15. Fulfilment of the purpose and objectives of the Act

 

Introduction

  1. 15.1 The purpose of the Victims of Crime Assistance Act 1996 (Vic) (the Act) is to provide assistance to victims of crime.1
  2. 15.2 Although not a matter expressly identified for the consideration of the Victorian Law Reform Commission (the Commission) in the terms of reference, the Commission considers that a review of the provision of state-funded financial assistance to victims of family violence under the Act requires examination of whether the Act is fulfilling its purpose and objectives as far as family violence victims are concerned.
  3. 15.3 Accordingly, this chapter discusses how the Act assists victims of family violence ‘to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred as a direct result of the crime’.2
  4. 15.4 The chapter also discusses when and how the Act pays victims of family violence ‘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’.3
  5. 15.5 Finally, this chapter considers whether the Act allows victims of family violence to have recourse to financial assistance where compensation for their injury cannot be obtained from the offender or other sources,4 and the extent to which the Act complements other services provided by the state to victims of crime.5
  6. 15.6 In considering whether the Act’s purpose and objectives are realised for family violence victims, the Commission revisits some of the issues outlined in Part Two of this paper. It does this with the following question in mind: if issues encountered under the Act disproportionately impact victims of family violence, are the aims and objectives of the Act as currently articulated, able to be realised for victims of family violence?
  7. 15.7 Finally, this chapter then raises issues and poses questions for stakeholder consideration.

Assisting victims to recover from crime

  1. 15.8 The first stated objective of the Act is to ‘assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime’.6
  2. 15.9 Part One of this consultation paper discussed the practical and symbolic benefits of state-funded financial assistance under the Act for family violence victims. These benefits reflect the purpose and objectives of the Act.
  3. 15.10 The importance of access to state-funded financial assistance for victims of family violence has been widely recognised. The Australian Law Reform Commission and New South Wales Law Reform Commission identified victim compensation and financial assistance schemes as the principal method of financial redress for most victims of family violence.7
  4. 15.11 Australia’s National Research Organisation for Women’s Safety has noted that the unique circumstances of family violence victims increase their reliance on financial assistance to assist with overcoming costs associated with escaping abuse such as relocation, loss of employment or legal costs associated with ending a relationship.8 Such financial disadvantage can occur even when family violence is physical or psychological in nature and there are no elements of financial or economic abuse.
  5. 15.12 Economic and financial security is key to a family violence victim’s recovery from crime.9 However, Women’s Legal Service Victoria has stated that for the Act to genuinely assist victims to recover from family violence, extensive reform is required.10
  6. 15.13 Some of the issues encountered by family violence victims relating to specific aspects of the Act’s operation were discussed in Part Two of this paper. In considering the broader question of whether the Act assists family violence victims to recover from crime, some of these matters are re-examined in this chapter.

Eligibility

  1. 15.14 Fundamentally, it may be difficult for the Act to assist family violence victims to recover from crime when such victims are so often ineligible for awards of assistance. The issue of eligibility, including some options for reform, was discussed at Chapter 6.
  2. 15.15 The definition of an ‘act of violence’ is a key barrier facing victims of family violence in accessing awards under the Act. Indeed, it is one of the fundamental barriers to the achievement of the Act’s key objective, which is to assist victims in their recovery from crime.11 The requirement for certain ‘criminal acts’ limits access to the scheme to victims who have experienced physical violence, sexual violence, threat of injury or stalking.12
  3. 15.16 The definition of an ‘act of violence’ under the Act is also narrower than the definition of ‘family violence’ under the Family Violence Protection Act 2008 (Vic).13 Victims of non-criminal forms of family violence, such as economic abuse, emotional and psychological abuse, property damage, intimidation and harassment are therefore excluded from the scheme established under the Act. Furthermore, due to the narrow definition of an ‘act of violence’, children who experience family violence by hearing, witnessing or otherwise being exposed to the effects of it, are not recognised as primary victims under the Act.
  4. 15.17 Even where a ‘criminal act’ constitutes an ‘act of violence’ under the Act, victims of family violence can confront difficulties proving that an offence occurred,14 and that they have suffered ‘injury’ as a result.15 During preliminary consultations the Commission heard that proving an offence occurred is complicated by the fact that victims of family violence may not report matters until long after an injury has occurred, and that they may encounter barriers to reporting or may be unable to produce evidence of the injury.
  5. 15.18 Without a broader definition of violence, more like the definition of family violence under the Family Violence Protection Act 2008 (Vic), it may be difficult for the Act to meaningfully assist the majority of family violence victims to recover from crime. This is because the Act’s applicability is limited.

