12. Awareness and accessibility of VOCAT

 

Introduction

  1. 12.1 This chapter considers what proportion of victims of crime currently access the Victims of Crime Assistance Tribunal (VOCAT). This analysis explores the number of VOCAT applications compared to the recorded number of crimes against the person in Victoria.
  2. 12.2 This analysis seeks to understand how aware the community might be of VOCAT, and how accessible VOCAT is to victims of crime. These are different matters to the legislative barriers that may be encountered after a victim applies to VOCAT.
  3. 12.3 This chapter relates to issues raised in the first matter specified in the supplementary terms of reference. It asks the Victorian Law Reform Commission (the Commission) to consider whether the Victims of Crime Assistance Act 1996 (Vic) (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.
  4. 12.4 It also considers the extent to which access to the scheme is supported by the broader victim support system.
  5. 12.5 This chapter poses a number of questions and suggests options for reform to improve victims’ awareness of, and access to, the scheme.

Victims’ access to VOCAT

  1. 12.6 Based on statistical analysis of family violence and VOCAT data, the first consultation paper concluded that the small number of family violence-related VOCAT applications recorded for 2015–16 (388) appeared disproportionate to the number of family violence incidents recorded that same year (78,628).1
  2. 12.7 In order to understand how aware the broader group of victims of crimes against the person are of VOCAT and their eligibility under the Act, this section examines victim report data to assess the percentage of crimes against the person reported to police that result in applications to VOCAT.
  3. 12.8 Victoria’s Crime Statistics Agency analyses the number of victim reports2 using Victoria Police’s database, LEAP. A victim report is counted when an individual, business or organisation reports that they have been a victim of one or more criminal offences and a record is made in LEAP.3
  4. 12.9 In the year ending March 2017, 243,962 victim reports were made by individuals.4 Of the total number of victim reports, 80.5 per cent had a principal offence of ‘property and deception offences’, while 65,179 reports (19.5 per cent) were ‘crimes against the person’.5 These crimes against the person include homicide, assault, sexual offences, abduction, robbery, stalking, harassment and threatening behaviour and dangerous/negligent acts endangering people. All such crimes against the person are ‘acts of violence’ for the purposes of VOCAT.
  5. 12.10 Based on the number of victim reports for crimes against the person between April 2016 and March 2017, approximately 65,000 individuals were potentially eligible for VOCAT.6 However, not all victims of these crimes would satisfy all of the eligibility and mandatory consideration criteria under the Act, such as having an ‘injury’ as defined under the Act.
  6. 12.11 VOCAT’s data collection activities are based on the financial year and do not directly match the Crimes Statistics Agency reporting time frame. Accordingly, the Commission has averaged the number of VOCAT applications filed for the past three financial years to calculate the average number of applications that might be received by VOCAT in any 12-month period—a figure of 5998 VOCAT applications.7 This annual average can then be compared with the 65,000 victim reports relating to crimes against the person for the 12-month period used by the Crime Statistics Agency.
  7. 12.12 Using these figures as a guide, it would appear that at present, approximately only nine per cent of all potentially eligible victims of crimes against the person are making applications to VOCAT for financial assistance.
  8. 12.13 As with the previous data analysis prepared by the Commission in relation to family violence, the small number of VOCAT applications appears disproportionate to the number of victim reports for crimes against the person, and may indicate a high proportion of unmet demand.
  9. 12.14 This appears consistent with other research findings. For example, a 2008 study in the United States of America found that the vast majority of victims do not apply for state-based financial assistance—fewer than five per cent of victims apply.8 This study found particularly low application rates among young victims, males, culturally and linguistically diverse communities and physical assault victims.9 Lack of awareness of the scheme, as well as lack of assistance to complete an application, were cited as reasons for the under-utilisation of the scheme.10

Awareness of the scheme and VOCAT

  1. 12.15 Awareness of compensation and state-funded financial assistance has been raised as one of the most critical barriers to the effectiveness of any victims of crime financial assistance or compensation scheme.11
  2. 12.16 Research conducted by Women’s Legal Service Victoria has found that many victims of family violence are simply unaware of the existence of VOCAT.12 Women’s Legal Service Victoria has therefore recommended that any reform to the Act to improve accessibility

    for victims of family violence must also be accompanied by awareness raising, to ensure family violence victims are aware of their entitlements under the Act.13
  3. 12.17 Similarly, research conducted by the Victims Support Agency in relation to a broader cohort of victims found a general lack of awareness and understanding of VOCAT and the process, even among victims who had been through the VOCAT process.14 Some participants were unaware of VOCAT as a separate legal entity, referring to the process and assistance provided as being provided by ‘Victims of Crime’.15 Many participants in the Victims Support Agency research stated there was a lack of public awareness of VOCAT and as a consequence considered it likely that many victims would be missing out on assistance. Some described learning about VOCAT themselves only ‘by chance’.16
  4. 12.18 Research by Whittlesea Community Legal Service in 2011 also found a lack of awareness among victims regarding financial assistance available through VOCAT.17
  5. 12.19 During preliminary consultations, the Commission was told that it did not seem to be a core part of any agency’s role to inform victims about VOCAT or to provide written information or referrals.
  6. 12.20 In an analysis of Australian victim compensation schemes, Betty Chan et al conceded that only a small proportion of victims pursue support from a victim compensation scheme. One reason provided was victims’ lack of awareness of the schemes.18
  7. 12.21 Issues relating to awareness of compensation schemes are not unique to Victoria. Similar issues were identified during the United Kingdom’s examination of the Criminal Injuries Compensation Authority as part of its Independent Inquiry into Child Sexual Abuse, a similar inquiry to Australia’s Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. A 2017 report of the Independent Inquiry found that because the UK scheme is not well publicised, many victims/survivors are simply unaware of its existence.19
  8. 12.22 Furthermore, a 2008 study in the United States found general under-utilisation of victim compensation schemes. The study piloted active outreach to improve access to victim compensation. Active outreach through a trauma recovery service was found to increase the overall proportion of victims applying for compensation.20 Of the sample group provided with active outreach and support to submit an application, only three per cent did not submit a financial assistance application.21
  9. 12.23 Research also indicates that a lack of awareness might not be the only barrier for victims to accessing the scheme. Some victims may be hesitant to apply to VOCAT out of fear they will be viewed as attempting to ‘profit’ from their victimisation:

