8. Making a VOCAT award to victims of crime

 

Introduction

  1. 8.1 This chapter outlines the circumstances in which the Victims of Crime Assistance Tribunal (VOCAT) may make an award for financial assistance under sections 52, 53 and 54 of the Victims of Crime Assistance Act 1996 (Vic) (the Act).
  2. 8.2 This includes consideration of the circumstances in which VOCAT may refuse to make an award of assistance,1 as well as matters VOCAT must have regard to in determining whether or not to make an award, or how much to award.2
  3. 8.3 This chapter relates to issues raised in the first, second and fourth matters in the supplementary terms of reference which concern:
  • whether the Act can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support
  • whether the Act recognises the appropriate people as victims
  • whether the structure and timing of awards are appropriate and are adequate to account for harm where there is a significant delay in reporting a crime.
  1. 8.4 As will be discussed in this chapter, the effect of sections 52, 53 and 54 of the Act require VOCAT to assess a victim’s behaviour in:
  • reporting, or not reporting, or making a delayed report, of an act of violence
  • providing assistance, or not providing assistance, to police and prosecution
  • their everyday life, including potential and/or past criminal activity and/or drug and alcohol use
  • maintaining contact with a perpetrator, including where the perpetrator may be an intimate partner, friend or family member.
  1. 8.5 Questions posed in this chapter relate both to the extent to which the current provisions are clear and working as intended, as well as whether the policy rationale underpinning these provisions is still justifiable. 

When can an award be made?

  1. 8.6 VOCAT may award financial assistance to a victim of crime where it is satisfied that an act of violence has occurred, that the applicant is a victim of that act of violence, and that the applicant is eligible to receive the assistance.3 The Act does not require someone to have been charged with or convicted of an offence for an award to be made.4
  2. 8.7 However, even if VOCAT determines that a victim is eligible for an award, section 52 of the Act requires that in some circumstances VOCAT must nevertheless refuse to make an award of assistance.
  3. 8.8 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 specified factors which may reduce an award amount or result in an award not being made at all.
  4. 8.9 In practice, the effect of sections 52 and 54 of the Act is that VOCAT must consider a victim’s character and behaviour before, during and after a crime. These considerations are broad and may be unrelated to the act of violence itself.
  5. 8.10 The Magistrates’ Court of Victoria has stated that these provisions in the Act allow VOCAT to balance competing factors when making a decision about financial assistance.5 For example, they enable VOCAT to refuse to make an award where it would be inconsistent with the purpose and objectives of the Act, such as denying special financial assistance to applicants who have been convicted of violent crimes, as they may not be considered appropriate recipients of a symbolic expression by the state of the community’s sympathy.6
  6. 8.11 However, such considerations can also operate to unfairly limit some victims from accessing awards under the Act. These issues are discussed further below.

Mandatory refusal of an award under section 52 of the Act

  1. 8.12 VOCAT figures indicate that for 2015­–16, 105 applications were refused, comprising almost two per cent of all applications to VOCAT.7
  2. 8.13 Under section 52 of the Act there are two circumstances where VOCAT must 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.8
  1. 8.14 These mandatory refusal provisions have not been raised as problematic, either in literature, case law or during preliminary consultations conducted by the Commission.
  2. 8.15 However, under section 52 of the Act, there are two further circumstances where VOCAT must refuse to make an award of assistance, unless there are ‘special circumstances’. These are if VOCAT is satisfied that:
  • an act of violence was not reported to police within a reasonable time
  • 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).9
  1. 8.16 Section 52 of the Act therefore provides an exception to mandatory refusal where VOCAT considers that there are special circumstances resulting in either a failure to report to police within reasonable time, or a failure to provide reasonable assistance to police or the prosecution.