Assistance available

  1. 15.19 As discussed in Chapter 7, even where eligibility issues are overcome by victims of family violence, they can be disadvantaged by the quantum generally awarded in family violence matters.
  2. 15.20 The Act provides that a series of acts can be considered a single criminal act if they ‘occurred over a period of time and were committed by the same person or group of persons.’16 This provision can disproportionately reduce the awards received by victims of family violence17 because ‘Domestic violence, almost by definition, will involve repeated acts of abuse by the same offender’.18
  3. 15.21 As the Magistrates’ Court and Children’s Court of Victoria submitted to the Victorian Royal Commission into Family Violence (the Royal Commission), 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’.19
  4. 15.22 Similarly, the special financial assistance categories ‘[do] not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.20 This is because the relevant categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.21
  5. 15.23 A family violence victim’s recovery is likely to be adversely impacted by a process that does not recognise or account for the different impacts of persistent violence. Without recognition of the cumulative effect of a pattern of abuse, the Act may be limited in its ability to truly assist these victims to recover.
  6. 15.24 Some child victims of family violence are also unable to access special financial assistance because they are not recognised as primary victims under the Act. In addition, even where child victims are eligible for special financial assistance, the categories do not acknowledge the long-term and far-reaching consequences of experiencing family violence as a child.

Time limits

  1. 15.25 An application for assistance must be made within two years after the act of violence occurred.22 The Royal Commission found that the time limit is a barrier for victims of family violence.23
  2. 15.26 Family violence disclosures can, and often do, take time. Even where disclosure occurs quickly, it can take time to regain enough stability to even consider making an application to the Victims of Crime Assistance Tribunal (VOCAT).24 Disclosure is even harder for child victims and therefore, the VOCAT time limits are more challenging for such victims.
  3. 15.27 The fact that it may take a victim of family violence longer to lodge an application for assistance with VOCAT means that the time limit can have a disproportionate impact on them compared to other victims of crime.25 Even though VOCAT may grant applications for an extension of time, the existence of a time limit may be a disincentive for some victims of family violence.
  4. 15.28 Moreover, given that the time limit may operate to make victims of family violence start the process before they are ready, this alone can be re-traumatising.

Perpetrator notification and appearance provisions

  1. 15.29 During preliminary consultations, the Commission heard that the fact that a perpetrator is entitled to appear is a barrier, as it is enough to cause some victims of family violence to elect not to submit a VOCAT application.
  2. 15.30 These perpetrator notification provisions are particularly problematic. In a family violence context, where recovery from crime might involve preventing contact with a perpetrator, requiring a victim to see this person in a court-like atmosphere is the opposite of what they need. The potential benefits of financial assistance may be outweighed by the negative effects of the potential for contact with the perpetrator, or actual contact during a VOCAT hearing.

Mandatory refusal and victim character and behaviour

  1. 15.31 Requiring a victim to report family violence to police, as well as provide assistance to police and prosecution, may also not assist family violence victims to recover from crime. Reporting family violence to police can sometimes re-traumatise victims as police may not always respond in a way that validates a victim’s experience. Reporting to police may also cause a victim to fear reprisals from the perpetrator. These issues can impact on the recovery of a victim.
  2. 15.32 During preliminary consultations, the Commission heard that such requirements limit the ability of VOCAT to be victim-centred in its approach and limit the ability of victims to recover from the effects of crime. However, the Commission also heard that in considering the rights of victims, VOCAT also has to consider the rights of perpetrators and ensure due process.

