10. Making an award

 

Introduction

  1. 10.1 This chapter outlines the circumstances in which the Victims of Crime Assistance Tribunal (VOCAT) may make an award for financial assistance. More specifically, this chapter considers:
  • when VOCAT must refuse to make an award of assistance1
  • matters the Tribunal must have regard to in determining whether or not to make an award or the amount of assistance to award.2
  1. 10.2 This chapter relates to the fourth matter identified in the terms of reference, which asks the Victorian Law Reform Commission (the Commission) to review the matters giving rise to refusal of an application for financial assistance except in special circumstances.
  2. 10.3 The matters VOCAT must have regard to in determining whether to make an award, and the amount of an award, are outlined in sections 52, 53 and 54 of the Victims of Crime Assistance Act 1996 (Vic) (the Act). Broadly, these sections require VOCAT to consider a victim’s character and behaviour before, during and after a crime. These matters may be unrelated to the act of violence itself.
  3. 10.4 In examining the matters VOCAT must have regard to, this chapter considers why these provisions of the Act might disproportionately impact victims of family violence as compared to other victims of crime, discusses options for reform and poses questions for consideration.

When can an award be made?

  1. 10.5 VOCAT may award financial assistance to a victim of crime where it is satisfied that an act of violence occurred, that the applicant is a victim of that act of violence, and that the applicant is eligible to receive the assistance.3 It is not a requirement of the Act that someone needs to have been charged with or convicted of an offence for an award to be made.4
  2. 10.6 However, even if VOCAT determines that a victim is eligible for an award, the Act requires that in some circumstances VOCAT must nevertheless refuse to make an award of assistance. These circumstances are set out in section 52 of the Act and are discussed further below.5
  3. 10.7 In addition, section 54 of the Act requires that in determining whether to make an award of assistance, or the amount of assistance to award, the tribunal must consider a number of additional specified factors.6 These circumstances and considerations are discussed in this chapter.
  4. 10.8 There are good policy reasons for inclusion of these considerations in the Act. They enable VOCAT to refuse to make an award where it would be inconsistent with the purpose and objectives of the Act. For example, applicants who have been convicted of violent crimes may not be appropriate recipients of assistance which is a symbolic expression by the state of the community’s sympathy.7
  5. 10.9 The Magistrates’ Court of Victoria in its submission to the Victorian Royal Commission into Family Violence (the Royal Commission) has stated that these provisions allow VOCAT to balance competing factors when making a decision about financial assistance. However, the Magistrates’ Court of Victoria also acknowledges that the provisions in the Act do not provide adequate guidance about the circumstances of family violence and how these factors should be considered.8 The effect of this is considered below with reference to specific provisions under sections 52, 53 and 54.

Mandatory refusal of an award under section 52 of the Act

  1. 10.10 Under section 52 of the Act there are two circumstances where VOCAT must, without exception, refuse to make an award of assistance:
  • if it is satisfied the application has been made in collusion with the perpetrator of the act of violence
  • if an earlier application for assistance has been made by the applicant from the same act of violence.9
  1. 10.11 There are two further circumstances where the Tribunal must refuse to make an award of assistance, unless there are ‘special circumstances’:
  • if it is satisfied that an act of violence was not reported to police within a reasonable time
  • if it is satisfied that the applicant failed to provide reasonable assistance to any person or body engaged in the investigation, arrest or prosecution of the perpetrator (the investigatory or prosecutorial body).10
  1. 10.12 Section 52 of the Act therefore provides an exception to mandatory refusal where the Tribunal considers that there are special circumstances resulting in either a failure to report to police within reasonable time, or failure to provide reasonable assistance to police or prosecution. Each of these two circumstances is considered further in this part.

Act of violence not reported to police within a reasonable time

  1. 10.13 In determining whether an act of violence was reported to police within a reasonable time, section 53 provides that VOCAT may ‘have regard to any matters that it considers relevant’.11 This includes:
  • the age of the victim at the time of the act of violence
  • whether the victim has an intellectual disability, within the meaning of the Disability Act 2006 (Vic)
  • whether the victim has a mental illness, within the meaning of the Mental Health Act 2014 (Vic)
  • whether the perpetrator was in a position of power, influence or trust in relation to the victim
  • whether the victim was threatened or intimidated by the perpetrator
  • the nature of the victim’s injury.12
  1. 10.14 The concept of ‘within a reasonable time’ has also been the subject of judicial consideration by the Victorian Civil and Administrative Tribunal (VCAT). These cases, discussed below demonstrate the complexity of the decision making required under sections 52 and 53 of the Act.

What is considered a reasonable time for reporting to police?

  1. 10.15 In FG v Victims of Crime Assistance Tribunal,13 VCAT overturned VOCAT’s decision, ruling that the victim’s VOCAT application should not have been refused under section 52 for failure to report within a reasonable time. VCAT found that the victim’s significant delay in reporting to police was reasonable in the circumstances. In that case, the applicant alleged she had been repeatedly sexually abused by her grandfather between the ages of five and 10. In considering whether the applicant’s failure to report was ‘reasonable’ under section 52, VCAT determined that it was not reasonable for the victim to report the abuse while her grandfather was alive because of the family dynamics. VCAT also accepted that it ‘would have been futile to make a report to the police after his death’.14
  2. 10.16 Similarly in J v Victims of Crime Assistance Tribunal,15 VCAT held that a delay of approximately 35 years in reporting alleged sexual abuse to police was reasonable given the circumstances of the case. In that case, VCAT considered the way sexual assault was viewed at the time of the offences and the power dynamics in the family relationship. VCAT noted ‘[the perpetrator] was an adult member of the family and a teacher. In that position he was more … likely to be believed over the Applicant’.16 VCAT recognises here that victims who experience family violence as a child face additional barriers to reporting crimes.
  3. 10.17 Family violence dynamics were also considered in the case of Frost v Victims of Crime Assistance Tribunal.17 The applicant alleged she was raped by her husband in mid-1971 and continued to be a victim of sexual and physical abuse throughout their marriage until it ended in divorce in 1982. In 2001, the applicant applied for financial assistance from VOCAT, at which time VOCAT advised her to report the incidents to police. Accordingly, the applicant reported the incidents to police. However, police discouraged the applicant from taking the matter any further and the applicant’s claim for financial assistance was rejected by VOCAT. Grounds for rejecting the application included for not reporting within reasonable time under section 52 of the Act. On appeal to VCAT, VCAT found that the applicant’s report to police did occur within ‘reasonable’ time given the nature and dynamics of the relationship:

The explanation for absence of complaint by her in relation to the initial rape is one which I accept and is probably all too common. She was aged 17 at the time and frightened of the reaction of her parents and others. Thereafter, she was fearful for her wellbeing, and that of her son, of whom the offender is the father … I accept her evidence concerning the fear which she experienced during the marriage and its ongoing legacy ... 18

  1. 10.18 All three cases described above involved circumstances of family violence and in all cases, the circumstances of family violence were not considered by VCAT as creating an exception to mandatory refusal on the basis of ‘special circumstances’.19 Instead, VCAT considered what a reasonable time period for reporting was in the context of the circumstances of the act of violence, the nature and dynamics of the relationship and the vulnerability of the victim.
  2. 10.19 However, in S v Victims of Crime Assistance Tribunal,20 VCAT affirmed the decision of VOCAT to refuse an application on the grounds of, among other things, not reporting to police within a reasonable time under section 52. The applicant had not reported an alleged rape to police until 22 years after the alleged offence occurred. The victim was 17 years old at the time of the alleged offence. In considering the additional factors outlined in section 53, VCAT determined the applicant had not reported the alleged rape to police within a reasonable time, noting the victim was not threatened or intimidated by the alleged offenders, having only been ‘mocked’ by them.
  3. 10.20 The decision in S v Victims of Crime Assistance Tribunal is a narrower interpretation of section 53, requiring actual threats or intimidation to mitigate ‘unreasonable’ reporting time. In that case, neither VOCAT, nor VCAT on appeal, appeared to give weight to other reasons why a victim of rape might not report the matter to police, including the victim’s age at the time of the offence. This was despite the victim’s admission that she did not report to police at the time because she did not know what to do, was frightened and ashamed, felt dirty and was scared of the perpetrators.21
  4. 10.21 The implications of these cases for victims of family violence are discussed further below.

When do special circumstances mitigate an ‘unreasonable delay’ in reporting to police?

  1. 10.22 Even where VOCAT may determine that a report was not made to police within a reasonable time, section 52 of the Act enables the Tribunal to consider any special circumstances that may have brought about that delay.
  2. 10.23 In CS v Victims of Crime Assistance Tribunal,22 the applicant alleged historical sexual abuse by a number of members of her immediate and extended family. The acts of violence commenced in approximately 1936 and took place over a period of years from when the victim was between four and 14 years of age. While VOCAT refused the application because the acts of violence were not reported to police within a reasonable time, VCAT determined that special circumstances mitigated the delay in reporting, including the applicant’s age at the time of the abuse and the failure of others to whom she reported the abuse (such as a psychologist) to convince her to report the abuse to police.23
  3. 10.24 However, in TUN v Victims of Crime Assistance Tribunal,24 VOCAT refused an application for assistance on the basis of section 52, as the applicant had not made a report to police. The application related to an alleged assault and threat to kill by the applicant’s former de facto partner.
  4. 10.25 VOCAT found that no special circumstances existed to justify the lack of reporting to police, particularly as the victim had applied for an intervention order. On appeal to VCAT it was submitted on behalf of the applicant that a report had not been made to police because of special circumstances, namely that her former partner was a member of a motorcycle gang with seven convictions for manslaughter, an acquaintance had been killed after making a statement to police regarding her former partner who was also a member of a motorcycle gang, and because she did not consider applying for an intervention order as being the same as making a report to police. VOCAT had determined that such factors did not constitute special circumstances, instead holding that such factors ‘… were nothing out of the ordinary or special; it was common for such victims to fear reprisals’.25
  5. 10.26 On appeal, VCAT found that special circumstances did exist in this case. The applicant was still anxious and distressed about the possibility of reprisal and was still genuinely fearful of the alleged offender. VCAT did, however, distinguish the applicant’s experience from ‘others faced with domestic violence’, indicating special circumstances existed in this case because of the criminal profile of her former partner and because of ‘what she knows happened to others involved with members of bikie gangs, when they went to police’.26

Failure to provide reasonable assistance to an investigatory or prosecutorial body

  1. 10.27 As noted above, except where there are ‘special circumstances’, failure to provide reasonable assistance to an investigatory or prosecutorial body requires VOCAT to refuse an application for financial assistance.27
  2. 10.28 Unlike the ‘failure to report’ provisions, the Act does not provide guidance about what the Tribunal may have regard to in considering whether there are ‘special circumstances’. In addition, the phrase ‘special circumstances’ is not defined in the Act.
  3. 10.29 However, the question of what constitutes ‘special circumstances’ has been judicially considered. In Nichol v Victims of Crime Assistance Tribunal,28 VCAT found that for the purposes of section 52, special circumstances must be something ‘out of the ordinary’.29 As already noted, the extent to which family violence may, or may not, be ‘out of the ordinary’ for the purposes of section 52 is not clear.