Act of violence not reported to police within a reasonable time

  1. 8.17 In determining whether an act of violence was reported to police within a reasonable time for the purposes of section 52(a)(i) of the Act, section 53 provides that VOCAT ‘may have regard to any matters that it considers relevant’ including:
  • 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.10
  1. 8.18 The case law varies in its interpretation of what constitutes a ‘reasonable time’ for reporting, as well as what might result in special circumstances mitigating an ‘unreasonable’ delay.
  2. 8.19 For example, in J v Victims of Crime Assistance Tribunal,11 the Victorian Civil and Administrative Tribunal (VCAT) held that a delay of approximately 35 years in reporting alleged sexual abuse to police was reasonable given the circumstances of the 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.’12
  3. 8.20 In contrast, a narrower interpretation is found in S v Victims of Crime Assistance Tribunal13 where 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. VCAT determined the applicant had not reported the alleged rape to police within a reasonable time 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.14 The victim was 17 years old at the time of the alleged offence.
  4. 8.21 Where VOCAT determines that a report was not made to police within a reasonable time, section 52 of the Act enables VOCAT to consider any special circumstances that may have brought about that delay.
  5. 8.22 The phrase ‘special circumstances’ is not defined in the Act. However VCAT has found that for the purposes of section 52, special circumstances must be something ‘out of the ordinary’.15
  6. 8.23 In cases of child sexual abuse, a victim’s age at the time of the offence has previously been interpreted as constituting special circumstances mitigating an ‘unreasonable’ delay in reporting to police.16 However, for some other types of victim, the circumstances that may give rise to a finding of special circumstances is less clear.
  7. 8.24 For example, in TUN v Victims of Crime Assistance Tribunal,17 VOCAT refused an application for assistance on the basis of section 52(a)(i), 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. While VCAT did overturn VOCAT’s decision and find that special circumstances existed, VCAT distinguished the applicant’s experience from ‘others faced with domestic violence’, indicating special circumstances only existed in that case because of the criminal profile of the applicant’s former partner, who was a member of a motorcycle gang with seven convictions for manslaughter.
  8. 8.25 The case law precedent necessitating that something be ‘out of the ordinary’18 for it to constitute special circumstances can also be problematic for crimes that may be ‘common’, but because of their unique dynamics and characteristics, create additional barriers to reporting, such as victims of family violence and sexual assault.
  9. 8.26 In TUN v Victims of Crime Assistance Tribunal,19 VOCAT considered the circumstances of family violence did not constitute special circumstances because such factors ‘were nothing out of the ordinary or special; it was common for such victims to fear reprisals’.20
  10. 8.27 Further complicating considerations under section 52(a)(i) are circumstances that raise questions of whether the act of violence was in fact ‘reported’ to police, for example where police may have been told about an incident or attended the scene but no official police record was made.
  11. 8.28 An example of this can be seen in Haddara v Victims of Crime Assistance Tribunal21 where the victim’s brother made several attempts to report an assault to police, including visiting two different police stations within hours of his brother being assaulted on the street. The victim’s brother believed that in providing this information to police, they would contact his brother, who was in hospital as a result of the assault, to pursue the matter. After no such contact was made by police, the victim’s brother visited police for a third time. On each of these occasions, an official police report was not recorded.
  12. 8.29 Approximately 20 days later, the victim reported the matter to police. It was only at this point that the complaint was recorded on the police database, LEAP. Police advised the victim at this time that due to a lack of evidence, the matter could not proceed any further.
  13. 8.30 On appeal to VCAT, VOCAT submitted that the act of violence was not reported to police within reasonable time and also submitted that the victim failed to provide reasonable assistance to police. VCAT overturned VOCAT’s decision, observing that reporting to police three weeks after an incident appeared reasonable and concluding that for the purposes of section 52, the victim’s brother had reported the matter to police within reasonable time.22
  14. 8.31 In Sanders v Victims of Crime Assistance Tribunal, VCAT determined on appeal that the provision of details to police orally at the scene of an alleged assault was sufficient to constitute a report to police.23 VCAT also held that ‘what constitutes a report to police must depend on the circumstance of each particular case’.24
  15. 8.32 Therefore, both the legislation and case law provide limited guidance about what constitutes a report to police, and what circumstances will amount to making a report to police within a ‘reasonable time’.

Failure to provide reasonable assistance to an investigatory or prosecutorial body

  1. 8.33 Except where there are special circumstances, the failure to provide reasonable assistance to an investigatory or prosecutorial body requires VOCAT to refuse an application for financial assistance.25
  2. 8.34 However, unlike the ‘failure to report’ provisions, the Act does not provide any guidance about what VOCAT should have regard to in considering whether there are ‘special circumstances’.
  3. 8.35 In addition, under section 52(a)(ii) of the Act, there are no prescribed positive actions a victim must perform 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.26

  1. 8.36 In Rajah v Victims of Crime Assistance Tribunal,27 VCAT found the existence of special circumstances to mitigate what might otherwise be viewed as failure to assist the police—not providing a written statement to police. In that case, the applicant was a victim of sexual and physical abuse by her mother’s former de facto partner and the circumstances of the offending and the vulnerability of the victim were accepted as giving rise to special circumstances.28
  2. 8.37 In Nichol v Victims of Crime Assistance Tribunal,29 the applicant assisted police in the initial stages of their investigation but 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’.30 VCAT determined that the applicant had neither provided reasonable assistance nor were there special circumstances mitigating the applicant’s failure.
  3. 8.38 In Gray v Victims of Crimes Assistance Tribunal,31 the 16-year-old applicant had been stabbed at a train station. VOCAT denied his application under section 52 for failure to cooperate with police because he had refused to give police a statement immediately after the stabbing, although he did give a statement months later. VCAT stated ‘it is always a matter of significant concern where a victim of crime does not immediately cooperate with Victoria Police. If [the applicant] had been aged 18 at the time of the offence, I would probably have affirmed VOCAT’s decision.’32 However, VCAT overturned VOCAT’s decision on the basis the applicant had provided reasonable, although delayed, assistance and that earlier cooperation with police would likely not have made a different to the police investigation.