Timeliness of awards

  1. 15.33 Another key barrier to VOCAT being able to assist victims of family violence to recover from crime is the legal process that can result in delays in financial assistance, in contrast to other support programs or financial assistance which can be provided more immediately and holistically. In preliminary consultations, the Commission heard that for family violence victims, VOCAT awards simply take too long.
  2. 15.34 The delays victims of family violence experience in accessing financial assistance under the Act may therefore significantly affect their ability to begin recovering from the crime.

Variation process

  1. 15.35 Preliminary consultations indicated that the process of variation is not always smooth or easy for victims of family violence. This is particularly the case where variations are sought for the purposes of awards relating to additional counselling sessions. Most variations in family violence matters relate to additional counselling.
  2. 15.36 It was suggested to the Commission that it might be more practical and beneficial if practitioners were able to provide more counselling sessions at their discretion, rather than victims having to re-engage lawyers to ask for them.
  3. 15.37 During preliminary consultations the Commission was advised that these variation processes, which are required under the Act, are not ‘victim-centred’. Instead, they rely on victims continually engaging with a lawyer in order to ask for the help they need. This limits the extent to which the VOCAT framework may assist victims of family violence to recover from crime.

Symbolic payments to ‘certain victims of crime’ as recognition

  1. 15.38 The second stated objective of the Act is to ‘pay certain victims of crime financial assistance (including 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’.26
  2. 15.39 This part of the consultation paper examines two aspects of this objective. First, whether family violence victims are—or can be—’certain victims’ under the Act and secondly, whether the financial assistance available is an appropriate recognition of the significant adverse effects experienced of suffered by victims of family violence.

Are family violence victims ‘certain victims’ under the Act?

  1. 15.40 As outlined in Chapter 7, special financial assistance has four categories based on the severity of the act of violence. Each category has a minimum and maximum award amount which is prescribed in section 8A(5) of the Act:
  • Category A: offences involving sexual penetration and attempted murder. The maximum amount is $10,000 and the minimum is $4667.
  • 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. The maximum amount is $3250 and the minimum is $1300.
  • 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. The maximum amount is $1300 and the minimum is $650.
  • 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.27 The maximum amount is $650 and the minimum is $130.
  1. 15.41 During preliminary consultations the Commission heard that victims of family violence are sometimes determined to be ‘certain victims’ under the Act. However, they frequently fall into the lower special financial assistance categories of C and D, even after long periods of violence and abuse. The minimum amount in these circumstances is $130. The maximum amount is $1300.28
  2. 15.42 In this context, a key issue raised in the Royal Commission was that the special financial assistance categories do ‘not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.29


    This is because the relevant categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.30
  3. 15.43 The Royal Commission 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’.31

Is the financial assistance available an appropriate recognition of family violence?

  1. 15.44 Noting it is beyond the terms of reference to consider the total financial assistance currently available, the Commission’s preliminary research and consultations indicate that payments of special financial assistance in family violence matters are not currently recognised by many stakeholders as an appropriate symbolic expression by the state of the community’s sympathy, condolence for, and recognition of, the significant adverse effects of family violence.
  2. 15.45 During preliminary consultations, some stakeholders commented on the significant government investment in family violence since the Royal Commission. Stakeholders felt that this demonstrates a broader cultural shift and community acknowledgment of the harms of family violence to both individuals and the community. However, these stakeholders also felt that the current VOCAT awards are too small to adequately reflect community expectations.
  3. 15.46 Moreover, the Commission was advised that because payments are so low in family violence matters, some support workers will advise clients that the process is not worth it. For some victims, the fact that they are effectively ‘locked out’ of higher categories of award might be enough of a disincentive to put them off the application process. These perceptions impact the VOCAT ‘take up’ rate in family violence matters.
  4. 15.47 Given the limitations on special financial assistance encountered by victims of family violence, it is not clear that the current categories of award are providing the level of acknowledgment and recognition that might be expected. In addition, it is suggested that the provision of financial assistance is not timely or substantial enough to enable a victim to escape the cycle of violence.
  5. 15.48 Therefore, preliminary consultations and research conducted by the Commission indicate this objective of the Act is not being realised for victims of family violence.