What is failing to provide ‘reasonable assistance’?

  1. 10.30 Under section 52 of the Act, there are no prescribed positive actions a victim must undertake to satisfy ‘reasonable assistance’, such as providing a witness statement or participating in a criminal trial. However, guidance in the VOCAT application form states:

In most cases, calling the police to attend the scene of a crime is not enough. You should make a formal report, including a sworn statement (if requested), so the police can fully investigate the matter. You should give the Tribunal full details of the relevant police officer’s station, rank and registration number.30

  1. 10.31 Due to the nature and dynamics of family violence, many victims of family violence may withdraw assistance from police investigations or prosecutions, including not making a statement after calling police.31 Victims of family violence may fear the perpetrator or they may have reconciled with their partner after the violent incident. Victims of family violence
    may also have a distrust of police or other authority figures, or may fear the consequences of a successful prosecution of their partner, who may be providing financial security for their family.
  2. 10.32 The Act does not provide any guidance about whether these are the kinds of factor that can be taken into account by VOCAT. This issue has, however, been the subject of judicial consideration.
  3. 10.33 In the case of Nichol v Victims of Crime Assistance Tribunal,32 although the applicant assisted police in the initial stages of their investigation, the day before the hearing she withdrew the complaint and the police subsequently withdrew the charges. On review, VCAT held that, although the applicant had rendered appropriate assistance in the initial stages of the police investigation, by later withdrawing her complaint, she had not rendered reasonable assistance for the purposes of section 52 of the Act. Accordingly, VCAT refused the application noting ‘the proper characterisation of what happened is that [the applicant] pulled the rug out from under the police at the last minute’.33

When do special circumstances mitigate failing to provide assistance to police and prosecution?

  1. 10.34 In the same case of Nichol v Victims of Crime Assistance Tribunal, it was submitted on appeal to VCAT that even if the applicant had failed to provide reasonable assistance to police and prosecution, special circumstances existed.34 In particular, it was submitted that the applicant’s decision to withdraw her complaint was motivated by a concern for the welfare of the perpetrator and his need for assistance in relation to drug and alcohol abuse, and that these concerns and motivations for withdrawing assistance amounted to special circumstances.35
  2. 10.35 However, VCAT held that for the purposes of section 52, special circumstances require something ‘out of the ordinary’36 and VCAT determined that special circumstances did not exist because the narrative of drugs, alcohol, violent crime and domestic violence was not ‘out of the ordinary at all’.37 VCAT concluded that the combination of drug and alcohol abuse and family violence was ‘depressingly common’38 and the circumstances resulting in the applicant not providing reasonable support and assistance to police and prosecution were not brought about by any sort of special circumstance.39
  3. 10.36 However, in Rajah v Victims of Crime Assistance Tribunal,40 VCAT found the existence of special circumstances to mitigate what might otherwise be viewed as failure to assist the police. In that case the applicant was a victim of sexual and physical abuse by her mother’s former de facto husband and the circumstances of the offending and the vulnerability of the victim were accepted as giving rise to special circumstances:

In my opinion, the applicant’s failure to … furnish the police with a written statement—is explicable by reference to her psychological state, her shame and her fear of the perpetrator … I consider that the nature of the abuse, the high degree of vulnerability of the victim, her age, the consequential shame and embarrassment she experienced, the concern for her mother’s wellbeing and for her own, constitute special circumstances.41

 

Additional matters VOCAT must consider

  1. 10.37 Once VOCAT has determined that an act of violence occurred, that the applicant is a victim eligible for assistance, and that there are no circumstances giving rise to mandatory refusal under section 52 of the Act, section 54 of the Act requires VOCAT to consider a number of specified matters before determining whether or not to make an award, or in determining the amount of the award. These include:
  • the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) and attitude of the applicant before, during and after the act of violence42
  • provocation and any condition or disposition of the applicant that may have contributed to the injury43
  • whether the perpetrator will benefit directly or indirectly from the award.44
  1. 10.38 These matters are discussed further below. Character, behaviour and attitude of applicant
  2. 10.39 Section 54 of the Act requires VOCAT to have regard to the character, behaviour and attitude of an applicant in determining whether or not to make an award or the amount of assistance to award. This provision is broad, and includes considering the applicant’s character, behaviour and attitude before, during or after the act of violence. The Act specifically includes a requirement for consideration of past criminal activity.45
  3. 10.40 In practice it appears that the past criminal activity of a VOCAT applicant is closely scrutinised.46 This is significant for victims of family violence, as research indicates a connection between family violence victimisation and criminal activity.47 In particular, the Royal Commission found that a substantial majority of Victorian female criminal offenders had experienced family violence.48
  4. 10.41 The nexus between victimisation and criminal activity in the family violence context has been attributed to the social and economic disadvantages experienced by family violence victims. However, this nexus may also be a result of the coercive behaviour exercised by an abusive partner which can lead to forced criminal behaviour.49 In addition, as emphasised by the Royal Commission, there is a connection between children who experience family violence and offending later in life, either as an adolescent or adult.50
  5. 10.42 The past criminal activity of applicants has also been the subject of judicial consideration and is explored further below, noting not all of the cases involve circumstances of family violence.
  6. 10.43 In RUM v Victims of Crime Assistance Tribunal,51 VCAT considered the fact that the applicant was a serious sex offender, lacking remorse and insight in relation to his offending. In determining not to award financial assistance, VCAT held that the objectives of the Act ‘require consideration of whether an applicant is an appropriate recipient of a symbolic expression by the state of the community’s sympathy’.52 Similarly, in TNX v Victims of Crime Assistance Tribunal,53 VCAT considered the applicant’s prior convictions for causing serious injuries, failing to render assistance and the limited remorse shown by the applicant. Taking into account all those circumstances, VCAT determined it was appropriate to reduce the special financial assistance available from $10,000 to $8500.54
  7. 10.44 These decisions by VCAT demonstrate that a victim’s eligibility for financial assistance is not solely based on the act of violence. Broad discretionary factors, including community expectations—that is, whether a victim is an appropriate recipient of ‘sympathy’ by the community—will inform decision making. Some academics have also suggested that victims must demonstrate they are exhibiting behaviours typically associated with ‘responsible citizenship’.55
  8. 10.45 In Rajah v Victims of Crime Assistance Tribunal,56 VCAT accepted that the applicant was a victim of sexual and physical abuse by her mother’s former partner from three years of age. The applicant later abused drugs and had a significant criminal record, mostly related to her abuse of drugs and alcohol. Despite this criminal record, VCAT determined that the applicant’s criminal history should not preclude her from receiving financial assistance:

I accept that the applicant was a victim of assaults, sexual and otherwise in early years and that, in all probability, the sexual assaults have resulted in her subsequent dysfunctional behaviour which has exhibited itself in the forms of drug and alcohol abuse and related criminal activities.57

  1. 10.46 The decision in Rajah v Victims of Crime Assistance Tribunal indicates that in some cases an applicant’s past criminal behaviour may be viewed within a broader context of disadvantage and family violence victimisation.
  2. 10.47 However, in MK v Victims of Crime Assistance Tribunal,58 VCAT declined to award the applicant special financial assistance because she had failed to report to Centrelink that she was in a de facto relationship with her partner, whom she reported was abusive. The applicant’s financial instability was described by the applicant as part of the perpetrator’s abuse:

MK said that at the time she had no real alternative but to continue to live in the home … She said the partner was blackmailing her in the sense that she was in receipt of the disability pension and had not advised Centrelink she was in a de facto relationship. According to her, the Partner threatened to report her, saying that given her previous convictions, she could go to prison.59

  1. 10.48 The applicant’s decision not to report the de facto relationship to Centrelink were looked upon unfavourably by VCAT under section 54 considerations, notwithstanding her vulnerability, financial insecurity and the alleged abusive relationship.

‘Provocation’ and condition or disposition of the applicant which may have contributed to injury

  1. 10.49 In determining whether to award financial assistance or the amount to award, section 54 of the Act requires VOCAT to consider whether the applicant provoked the act of violence and if so, the extent to which the act of violence was in proportion to that provocation.60 Section 54 of the Act also requires VOCAT to consider any condition or disposition of the

    applicant which directly or indirectly contributed to his or her injury or death.61 These are sometimes referred to as ‘contributory conduct’ or ‘provocation’ clauses.62
  2. 10.50 ‘Contributory conduct’ clauses such as those included in section 54 of the Act have been criticised by academics as inviting ‘victim blaming’. In particular, in family violence cases, defensive actions by victims can sometimes be misconstrued as ‘provocation’ or ‘contributing to injury’.63
  3. 10.51 A demonstration of the applicability of these provisions can be found in the non-family violence case of Fallon v Victims of Crime Assistance Tribunal,64 where VCAT affirmed VOCAT’s decision to deny the applicant assistance due to provocation:

There is no doubt in my mind that the inflammatory words uttered by Ms Fallon set in motion the chain of events … There was no need for her to … address her in such an aggressive and abusive manner. In my view she invited retaliation. Her behaviour was provocative and entirely out of proportion with the circumstances.65

  1. 10.52 In Mendez v Victims of Crime Assistance Tribunal,66 which did involve family violence, VOCAT and VCAT took different views of the victim’s role in allegedly provoking the act.
  2. 10.53 VOCAT relied on the applicant’s alleged role in ‘starting the fight’ when interpreting contribution under section 54 of the Act.67
  3. 10.54 On appeal, the applicant’s legal counsel submitted that she did not provoke the assault by her then boyfriend:

she did not start or provoke the fight that led to the assault. It started on the tram after her boyfriend, who was drunk, snatched her wallet and took some money from it. When he refused to return the money, she tried to get it back. There ensued a heated verbal argument which became physical, in which he kicked and punched her and she hit him while trying to defend herself.68

  1. 10.55 VCAT ultimately determined that although the applicant may have provoked the assault, it was outweighed by the actions of the perpetrator. VCAT made the following observations:

I consider that any provocation by Ms Mendez is outweighed by the role of her assailant in following her on more than one tram journey when she was trying to get away from him, in refusing to leave a tram when asked by her to do so, in taking money from her immediately prior to the assault, and in brutally retaliating when she attempted to wrest that money back from him. I note that the assailant was charged, inter alia, with intentionally causing serious injury, and that Ms Mendez was not charged with any offence arising from the incident.69