Additional factors VOCAT must consider under section 54 of the Act

  1. 8.39 Once VOCAT has determined that an act of violence has 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 additional 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) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence’33
  • ‘whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation’34
  • ‘any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death’35
  • ‘whether the person by whom the act of violence was committed will benefit directly or indirectly from the award’36
  • ‘any other circumstances that it considers relevant’.37
  1. 8.40 These considerations are discussed below.

Character, behaviour and attitude of applicant

  1. 8.41 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.38 However, the considerations required are much broader than that, given VOCAT can consider the character, behaviour or attitude of the victim ‘at any time, whether before, during or after the commission of the act of violence’.39
  2. 8.42 For related victims, section 54 of the Act requires VOCAT to have regard to the character, behaviour and attitude of the deceased primary victim of the act of violence; any obligations owed to the applicant by the deceased primary victim; the financial resources and financial needs of the applicant and any other related victim applicants; and the nature of the relationship.40
  3. 8.43 Victoria’s ‘character and behaviour’ provisions are much broader than other Australian jurisdictions. This is because the considerations VOCAT can take into account are not required to be directly related to the circumstances of the current victimisation.
  4. 8.44 In contrast, the equivalent provision in New South Wales considers ‘any behaviour (including past criminal activity), condition, attitude or disposition’ of the applicant, however, this is considered only in the context of whether these factors ‘directly or indirectly contributed to the injury or death sustained’.41
  5. 8.45 Similarly, in Western Australia, the government assessor can refuse or reduce an award only if the behaviour, condition, attitude or disposition of the victim contributed to their injury or death.42
  6. 8.46 In the Australian Capital Territory, an applicant’s character and behaviour are only relevant to whether the applicant ‘conspired with the person responsible for the act of violence’, ‘the applicant was involved in a serious crime when the act of violence that is the subject of the application occurred’, ‘the applicant has unreasonably failed to give assistance to the police’ or ‘the applicant has been involved in contributory conduct’.43
  7. 8.47 In Queensland, a grant can only be denied if the applicant conspired with the perpetrator to commit the act of violence, if the main reason the act of violence was committed was because of the involvement in criminal activity, or if they did not report to police or provide reasonable assistance.44
  8. 8.48 These provisions in other jurisdictions therefore causally link the consideration of character and behaviour to the current circumstances of victimisation and are more akin to ‘provocation’ or ‘contributory conduct’ provisions which are discussed in detail below. There is no broader consideration of the applicant’s character or behaviour ‘at any time’45 as there is in Victoria.
  9. 8.49 Analysis of case law shows that the practical application of section 54 results in the past criminal activity of a VOCAT applicant being closely scrutinised.46 As this may not be causally connected to the subject of the application, this sets Victoria apart from other jurisdictions.
  10. 8.50 As noted in the first consultation paper, 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 into Family Violence found that a substantial majority of Victorian female criminal offenders had experienced family violence.48
  11. 8.51 Recent research has also found a link between childhood sexual abuse and later offending behaviour.49 In a sample of 2759 childhood sexual abuse victims, it was found these victims were almost five times more likely than the general population to be charged with criminal offences later in life.50 The study found that both male and female child sexual abuse victims were significantly more likely than non-abused people to be charged with offences of all types but in particular with violence and sexual offences.51 Moreover, child sexual abuse victims were not only more likely than others to offend, they had a greater number of charges, more custodial sentences and they continued offending to an older age.52
  12. 8.52 Recent analysis of VOCAT decisions has also highlighted drug use and addiction as a potential obstacle to assistance under this section of the Act.53
  13. 8.53 RUM v Victims of Crime Assistance Tribunal54 provides an example of the operation of these provisions. In this case, 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’.55
  14. 8.54 Similarly, in TNX v Victims of Crime Assistance Tribunal,56 VCAT considered the applicant’s prior convictions for causing serious injuries, his failure to render assistance and the limited remorse shown by the applicant in relation to his offending behaviour. Taking into account all those circumstances, VCAT determined it was appropriate to reduce the special financial assistance available from $10,000 to $8500.57
  15. 8.55 In Nguyen v Victims of Crime Assistance Tribunal,58 VCAT determined that despite the applicant’s criminal history, it was appropriate to make a ‘modest’ award for medical expenses and clothing replacement. VCAT considered that his prior offences did not involve violence and the application was only for expenses incurred.
  16. 8.56 A similar rationale can be seen in White v Victims of Crime Assistance Tribunal59 where VCAT upheld VOCAT’s decision not to award special financial assistance because of the applicant’s past criminal history, indicating the provision of special financial assistance would ‘offend the conscience of the people of Victoria’.60 However, VCAT determined it would be appropriate to provide assistance for medical expenses and overturned VOCAT’s decision not to make an award for reasonable medical expenses.61
  17. 8.57 Case law analysis indicates that in some cases an applicant’s past criminal behaviour may be viewed within a broader context of disadvantage or victimisation. In Rajah v Victims of Crime Assistance Tribunal,62 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 drug and alcohol abuse. In that case, VCAT accepted the circumstances of the offending and the vulnerability of the victim as giving rise to special circumstances.
  18. 8.58 However, in MK v Victims of Crime Assistance Tribunal,63 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, who she reported was abusive, despite describing the financial abuse as part of the violence perpetrated by her partner.
  19. 8.59 In the case of related victims, the deceased primary victim’s character, behaviour and past criminal conduct are considered. For example in Tighe v Victims of Crime Assistance Tribunal,64 the siblings of a person with a substantial criminal record who was murdered during a drug deal made an application to VOCAT. On appeal, VCAT held that the past criminal activities of the deceased should reduce the assistance to be awarded, rather than result in a refusal of an award.
  20. 8.60 Research conducted by Kate Seear and Suzanne Fraser in 2014 found that victims of crime who use drugs and/or alcohol face considerable obstacles in accessing VOCAT awards because of the character and behaviour considerations under section 54 of the Act.65 Seear and Fraser examined available VOCAT decisions in relation to how drug and alcohol use was considered. In the cases they examined, drug use and addiction were found to be directly relevant to the question of whether or not the applicant was ‘deserving’ of an award of assistance. In some cases, consideration of drug and alcohol use was combined with consideration of past criminal activity. For example, referring to Hassell v Victims of Crime Assistance Tribunal, Seear and Fraser contend that:

the court has clearly problematised [the applicant’s] drug use and addiction in association with his criminal history under the character provisions, producing it [as] a potential obstacle to the provision of compensation. The possibility that being a heroin addict might be incompatible with being an eligible victim is raised.66

Whether the applicant ‘provoked the commission of the act of violence’ and any ‘condition or disposition of the applicant’

  1. 8.61 As outlined above, in determining whether to award financial assistance or how much to award, section 54 of the Act requires VOCAT to consider:
  • ‘whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation’67
  • ‘any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death’.68
  • Together, these are sometimes referred to as ‘contributory conduct’ or ‘provocation’ clauses.69 Some commentary suggests these provisions relate to ‘… the extent to which the applicant was the author of their misfortune’.’70
  1. 8.62 In Fallon v Victims of Crime Assistance Tribunal,71 VCAT affirmed VOCAT’s decision to deny the applicant assistance due to provocation, despite finding the applicant a victim of an act of violence:

There is no doubt in my mind that the inflammatory words uttered by [the victim] set in motion the chain of events … In my view she invited retaliation. Her behaviour was provocative and entirely out of proportion with the circumstances.72

  1. 8.63 Accordingly, given the victim’s ‘provocative’ actions, VCAT determined that the incident did not ‘give rise to circumstances where there should be any expression, symbolic or otherwise, by “the State of the community’s sympathy and condolence”’.73
  2. 8.64 In Heron v Victims of Crime Assistance Tribunal,74 VCAT upheld VOCAT’s decision not to make an award of assistance. VCAT stated that the applicant’s comments to the perpetrator were ‘provocative’.
  3. 8.65 However, in that case, consideration of the applicant’s ‘provocative’ comments appears to have been under the provision in section 54(a) dealing with ‘the character, behaviour or attitude of the applicant at any time’ rather than the specific provision on provocation in section 54(c).75 Overall, VCAT considered that the provocative comments, combined with the consumption of alcohol as well as a history of altercations with the alleged perpetrator were all relevant consideration under section 54 of the Act. of the applicant’s behaviour and attitude before and during the incident.76
  4. 8.66 In practice there may be little distinction made between consideration under the broader ‘character and behaviour’ provisions of section 54(a) of the Act and the more specific ‘provocation’ provisions of section 54(c) of the Act. This may be because section 54(a) is broad—’the character, behaviour or attitude of the applicant at any time’—and may capture other actions or behaviours of the applicant, such as actions that might be deemed ‘provocative’.
  5. 8.67 In Mendez v Victims of Crime Assistance Tribunal,77 which involved family violence, VOCAT and VCAT took different views of the victim’s role in allegedly provoking the act of violence. In that case, VOCAT relied on the applicant’s ‘alleged role in starting the fight during which she was assaulted, as factors under s.54 of the VOCA Act which militated against a further award of assistance’.78
  6. 8.68 However, VCAT ultimately determined that although the applicant may have ‘provoked’ the assault, the applicant’s ‘provocation’ was outweighed by the actions of the perpetrator:

I turn to consider the relevant factors under s.54(a) of the VOCA Act … As for her role in provoking the assault, I consider that any provocation by Ms Mendez is outweighed by the role of her assailant … I note that the assailant was charged, inter alia, with intentionally cause serious injury, and that Ms Mendez was not charged with any offence arising from the incident.79

  1. 8.69 As demonstrated by the cases discussed above, it appears that VOCAT may consider section 54 matters as a whole, rather than considering each sub-section individually.Commentary suggests that the requirement to have regard to ‘any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death’ may relate to ‘behaviour falling short of provocation [but that] could include a psychiatric condition which affected the interaction with the assailant’.80

Perpetrator benefit

  1. 8.70 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.81
  2. 8.71 The Act provides no guidance about what might be considered a direct or indirect benefit to a perpetrator.
  3. 8.72 The Commission has not found VOCAT appeal decisions on this point. However, some stakeholders and academics have raised concerns that the perpetrator benefit provision unfairly prejudices some classes of victim, particularly victims of family violence who may have an ongoing relationship with the perpetrator. Further discussion of these matters can be found in Chapter 10 of the Commission’s first consultation paper.82

Discussion and options for reform

  1. 8.73 This section discusses the operation of sections 52, 53 and 54 of the Act and sets out options for reform to address concerns that some victims of crime are unfairly disadvantaged by the operation of these provisions. Options for reform and some questions are set out below.
  2. 8.74 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether sections 52, 53 and 54 should be amended.

Requirement to report to police within reasonable time

  1. 8.75 The effect of the requirement on victims of family violence to report to police within a reasonable time was considered in the first consultation paper. In particular, the Commission noted that victims of family violence are less likely to report to police due to fear, shame or economic disadvantage.83
  2. 8.76 However, victims of other types of crime are equally vulnerable to such factors, for example victims of certain types of crime associated with low reporting rates, such as sexual assault or historical child sexual assault.84
  3. 8.77 In addition, the experience in the VOCAT Koori List is that some victims would prefer to deal with issues ‘in house’ rather than involve police.85 This attitude reflects the often violent and disempowering history of police interactions with the Aboriginal population since colonisation, despite improvements to police culture in recent times.86
  4. 8.78 Research indicates that homophobia and heterosexism may contribute to a reluctance within the LGBTIQ community to also report victimisation to police.87 The Royal Commission into Family Violence found that people from LGBTIQ communities are less likely to report family violence to police because of actual or perceived discrimination and harassment.88
  5. 8.79 For victims with disability, additional barriers might relate to living environments, physical and financial independence and barriers to reports of violence being believed.89 Victoria’s 2016 Parliamentary Inquiry into Abuse in Disability Services found that many instances of assault, including sexual assault, were not reported to police, although, they may have been reported as ‘incidents’ by the service provider.90
  6. 8.80 Victims may ultimately make a report to police, but the report may be significantly delayed. This is a known characteristic of childhood sexual abuse victims where disclosure can take several decades.91
  7. 8.81 While section 53 of the Act provides guidance on the factors VOCAT may have regard to in determining whether the act of violence was reported to police within a reasonable time, the first consultation paper also noted that case law offers differing interpretations of what might be considered reasonable in the context of family violence.92
  8. 8.82 In addition, ‘special circumstances’ is not defined in the Act, which can lead to uncertainty. Case law indicates that special circumstances must be something ‘out of the ordinary’.93 While child sexual abuse has previously been considered special circumstances mitigating an unreasonable delay in reporting to police,94 the meaning of special circumstances is less clear for other types of victim.
  9. 8.83 Most Australian state and territory financial assistance schemes for victims of crime require a victim to report to police within a reasonable time.95 Aside from the evidentiary benefits for supporting compensation or financial assistance claims, such provisions encourage victims to come forward to enable the state to prosecute offences.96
  10. 8.84 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.97 In South Australia the court cannot make a compensation order if the applicant failed to report the offence ‘without good reason’.98
  11. 8.85 However, in New South Wales, Queensland and the Australian Capital Territory, an act of violence can also be reported to other professionals, including government agencies and health professionals such as a counsellor, psychologist or doctor.99 Furthermore, in 2017, the Queensland Parliament passed an amendment to its legislation to explicitly extend its alternative reporting provision to domestic violence services.100
  12. 8.86 Provisions like those in New South Wales, Queensland and the Australian Capital Territory acknowledge that reporting to police may still be a barrier for many victims of crime. Options to address these barriers are set out below, along with specific questions for consideration.