Recourse to financial assistance where compensation unavailable from other sources

Is VOCAT available when compensation is unavailable from other sources?

  1. 15.49 The third stated objective of the Act is to allow victims to have recourse to financial assistance where compensation for the injury cannot be obtained from the offender or other sources.32
  2. 15.50 Based on the research and preliminary consultation undertaken by the Commission, and the previous inquiries, a range of structural, legislative, procedural and perceived barriers limit VOCAT as an appropriate avenue for financial assistance for many family violence


    victims. As discussed further below, given the fact that victims of family violence may be unable to access compensation from any other source, the extent to which the third objective of the Act is realised meaningfully for victims of family violence may be limited.
  3. 15.51 Issues encountered by the Commission during preliminary consultations and through preliminary research raise questions regarding the appropriateness of the legislative provisions themselves, and the extent to which they acknowledge the nature and dynamics of family violence. In particular, questions arise regarding the ability of the service system and legal practitioners to adequately support victims through the VOCAT process, as well as perceived barriers to the scheme and lack of knowledge of assistance available.

Assumption that other compensation is available

  1. 15.52 The Act is intended to provide assistance for victims of crime where compensation for their injury cannot be obtained from the offender or other sources.33 In support of this objective, the Act therefore expressly provides that where compensation is also obtained from the perpetrator, the person must refund the award.34 However, where compensation is obtained from another source, the Tribunal has a discretion whether or not to require refund of the award.35
  2. 15.53 Underlying this objective is the notion that ‘the offender or other state-funded compensation schemes are primarily responsible for compensation of victims’.36 Indeed, this notion is reflected in the Second Reading Speech to the Act as first enacted, which notes ‘wherever practicable convicted offenders [should] make good the harms caused by their crimes by paying compensation for pain and suffering to the victim as assessed by the courts’.37
  3. 15.54 In practice, and as noted earlier, VOCAT has often been the only source of compensation for family violence victims, rather than being a ‘supplement’ to other forms of compensation,38 although the availability of flexible support packages means it may no longer be the only avenue of financial assistance. Yet the Act presumes that compensation is available from the offender or other sources. This is particularly problematic for victims of family violence for whom it is often impractical or unsafe to pursue other avenues of compensation.

Complementing other government services

  1. 15.55 As expressly noted in the Act, the intention of the Act is to ‘complement other services provided by government to victims of crime’.39
  2. 15.56 However, the extent to which the Act and VOCAT complement other government services raises questions about the extent to which victims of family violence are required to seek information, support and assistance from different services and agencies which are not linked or able to share information effectively.
  3. 15.57 Government services for victims of crime and, more specifically, family violence victims, aim to be ‘victim-centred’.40 However, research indicates that VOCAT is not easy to access or navigate for victims of family violence. Women’s Legal Service Victoria has found that victims of family violence must go to numerous different places to get answers about financial issues arising from family violence. Services are also often fragmented and difficult to navigate for those with little time and few resources. Victims may have to retell their stories over and over.41
  4. 15.58 This issue was raised during the Royal Commission and addressed by its Recommendation 37, that support and safety hubs be established.42 Support and safety hubs envisage dealing with a single ‘hub’ to access a range of information and support, rather than having to seek information and support via multiple avenues. Linkages between victims, victim and family violence support services and the justice system, including VOCAT, are also expected to improve once support and safety hubs are established.43
  5. 15.59 Preliminary consultation and research conducted by the Commission also indicated some anomalies in the financial assistance available to victims of family violence if a victim accesses different support services or financial assistance mechanisms.
  6. 15.60 For example, a victim of family violence may approach a specialist family violence service wishing to urgently relocate after leaving an abusive relationship. She may be urgently assessed and a case management plan developed by a specialist family violence worker. This worker may apply for a family violence flexible support package for bond and rent for a new rental property, purchasing whitegoods and installing a security system. Funding of a few thousand dollars may be provided within a number of weeks.
  7. 15.61 In contrast, a victim in the same circumstances might approach a solicitor for assistance to lodge a VOCAT application. She might then be told that as she has not made a report to police, she is unlikely to be eligible under the Act. She might also be advised that even if she has reported to police, the process will take time and that she may be unlikely to receive assistance in enough time to use the money for urgent relocation costs.