Whether perpetrator will benefit from award

  1. 10.56 Section 54 of the Act also provides that in determining whether to make an award or the amount of an award, VOCAT must consider whether the alleged perpetrator will benefit directly or indirectly from the award.70 The Act provides no guidance about what might be considered as a direct or indirect benefit to a perpetrator.
  2. 10.57 In its submission to the Commission’s reference in relation to victims of crime in the criminal trial process, the Australian Law Reform Commission submitted that victims’ compensation claims should not be excluded on the basis that the offender might benefit, as such provisions unfairly disadvantage victims of family violence.71
  3. 10.58 In the Australian Law Reform Commission and New South Wales Law Reform Commission report Family Violence—A National Legal Response: Final Report, the Commissions stated that exclusion in circumstances such as this ‘has the effect of excluding most victims of family violence—especially where the victim continues to reside with the offender—and fails to take into account the fact the compensation award may be used to leave the offender’.72
  4. 10.59 The ALRC indicated that other measures should be adopted to ensure offenders do not have access to victims’ compensation awards rather than restricting a victim’s access to financial assistance. This included legislative mechanisms to make payments on the basis of expenses incurred, which is already provided for under the Act in Victoria.
  5. 10.60 The Commission has not found VOCAT appeal decisions on this point. However, some stakeholders and academics have raised concerns. Meyering has stated that the section 54 relationship clauses disproportionately impact family violence victims, who for a variety of reasons may choose to remain with, or return to, their abusive partners.73 Concerns have also been raised about case precedence in the Northern Territory where the mere fact of cohabitation has been held to be sufficient to make an inference that an award would benefit a perpetrator, given such a relationship would be a ‘sharing relationship’.74
  6. 10.61 The Royal Commission was informed by the Magistrates’ and Children’s Court of Victoria that the requirements of sections 52, 53 and 54, including consideration of whether the perpetrator will benefit, are often relevant in family violence applications:

There are many examples of how these sections may become relevant. A victim may call 000 for police to attend at the time of an incident, but then be unwilling or unable to go on to make a formal police statement about the crime. She may make a formal statement, but later withdraw it. She may not support the police in their application for a full intervention order, with the result that only a “basic” order can be made to promote her safety. In cases where she has cooperated fully with investigating authorities and the perpetrator has been found guilty, she may nevertheless have reconciled with the offender; will he now benefit from an award?75

  1. 10.62 Similarly, in a submission to the Australian Law Reform Commission and New South Wales Law Reform joint report on family violence, Domestic Violence Victoria and others expressed concerns that excluding claims on the basis that the perpetrator may benefit fail to reflect the nature and dynamics of family violence, given financial circumstances are a critical factor in women’s decisions about whether to leave a violent relationship.76

Effect of VOCAT considerations under sections 52, 53 and 54

  1. 10.63 Sections 52, 53 and 54 of the Act require VOCAT to consider the ways a victim behaves before, during and after a crime. These sections require VOCAT to make judgments about a victim’s behaviour in:
  • their everyday life, including potential and/or past criminal activity and drug and alcohol use
  • choosing to report, or not report, an act of violence
  • choosing to provide assistance, or not provide assistance, to police and prosecution
  • maintaining contact with a perpetrator, or returning to a potentially abusive relationship or family violence situation.
  1. 10.64 The Magistrates’ and Children’s Court of Victoria have highlighted that the requirements of sections 52, 53 and 54 are often relevant in family violence VOCAT applications because of the power dynamics involved in family violence. The cycle of violence may involve numerous reconciliations before a relationship ends.77
  2. 10.65 The Royal Commission was informed of the complex circumstances in which a victim of family violence might involve investigatory or prosecutorial agencies in a family violence situation, only to later withdraw from the process or resume a relationship with the perpetrator.78 Even if a victim was to cooperate fully throughout a civil and criminal process, by the time an application is before VOCAT the victim may have reconciled with the offender and the offender may arguably benefit from an award of assistance. These circumstances are all directly relevant to the considerations of VOCAT required under sections 52, 53 and 54 of the Act.
  3. 10.66 Despite the additional factors specified in section 53 of the Act, and judicial consideration of these matters, concerns continue to be raised by advocacy organisations and academics that the reporting provisions unfairly disadvantage victims of family violence who, in general, are less likely to report to police.79Preliminary consultations undertaken by the Commission indicated that the terminology of these provisions, in particular that ‘[t]he Tribunal must refuse to make an award’ creates perceived barriers to VOCAT applications. That is, despite the discretion that may be exercised by VOCAT, the legislative drafting creates an assumption of refusal which influences a victim’s perception of whether their application will be granted, even if their actions may be ‘reasonable’ or the circumstances ‘special’.
  4. 10.67 The Commission also heard that some lawyers consider cases with ‘mandatory refusal’ issues to be untenable, even before VOCAT considers there are issues with an application. The question of how specific provisions of the Act might disproportionately impact victims of family violence is discussed in more detail below.

Mandatory refusal provisions under section 52 of the Act

Failure to recognise the nature and dynamics of family violence

  1. 10.68 The provisions relating to reporting an act of violence to police within a reasonable time, and providing reasonable assistance to an investigatory or prosecutorial body, fail to adequately acknowledge and reflect the nature and dynamics of family violence. These

    requirements disadvantage victims of family violence who are less likely to report to police due to fear, shame or economic dependency.80
  2. 10.69 It is also noted that the Royal Commission found that many incidents of family violence remain hidden.81 Research has estimated that less than half of family violence victims may make a report to police.82
  3. 10.70 Given under-reporting is a known characteristic of family violence, Forster considers that the reporting provisions in Australian law are:

another example of the schemes conceptualising crime as the random act of a stranger and failing to recognise the power dynamics that may prevent a domestic violence victim from reporting the crime … the[se] provisions disproportionately affect victims of family violence.83

  1. 10.71 Similarly, Meyering sees such reporting provisions as further penalising women for ‘what is ultimately a systemic failure in the community’s response to gender based violence’.84
  2. 10.72 Reasons for non-reporting of family violence are complex.85 For some communities, additional barriers are experienced. For example, VOCAT’s Koori List has encountered specific barriers to reporting:

some victims, particularly victims of family violence, would prefer to deal with issues ‘in-house’ rather than report them to the police. Sometimes victims will wait until the alleged offender has moved away, or died, before making an application for assistance to the Tribunal or complaint/report to the police. Sometimes these concerns will relate to the community’s historical experience of the criminal justice system and the impact that a potential sentence of imprisonment may have on a family member.86