Providing more guidance about what constitutes a report to police

  1. 8.87 One option is to amend the Act to specify the positive actions a victim can take that would constitute a report to police for the purposes of section 52(a)(i) of the Act.
  2. 8.88 This option would help to address issues with victims believing they have made a report to police, where the matter has not been officially recorded.

Removing the requirement to report to police entirely

  1. 8.89 As an alternative option, consideration could be given to removing the requirement to report to police entirely. This could apply to all victims, or specific classes of victims only.
  2. 8.90 A further option could be to replace the requirement to report to police with a requirement to make a report to either police or other recognised agencies or professionals. For example, in the Australian Capital Territory, New South Wales and Queensland, special classes of victims may make a report to their doctor or social worker.101
  3. 8.91 Research indicates that low rates of reporting to police do not necessarily mean that a victim has not disclosed the crime to other agencies or organisations, such as a women’s or family violence service.102
  4. 8.92 This option would help to overcome some of the difficulties and barriers experienced by some victims of crime in being required under the Act to make a report to police only.

 

 

Question

  1. 30 Should the requirement to report incidents to police be explicitly excluded for some types of crime? Alternatively, should reports made by victims to other professionals or agencies be recognised? If so, how would this work in practice?

 

Requirement to provide reasonable assistance to police and prosecution

  1. 8.93 As already noted, there are no prescribed positive actions a victim must undertake to satisfy the ‘reasonable assistance’ requirement. However, VOCAT advises victims that they should call police to attend the scene of a crime, make a formal statement (including sworn statement if requested) and provide full details of the police office’s station, rank and registration number.103
  2. 8.94 There are many reasons why these requirements will be difficult for some victims. The instructions given to victims by VOCAT may be more applicable to one-off acts of stranger violence than to acts of violence that involve patterns of abuse, multiple incidents over a period of time and no single crime scene.
  3. 8.95 Satisfying this requirement may therefore be much more difficult for victims of historical childhood sexual abuse, family violence, sexual assault and violence in care facilities.
  4. 8.96 As discussed in the first consultation paper, it is common in circumstances where perpetrators of violence exercise power and control over a victim for victims to report a matter to police, then fail to assist with prosecution by withdrawing the complaint or refusing to give evidence in court.104 This is particularly the case where the perpetrator and victim are known to each other, for example, in circumstances of family violence and cases of sexual assault. Victims may fear the perpetrator or they may have reconciled after a violent incident. The victim may also be financially reliant on the perpetrator.
  5. 8.97 The Act does not provide guidance about whether these factors can be taken into account by VOCAT. Case law offers differing interpretations of what may constitute reasonable assistance.
  6. 8.98 Most Australian state and territory schemes require victims to assist police and prosecution. However, Queensland has recently amended its legislation to enable consideration of whether an act of violence involves domestic violence, in recognition of the particular dynamics in these circumstances that might prevent victims from assisting police and prosecution.105
  7. 8.99 Options to address concerns that some victims of crime are unfairly disadvantaged by the operation of sections 52 and 53 are set out below, along with questions for consideration.

Removing the requirement to provide reasonable assistance for some victims

  1. 8.100 Consideration could be given to amending the Act to remove the requirement to provide reasonable assistance to police and prosecution for some categories of victim, in recognition of the challenges some victims may face in cooperating with authorities.

 

Question

  1. 31 Should the requirement to provide reasonable assistance to police and prosecution be explicitly excluded for some categories of victim? If yes, what categories?

 

Specifying additional factors for consideration in determining reasonable assistance

  1. 8.101 Another option is for the Act to be amended to specify additional factors VOCAT may, or must, consider in determining whether the applicant has provided reasonable assistance to police and prosecution. These factors could also apply to the consideration of whether a report was made to police within reasonable time.
  2. 8.102 In addition, or alternatively, section 52 of the Act could be amended to explicitly define ‘special circumstances’ for the purposes of this section.
  3. 8.103 This would help clarify the legislative intent of the special circumstances provision which has been interpreted by the courts as something ‘out of the ordinary’. This appears to sit uneasily with some victimisation circumstances which are ordinary—such as family violence or sexual assault—but which give rise to specific vulnerabilities which may not have been envisaged at the time the Act was introduced.