Discussion and options for reform

Maximising recovery

  1. 15.62 Promoting ‘recovery’ is a common theme across other financial assistance and compensation schemes in Australian jurisdictions.44
  2. 15.63 Preliminary consultations and research conducted by the Commission indicated that access to VOCAT is challenging for many victims of family violence. This limits the extent to which the Act can provide assistance to victims of family violence as ‘victims of crime’.45
  3. 15.64 When the Act was introduced, the Second Reading Speech articulated a broad intent to develop a model more responsive to the needs of victims in order to ‘maximise the potential for a victim’s recovery from the psychological and physical effects of a violent offence’.46 The Second Reading Speech also described the Act as establishing ‘an integrated model of assistance [for] victims of crime’.47

What should a state-funded financial assistance scheme look like to help victims of family violence in their recovery?

  1. 15.65 Based on the research and preliminary consultation undertaken by the Commission, and the previous relevant inquiries referred to, there appears to be a range of barriers limiting VOCAT as an appropriate avenue for financial assistance for many family violence victims.
  2. 15.66 During preliminary consultations, the Commission was told that the legislative framework must empower victims of family violence and must send a message that family violence will not be tolerated. The Commission was told that family violence victims need to be at the centre of the process, and that the Act needs to mirror government and community expectations with respect to family violence.
  3. 15.67 The Commission also heard that VOCAT needs to operate more effectively and efficiently as part of the broader victim and family violence service system. Some felt that VOCAT’s greatest potential benefit for victims of family violence was when it can be used as a ‘re-establishment fund’—that is, to provide financial assistance that will help a victim recover from crime by helping them re-establish their life.
  4. 15.68 Stakeholder input during preliminary consultations suggests that, in order to be a state-funded financial assistance scheme that maximises victim recovery in the context of family violence, the Act requires:
  • recognition of a broader definition of family violence beyond the notion of a single ‘act of violence’ and potentially incorporating non-violent forms of abuse
  • recognition of the cumulative harm of persistent and protracted family violence
  • acknowledgment of the difficulties faced by family violence victims in reporting to police, assisting prosecution and applying for assistance, without applying prescriptive time frames
  • prioritisation of a victim’s safety and wellbeing, and a trauma-informed approach
  • more timely access to financial assistance at the point of crisis and better integration with existing supports
  • more flexibility and adaptability as circumstances change, without further burdening victims with having to continue to access lawyers in order to obtain support such as counselling.
  1. 15.69 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on how the Act could maximise victim recovery in the context of family violence and what changes would need to be made to the Act. Specific questions are set out below.

Questions

  1. 61 The purpose of the Act is to ‘provide assistance to victims of crime’. Is this purpose realised for victims of family violence, including child victims? If not, why not?
  2. 62 If the purpose of the Act is not being realised for victims of family violence, including for child victims, how should this be done?
  3. 63 Should the purpose and objectives of the Act be amended to expressly recognise family violence? If yes, how should this be done?
  4. 64 The Act states that ‘certain victims of crime’ should be awarded financial assistance as a symbolic expression by the state. Are family violence victims, including child victims, adequately covered by the current special financial assistance provisions? If not, how should this be done?
  5. 65 The Act aims to complement other services provided by government to victims of crime. Is this achieved for family violence victims? If not, how should this be done?
  6. 66 In assessing any proposals for change, what criteria and considerations should the Commission have regard to? How should the experience of family violence victims, including child victims, be taken into account?

 

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