  1. 10.73 The Royal Commission found that people from LGBTIQ communities are less likely to report because of actual or perceived discrimination and harassment.87 For women living with disability, additional barriers might relate to living environments, physical and financial independence and barriers to reports being believed.88 Australia’s National Research Organisation for Women’s Safety (ANROWS) states that many women with a disability lack the ability and access to report violence, as well as potentially being financially dependent on the perpetrator.89
  2. 10.74 The Commission heard during preliminary consultations that additional barriers to reporting exist for women living in rural and regional communities, as well as for Aboriginal women.
  3. 10.75 Key legal and victim support stakeholders have previously raised concerns about section 52, describing it as complex and problematic because of the lack of guidance about the factors the Tribunal must consider in making their determination.90 Some stakeholders
    have referred to the provisions in section 52 as a ‘barrier’ or ‘hurdle’ for family violence victims.91
  4. 10.76 The case law discussed above offers differing interpretations of what might be considered ‘reasonable’ in the context of family violence. In some cases, the circumstances of family violence gave rise to findings that the lack of reporting was reasonable given the circumstances. In other cases, such behaviour is considered ‘unreasonable’ but falls under special circumstances. Consequently, there is little available evidence indicating a nuanced, consistent approach to consideration of additional barriers to reporting for family violence victims. In addition, there appears little consideration of the different cohorts of family violence victims who encounter double disadvantage, such as women living in rural and regional communities, Aboriginal women, victims with a disability and people from LGBTIQ communities.
  5. 10.77 As discussed earlier in this chapter, the case law also indicates that refusing to cooperate with a criminal prosecution will be looked upon unfavourably by VOCAT. However, this characteristic is particularly relevant to the circumstances of family violence. Victims of family violence may not assist police or the prosecution because of their fear of the perpetrator or because they are still in a relationship with them or because they rely financially on the perpetrator.92

Lack of guidance in the Act regarding the dynamics of family violence

  1. 10.78 By requiring the Tribunal to consider whether the alleged offender is in a position of power, influence or trust, or whether the victim was threatened or intimidated by the alleged offender, section 53 of the Act provides VOCAT with some limited guidance applicable to the characteristics of family violence.93 However, family violence is not articulated as a specific factor VOCAT may have regard to in making these determinations.
  2. 10.79 Some academics have suggested that the additional considerations provided in section 53 go some way to reducing the subjectivity involved in determining an award, although they may not ‘go far enough to acknowledge the systemic barriers to women reporting violence to or cooperating with police’.94
  3. 10.80 Key legal and victim support stakeholders have raised similar concerns about these provisions giving rise to a lack of clarity about what VOCAT will consider under sections 52 and 53 of the Act.95
  4. 10.81 The Act does not provide guidance on recognising the unique characteristics of family violence, or direct VOCAT to have regard to these characteristics and dynamics. This means sections 52, 53 and 54 of the Act may be inconsistently interpreted and applied.
  5. 10.82 In some cases the circumstances of family violence are viewed as creating ‘reasonable’ responses by victims with respect to their delay in reporting or lack of assistance to police or prosecution. However, other cases find such responses ‘unreasonable’, but invoke the ‘special circumstances’ provision. While these differing approaches may not unfairly disadvantage individual victims of crime, they raise questions about how the Act conceptualises family violence.
  6. 10.83 Given the pervasiveness of family violence in the community, the lack of specific guidance in the Act with respect to family violence and how it should be judicially considered may lead to inconsistent and inappropriate outcomes.96 In particular, it could be argued that family violence is not a ‘special circumstance’—a fact acknowledged in Nichol v Victims of Crime Assistance Tribunal. In that case, the very ‘commonality’ of family violence led VCAT
    to determine that no special circumstances existed because the ‘narrative’ of domestic violence was not out of the ordinary.97

Failure to acknowledge police and community attitudes to reports of family violence

  1. 10.84 In addition to failing to recognise the nature and dynamics of family violence, the Act may also fail to account for police and broader community attitudes to family violence and the way in which these attitudes might affect reporting rates.
  2. 10.85 For some victims, family violence offences may have occurred years ago, when police and prosecutorial bodies did not respond to family violence as a crime. The Royal Commission was told that prior to around 2001, police and the broader community responded to family violence as a private matter.98 Family violence was ignored or minimised. For those who were brave enough to report it, they were often dismissed or discouraged from pursuing the matter any further.99
  3. 10.86 The mandatory refusal provisions, in particular the police reporting requirement, may therefore not adequately recognise the fact that police attitudes to family violence can still be problematic. During the Royal Commission, Victoria Police acknowledged that responses to family violence can still be a ‘lottery’ for some victims.100 This is despite considerable efforts to change police and community culture.101
  4. 10.87 Furthermore, during preliminary consultations, the Commission heard that some women had attempted to report matters to police but had not been ‘allowed’ to make a report. This was particularly relevant for historical abuse or when family violence was no longer occurring. The Commission also heard that even where reports might be made to police, a report may not always be recorded as an incident. This then limits the documentation available for a VOCAT application, making applications more complex for lawyers to prepare and for VOCAT to assess.
  5. 10.88 Reporting is also affected by perceptions of justice. Victims who are not confident the system will deliver the kind of justice outcomes they seek may choose not to face the additional trauma, effort and risk of reporting.102