Questions

  1. 32 How do the ‘reasonable assistance’ requirements impact on victims of crime?
  2. 33 Should the Act be amended to improve the operation of the ‘reasonable assistance’ provisions for victims of crime? If so, what changes should be made to the Act?

 

Character and behaviour considerations

  1. 8.104 As outlined above, section 54 of the Act requires a victim’s character and behaviour to be considered. Case law analysis indicates a victim’s character and behaviour will be particularly considered with respect to:
  • prior criminal offending
  • current or previous drug and alcohol use or other lifestyle factors interpreted as ‘problematic’
  • ‘contributory conduct’ or ‘provocation’.
  1. 8.105 Case law demonstrates that a victim’s eligibility for financial assistance is not solely based on the act of violence. Broad discretionary factors in relation to the character and behaviour of the victim also inform decision making. These factors appear to be a reflection of community expectations that the victim must be an appropriate recipient of ‘sympathy’. Some academics have suggested that victims must demonstrate they are exhibiting behaviours typically associated with ‘responsible citizenship’.106
  2. 8.106 In Hassell v Victims of Crime Assistance Tribunal,107 VCAT cites the original decision of VOCAT: ‘the Act is designed to assist victims of crime, not persons who become victims because of their involvement in the drug industry’.108
  3. 8.107 In relation to prior criminal offending, the United Kingdom has an overt acknowledgment of these considerations and a more prescriptive approach than Australian states and territories, refusing awards or reducing awards where applicants have an unspent conviction, calculated on a sliding scale.109
  4. 8.108 Even though Victoria is not as prescriptive as the United Kingdom, some victims with past criminal records in Victoria may find it difficult to secure an award, or the award of assistance may be reduced.110 While the first consultation paper considered whether such provisions disadvantaged victims of family violence as compared to other victims of crime,111 the supplementary terms of reference require the Commission to consider the appropriateness of such provisions for all victims, particularly where a victim’s character and behaviour may have no obvious link to the circumstances surrounding the act of violence.
  5. 8.109 For example, should consideration of provocation or contributory conduct—actions that might reasonably be viewed as causally linked to the acts of violence—be given the same weight as unrelated criminal convictions from 10 years prior to the act of violence? Similarly, should the fact a victim uses drugs and alcohol be a relevant factor if entirely unrelated to the act of violence?
  6. 8.110 The Act currently provides wide discretion for VOCAT to determine the weight given to these types of matters.
  7. 8.111 However, research highlights the problematic nature of such broad discretion:

section 54 offers no guidance to what might be a relevant consideration, what weight should be given to relevant considerations in deciding whether or not to make an award, and how those considerations impact on decisions about the kind or size of an award to make … judges have considerable scope for determining what is both ‘relevant’ and ‘problematic’.112

  1. 8.112 The relevance of criminal history appears to be considered both in the context of whether the past offences are violent,113 as well as whether their commission can be justified by issues relating to drug and alcohol addiction.114
  2. 8.113 Further complicating such considerations is the known link between victimisation and offending behaviour—that is, victims of crime who end up in contact with the justice system as offenders, and therefore have a criminal record, but whose offending is directly related to the trauma associated with prior 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.115

  1. 8.114 Smart Justice has stated that consideration of past criminal behaviours further disadvantages vulnerable victims of crime, resulting, for example, in Koori victims facing unfair barriers to accessing compensation:

Some of these victims have been victims of family violence or sexual assault as children which has led to drug use and a criminal record. However, the current law requires the Victims of Crime Assistance Tribunal (VOCAT) to have regard to a victim’s past criminal activity when making an award or when assessing the amount of the award.116

