?

 

Treatment of related criminal acts

  1. 6.172 As discussed above at [6.53]–[6.56], related criminal acts can be treated as a single act of violence for the purposes of making an award under the Act.173
  2. 6.173 Preliminary consultations undertaken by the Commission indicated that the fact that the ‘related criminal acts’ provision enables victims to make a single application, rather than multiple ones, can benefit the applicant by simplifying the process.
  3. 6.174 However, as noted in the first consultation paper, the ‘related criminal acts’ provision can also operate to disproportionately reduce the awards of financial assistance made to certain cohorts of victims, such as victims of family violence.174 This is because ‘domestic violence, almost by definition, will involve repeated acts of abuse by the same offender’.175
  4. 6.175 This means that awards of financial assistance for family violence victims may often not reflect the cumulative harm caused by a pattern of abuse. As the Magistrates’ Court and Children’s Court jointly submitted to the Royal Commission on Family Violence, the related criminal acts provision means:

that a victim of long-term, chronic family violence (a series of related acts) is placed on an equivalent footing to someone who has been injured in a one-off assault, for example in a brawl between strangers.176

  1. 6.176 The ‘related criminal acts’ provision can also unfairly affect victims of other forms of long-term abuse, such as child abuse, elder abuse and abuse of people with disability. This is because these forms of abuse are also often perpetrated by the same offender and in the same location.177 As such, they are likely to be treated as ‘related’.
  2. 6.177 In contrast, a victim of a series of robberies by different offenders is unlikely to have their claim reduced because the criminal acts are less likely to be considered ‘related’.178
  3. 6.178 The disparity between multiple offences committed by the same offender and multiple offences committed by different offenders was described as ‘grossly unfair and unjust’ in a submission to the Australian Law Reform Commission and New South Wales Law Reform Commission by the Wirringa Baiya Aboriginal Women’s Legal Centre Inc.179

Amending the related criminal acts provision

  1. 6.179 One way to overcome some of these issues is to reframe the ‘related criminal acts’ provision so that it does not unfairly affect victims of long-term abuse.
  2. 6.180 The Australian Law Reform Commission and New South Wales Law Reform Commission in their joint report, Family Violence—A National Legal Response,180recommended that victims’ compensation schemes should not provide that acts are ‘related’ merely because they are committed by the same offender in order to mitigate the unfair effect on victims of family violence181
  3. 6.181 As noted in the first consultation paper, this recommendation could be implemented in the Act by removing the reference to the same perpetrator or perpetrators in subsection 4(a)(ii) of the Act.182 Alternatively, other criteria could be added to the circumstances in which acts carried out by the same perpetrator or group of perpetrators are considered ‘related’. For example, section 4(a) of the Act could be amended to require that the acts were committed by the same person and that they share some other common factor in order to be ‘related’, rather than these being separate and distinct criteria as is currently the case under the Act.183
  4. 6.182 However, Forster argues that the recommendation of the Australian Law Reform Commission and New South Wales Law Reform Commission does not go far enough to address concerns relating to victims of family violence. She writes that the other grounds that are used to collapse multiple crimes into a single crime would still disproportionately affect victims of family violence.184 This is because acts of family violence frequently share other ‘common factors’. For example, ‘the acts of violence are often similar (whether physical, sexual, emotional or economic) and typically occur … in the same location (the family home)’.185 The same is also true of some other forms of abuse, including child abuse, elder abuse and abuse of people with disability.
  5. 6.183 An alternative approach can be found in the Australian Capital Territory scheme. Section 44(2) of the Victims of Crime (Financial Assistance) Act 2016 (ACT) provides two examples of when criminal acts may be considered ‘related’. The first is offences that involve the same offender and same primary victim; the second is offences that happen
    at the same time, or nearly so. However, section 44(3) of that Act only requires that related acts of violence be treated as a single act in three circumstances:
  • where the series of offences are (or are likely to be) part of a single ongoing offence
  • where treating the acts separately would result in the applicant receiving an amount of financial assistance that is disproportionate to the totality of harm that they suffered
  • in circumstances prescribed by regulation.
  1. 6.184 This model addresses some of the unfairness of the Victorian Act by separating the circumstances in which multiple acts are considered related, and those in which they must be treated as a single act. This shifts the emphasis away from the similarity between the acts, to a consideration of the nature of the crime and the severity of the harm suffered. In doing so, this approach is less likely to result in victims of family violence, child abuse, elder abuse and abuse of people with disability having their claims reduced. This is because, while the acts comprising these forms of abuse might be related, their cumulative harm can be significant.

Increasing the maximum award of financial assistance for victims of a series of related criminal acts

  1. 6.185 Another option is to set a higher amount for the total financial assistance available for a victim of a series of related criminal acts. For example, in Tasmania the maximum award for a primary victim of a single offence is $30,000, whereas the maximum award for a primary victim of multiple offences is $50,000.186 This way, an applicant only needs to make one application for financial assistance in relation to a series of related criminal acts, but their award can reflect the cumulative harm of a pattern of abuse.

Questions

  1. 23 Should the definition of ‘related criminal acts’ be amended to have regard to the cumulative harm of long-term abuse? If so, what should the definition be?
  2. 24 Should the Act be amended to give victims an opportunity to object if claims are to be treated as ‘related’?
  3. 25 Should there be a higher maximum for awards of financial assistance under the Act for victims of a series of related criminal acts? If so, what changes should be made to the Act?

 

 

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