Considerations under section 54 of the Act

Victims’ character and behaviour

  1. 10.89 A victim’s character and behaviour are particularly scrutinised with respect to prior offending. For this reason, some victims with past criminal records may find it difficult to secure an award of financial assistance or an award may be reduced.103 The question is whether this unfairly disadvantages victims of family violence more than other victims of crime and if so, whether there should be any difference in the way a family violence victim’s character or behaviour is considered under the Act.
  2. 10.90 Research indicates there may be a strong link between family violence victimisation and criminal offending, particularly for female victims of family violence.104 In particular, Aboriginal women in prison have experienced high levels of victimisation:

Very often, women and children who have been victims of violence have self-medicated their mental health and trauma with drugs and alcohol which inevitably results in adding to the chaos of their lives and increases their contact with the criminal justice system.105

  1. 10.91 The Royal Commission has found that women might commit crimes as a result of experiencing family violence or under duress or coercion from a violent partner106 and that women in prison in Victoria have experienced family violence at much higher rates than women in the rest of the community.107
  2. 10.92 Given these findings, it is suggested that consideration of a victim’s character and behaviour under section 54 of the Act might have a disproportionately adverse impact for victims of family violence as compared to other victims of crime. VOCAT and VCAT findings appear to show differing considerations of character and behaviour in family violence contexts and as such, it is not clear whether a family violence ‘lens’ is applied to offending behaviour.

‘Contributory conduct’ provisions

  1. 10.93 The case of Mendez v Victims of Crime Assistance Tribunal discussed above illustrates the complexity of applying the contributory conduct provision under section 54 of the Act. In that case, the complexity was evident when the victim was considered by both VOCAT and VCAT to have ‘provoked’ the assault by her boyfriend, even though VCAT subsequently found that the actions of her boyfriend ‘outweighed’ her provocation.108
  2. 10.94 While the Commission has not found other case law indicating that victims of family violence are disproportionately disadvantaged under the section 54 contributory conduct provisions, some academics have raised concerns, noting the potential for ‘victim blaming’ particularly in the context of family violence.109
  3. 10.95 In this context it is noted that concerns about contributory conduct clauses were also raised by domestic violence advocacy organisations during a Western Australian review of family and domestic violence laws.110 However, the Law Reform Commission of Western Australia (LRCWA) was unable to find evidence that contributory conduct clauses disproportionately affected victims of family violence. Notwithstanding this lack of evidence, given the issues raised by advocacy organisations, the LRCWA recommended a review of how Western Australia’s compensation scheme affected victims of family and domestic violence.111
  4. 10.96 During preliminary consultations, the Commission heard that there may be circumstances where victims are charged with criminal offences as a result of defensive actions taken against perpetrators. The Royal Commission was told by key stakeholders that police sometimes inaccurately identify victims as ‘primary aggressors’ when attending family violence incidents, and that some women who use violence in self-defence are identified by police as the primary aggressor.112 Where a victim of intimate partner violence has retaliated against violence by her partner, police can sometimes arrest both parties, which

    ‘… vindicates [the perpetrator’s] story that they are both at fault, or that she “provoked” him’.113The Commission raises this issue as relevant to the character and conduct provisions under section 54 of the Act, as there may be circumstances where a victim of family violence applies to VOCAT for an award of assistance, but police records indicate ‘equal fault’ or ‘provocation’, based on police records.The potential impacts of these complexities and considerations under section 54 of the Act in family violence contexts merit further exploration.

Potential for perpetrator to benefit from award of assistance

  1. 10.97 A lack of financial security and economic resources may be barriers to leaving abusive relationships.114 A victim of family violence may be unable to leave a relationship without the financial assistance of a VOCAT award. However, at the time the application is assessed, the victim may still be residing with the perpetrator. This may raise issues of perpetrator benefit.
  2. 10.98 As noted earlier, the Commission is unable to determine whether the perpetrator benefit provisions are currently disproportionately affecting victims of family violence in Victoria. However, the Commission notes the academic and stakeholder concerns about these provisions, including those of the Magistrates’ Court of Victoria in its submission to the Royal Commission.115
  3. 10.99 Further examination of the practical interpretation of this provision is required. Further exploration is also required of how this might be determined by VOCAT. For example, if a victim of family violence has reconciled and is living with a perpetrator of family violence who is undertaking a court-mandated men’s behaviour change program,116 would an award be refused or reduced by virtue of their shared living arrangements and shared finances? And if so, is this appropriate given the purposes and objectives of the Act?

Experiences in other jurisdictions

Report to police within a reasonable time

  1. 10.100 Most Australian state and territory financial assistance schemes for victims of crime require a victim to report to police within a ‘reasonable time’.117 Aside from the evidentiary benefits for supporting compensation or financial assistance claims, such provisions also encourage victims to come forward to enable the state to prosecute offences.118
  2. 10.101 As in Victoria, other state and territory legislative frameworks allow the relevant decision-making body to consider factors that may have resulted in failure to report within a reasonable time. For example, the Northern Territory provisions are similar to those in Victoria.119 In South Australia the court cannot make a compensation order if the applicant failed to report the offence ‘without good reason’.120
  3. 10.102 However, in New South Wales, Queensland and the Australian Capital Territory, an act of violence can be reported to other professionals, including government agencies and health professionals such as a counsellor, psychologist or doctor in certain circumstances.121 Furthermore, in 2017, the Queensland Parliament passed an amendment to its legislation which will explicitly extend its alternative reporting provision to victims of domestic violence and recognise victims who report the violence to ‘domestic violence services’.122

Requirement to assist police

  1. 10.103 As already noted, most Australian state and territory schemes require victims to assist police and prosecution. However, unlike Victoria, where a victim must establish ‘special circumstances’ if they have not provided reasonable assistance, Queensland has recently amended its victims’ of crime assistance legislation to enable the government assessor to have regard to whether the act of violence involves domestic violence.123 This will make Queensland the only jurisdiction where domestic violence is an explicit consideration in determining whether a victim reasonably assisted police and prosecution.