  1. 8.115 This disadvantage may be more pronounced for particular cohorts of victims, such as victims of child sexual abuse, who may be more likely than the general population to go on to commit criminal offences.117
  2. 8.116 The operation of section 54 raises concerns that the Act unfairly judges victims’ past criminal behaviour, which may itself result from disadvantage and trauma associated with previous victimisation.
  3. 8.117 David Miers has observed that although the underlying philosophy of victim compensation schemes has always relied on a differentiation between ‘deserving’ and ‘undeserving’ victims, this philosophy becomes problematic because it is confounded by the reality of criminal victimisation—the fact that many victims have also been offenders.118
  4. 8.118 Is the Act fulfilling its aim of assisting victims of crime if victims are judged by past criminal behaviour resulting from disadvantage and trauma associated with previous victimisation?
  5. 8.119 In all Australian jurisdictions, there is some form of ‘provocation’ or ‘contributory conduct’ clause in the relevant legislation.119 Despite their prevalence, such provisions are not without controversy, given the potential for ‘victim blaming’, particularly in the context of family violence.120
  6. 8.120 During preliminary consultations, the Commission was informed that there may be circumstances where victims are charged with criminal offences as a result of defensive actions taken against perpetrators. The Royal Commission into Family Violence was told that police sometimes inaccurately identify victims as ‘primary aggressors’ when attending family violence incidents, particularly where a victim may use violence in self-defence.121 Such actions may have an adverse impact on VOCAT applications.
  7. 8.121 Matthew Hall states that Australian schemes have long been concerned with compensating ‘deserving’ victims who cooperate with authorities, are in no way responsible for their injuries and are generally free of past criminal convictions.122 However, Julie Stubbs and Jane Wangmann have highlighted that binary oppositions entrenched within the legal system, such as ‘innocent’ victims and ‘wicked’ offenders, can disadvantage victims who do not fit these strict categories, such as female victims of family violence who ‘fight back’, have a criminal history, or abuse drugs and alcohol.123

 

Providing more guidance in the Act about relevant section 54 factors

  1. 8.122 As discussed above, the Act provides little legislative guidance to enable VOCAT to exercise its discretion under section 54 in a consistent way. This is particularly significant given the broad discretion afforded to VOCAT to consider the character, behaviour or attitude of the applicant ‘at any time, whether before, during or after the commission of the act of violence’.124
  2. 8.123 One option is to define some section 54 considerations to limit the discretion available to decision makers under the Act.
  3. 8.124 Alternatively, additional guidance could be provided in the Act about the factors and considerations that are relevant, including being more specific about the relevance of past criminal convictions. This could relate to time periods, such as when a criminal conviction is still relevant, or crime types. For example, the Queensland legislation expressly provides guidance for decision makers with respect to a victim’s past criminal history, stating that the government assessor may have regard to the circumstances of the offences to which the convictions mentioned in the victim’s criminal history relate, including—:125
  • when the offences happened
  • the seriousness of the offences
  • the primary victim’s age when the offences happened
  • the regularity of the offences.
  1. 8.125 Consideration could also be given to being more prescriptive like the UK so as to increase transparency and certainty. The United Kingdom has an unspent conviction system which is 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
  2. 8.126 The Manitoba (Canada) scheme also provides specific guidance in its regulations. Victims with a conviction for offences under the Criminal Code or the Controlled Drugs and Substances Act are ineligible for compensation unless their conviction was more than 10 years prior and they have not subsequently been convicted of another such offence.127

Question

  1. 34 What are the effects of the section 54 considerations for victims? Are they operating fairly and appropriately? Should the Act continue to consider the ‘character and the behaviour’ of the victim ‘at any time’ as currently required under section 54(a) of the Act, or at all? If not, what changes should be made to the Act to address this?

 

Removing consideration of some section 54 factors

  1. 8.127 One option is to remove consideration of some of the section 54 factors. For example, it may no longer be appropriate to consider broad ‘character and behaviour’ considerations when such behaviours have no bearing on the current circumstances of victimisation.
  2. 8.128 Alternatively, character and behaviour considerations could be limited to those behaviours relevant to the current circumstances of victimisation, as in most other Australian jurisdictions.128
  3. 8.129 A further option could be to limit behaviour considerations only to whether the applicant was committing an offence at the time or colluding with an alleged perpetrator, like the provisions in Queensland and Northern Territory.129 Under this approach, broader ‘contributory’ conduct or ‘provocation’ would not be a relevant consideration.
  4. 8.130 Another option could be for some, or all, of the section 54 considerations to be excluded for some categories of victim. In addition, some categories of crime could be specified as factors VOCAT must have regard to in exercising its discretion under section 54 so as to take into account the particular dynamics and characteristics of certain types of crime.

Question

  1. 35 Are there some section 54 factors, such as whether the applicant provoked the act of violence or the applicant’s past criminal record, which should no longer be relevant for the consideration of award applications?

 

Removing the perpetrator benefit provision

  1. 8.131 So as not to unfairly disadvantage victims of crime who may still be in a relationship with, or in contact with, an alleged perpetrator, consideration could be given to removing the perpetrator benefit provision for some categories of victim.

Question

  1. 36 How do the perpetrator benefit provisions under section 54 of the Act currently affect some categories of victim? Are these provisions operating fairly and appropriately? If not, what changes should be made to the Act to address this?

 

 

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