Contributory conduct and character of victim

  1. 10.104 In all Australian jurisdictions, there is some form of ‘contributory conduct’ clause in the relevant legislation.124 Broadly, all states and territories examine the victim’s conduct before and at the time of the act of violence and consider whether their conduct may have contributed to their injuries or whether they took steps to mitigate the extent of their injuries.125
  2. 10.105 The United Kingdom has a more prescriptive approach than in Australian states and territories, refusing awards or reducing awards where applicants have an unspent conviction, calculated on a sliding scale. For example, a 10 per cent reduction is applied for unspent convictions of one penalty point, moving up to a 100 per cent reduction for unspent convictions of 10 penalty points.126

Discussion and options for reform

More certainty and equity for victims of family violence

  1. 10.106 Women’s Legal Service Victoria has submitted there is inconsistency in decision making in VOCAT on family violence matters, causing victims of family violence to feel confused and traumatised by the legal system.127
  2. 10.107 The Commission’s previous report in relation to victims of crime highlighted stakeholder proposals for section 52 to be amended to list family violence as a relevant factor to which VOCAT could have regard in exercising its discretion.128 In particular, Victoria Legal Aid has suggested that section 52 should explicitly require consideration of the nature of the relationship between the victim and offender. Women’s Legal Service Victoria suggested that the phrase ‘special circumstances’ should be expressly defined in section 52 to recognise family violence.
  3. 10.108 Similarly, the Magistrates’ Court and Children’s Court in their submission to the Royal Commission recommended that family violence be included as a relevant factor to be considered under sections 52, 53 and 54: ‘This would clearly direct Tribunal members to the importance of considering any relevant family violence matters in the exercise of their discretion.’129
  4. 10.109 In contrast, some academics have suggested that victims of family violence should not be required to report offences to police at all,130 while some advocates suggest that all that should be required in such cases is a finding on the balance of probabilities that a crime occurred.131

Recognising family violence under sections 52, 53 and 54

  1. 10.110 As the above discussion indicates, the Act provides little legislative guidance to enable VOCAT to exercise discretion in a consistent way when considering factors under sections 52, 53 and 54 with respect to victims of family violence.
  2. 10.111 Recognising family violence for the purposes of sections 52, 53 and 54 under the Act could be achieved in different ways.
  3. 10.112 Legislative amendment could involve creating an overarching provision which enables, or requires, VOCAT to consider the nature and dynamics of family violence when making a determination under sections 52, 53 and 54 of the Act. Alternatively, family violence matters could be exempted entirely from the mandatory refusal requirements under section 52 and from some, or all, of the section 54 considerations.
  4. 10.113 Another option is for the Act to be amended to explicitly require consideration of family violence when determining what is ‘reasonable’ as a subsection of section 52. This is the approach taken most recently in Queensland with respect to whether a victim has provided reasonable assistance to police or prosecution. The Act could also be amended to require VOCAT to have regard to family violence in considering whether there are special circumstances for the purposes of section 52.
  5. 10.114 The Act could also be amended to include family violence specifically in the circumstances VOCAT may have regard to under section 53. Consideration could also be given to extending the application of section 53 to consideration of whether the applicant provided reasonable assistance to police and prosecution under section 52(a)(ii).
  6. 10.115 An additional option is to amend section 52(a) to enable victims of family violence to report the act of violence to other bodies or agencies. This could be instead of, or in addition to, reporting to police. In this context, consideration could be given to recognising reports made to other identified people such as counsellors, support workers or other health professionals.132
  7. 10.116 Alternative reporting mechanisms exist in New South Wales, the Australian Capital Territory and Queensland in certain circumstances, such as where victims are considered a ‘special class’ of victim.133
  8. 10.117 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether sections 52, 53 or 54 of the Act should be amended to recognise family violence more explicitly and if so, how this might be achieved. Specific questions for consideration are set out below.

 

Questions

Mandatory refusal

  1. 26 Should the requirement to report incidents to police be explicitly excluded for victims of family violence?
  2. 27 Alternatively, should the police reporting requirement be amended to recognise reports made by victims of family violence to other persons? If so, what other reporting should be recognised?
  3. 28 Should the requirement to provide reasonable assistance to police and prosecution be explicitly excluded for victims of family violence?
  4. 29 If the police reporting requirement is to be retained for family violence victims, should family violence also be specified as a matter the Tribunal may consider in determining whether a report was made to police within a reasonable time? If so, how should this be reflected in the Act?
  5. 30 If the reasonable assistance requirement is to be retained for family violence victims, should family violence also be specified as a matter the Tribunal may consider? If so, how should this be reflected in the Act?

Is family violence a ‘special circumstance’?

  1. 31 Should family violence be expressly considered ‘special circumstances’ for the purpose of the mandatory refusal provisions? If so, how should family violence be treated?

Section 54 considerations

  1. 32 What are the effects of the section 54 considerations for victims of family violence? Do these factors result in awards to family violence victims not being made or being reduced disproportionately compared to other victims of crime?
  2. 33 Should some, or all, of the section 54 considerations be excluded for victims of family violence? If so, what considerations should be excluded?
  3. 34 Alternatively, should family violence be specified as a factor that VOCAT must have regard to in exercising its discretion under section 54 to make an award? If so, how should this be reflected in the Act?
  4. 35 How do the contributory conduct provisions under section 54 of the Act currently affect victims of family violence as compared to other victims of crime?
  5. 36 How do the perpetrator benefit provisions under section 54 of the Act currently affect victims of family violence as compared to other victims of crime?

 

Footnotes

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