the pressure to be a worthy and deserving victim and to not appear demanding or expectant had significant effect on some [victims’] comfort in applying for, or receiving, compensation … while compensation may be available through [VOCAT], it is not necessarily considered accessible from the perspective of all victim/survivors. This could result in some victim/survivors being discouraged from applying …22

  1. 12.24 Other victims might be aware of the scheme, but not consider themselves eligible. For example, the Victorian Royal Commission into Family Violence found that some victims were unaware of their eligibility for assistance on the basis of family violence.23 One victim provided evidence indicating that she had only discovered that she could make an application as a victim of family violence after she had applied to VOCAT as a victim of an unrelated sexual assault matter.24 Service providers also submitted to the Royal Commission into Family Violence that VOCAT was underused by victims of family violence.25

Accessibility of the scheme and VOCAT

  1. 12.25 The Act has been described as ‘complex and difficult for victims to understand’.26 A victim’s experience of VOCAT is therefore likely to be enhanced by victim support and the availability of legal representation.27
  2. 12.26 VOCAT has emphasised its close links with support agencies.28 However, these support mechanisms are not integrated with VOCAT and so victims have to access multiple services.

VOCAT as part of the legal system

  1. 12.27 During preliminary consultations the Commission was told that victims are unlikely to navigate the VOCAT system without a lawyer. This was described as a barrier because some victims are not able to access a lawyer. The Commission was also told that sometimes lawyers will not take on VOCAT-related work because the legal costs awarded are too low given the amount of work often required.
  2. 12.28 Research by the Victims Support Agency found that some victims experienced difficulty securing a solicitor who would take on their VOCAT application, particularly in regional areas, while others who could find a solicitor found them difficult to deal with, non-communicative, difficult to contact, dismissive, insensitive, and only interested in money.29
  3. 12.29 Accessibility issues have also been linked to the legalistic nature of the VOCAT processes:

The most common problems with the process of obtaining counselling through VOCAT can broadly be associated with the need to comply with the requirements of a legal system … includ[ing] reluctance by some counsellors to engage with the VOCAT process, time-consuming trips to solicitors, difficulty in obtaining documentation and delays in obtaining [VOCAT-funded] counselling once it had been awarded.30

  1. 12.30 Some academics have suggested that VOCAT’s accessibility is limited because it is part of the justice system rather than the victim support system. Clarke notes that victims can be discouraged from accessing the justice system because they perceive it as detrimental to their wellbeing. As a result, Clarke considers that there should be ‘a greater separation of compensation schemes from the criminal justice system … [to] provide a more encouraging and accessible service for victim/survivors’.31

 

The VOCAT application form and requirements

  1. 12.31 The Commission was also told during preliminary consultations that the documentation requested by VOCAT to support an application can be overwhelming for victims, who therefore need the help of lawyers.
  2. 12.32 The application requirements were detailed in Chapter 10 of this paper where it was noted that significant documentation is expected to be filed in relation to each type of expense claimed, in addition to the completed statement of claim form.32
  3. 12.33 It was also suggested that the VOCAT application form was not ‘victim-friendly’, and not written in plain English. Moreover, the Commission was told that the form did not recognise all victim experiences. For example, the form is tailored towards victims of a one-off act of violence; uses singular language, such as ‘what was the act of violence/offence?’; and leaves a small space for the applicant to answer. It also asks for the ‘date of the act of violence’ and has a section for the time at which the act occurred. Although the form provides an option for entering a span of dates, it also requires the applicant to insert a start and end date. The ‘reporting details’ section asks singular questions, such as the date of the report and the police officer’s name.
  4. 12.34 It is possible that these features of the form make it difficult for victims of certain types of crime to complete. Some victims, such as victims of historical child sexual assault or family violence, may be making an application for a series of acts that occurred over a long period of time, with no clear beginning or end, and which may have been reported multiple times to different police officers.
  5. 12.35 Concerns with the VOCAT application form were also raised in Victims Support Agency research. A victim of historical childhood sexual assault said the application form was not suitable for sexual assault victims, stating: ‘[the VOCAT form] needs to be very friendly. It was too black and white and it was like everyone fits into the same box, and no one fits into the same box.’33
  6. 12.36 The VOCAT application form can be contrasted with the form for victim impact statements produced by the Department of Justice and Regulation. While the victim impact statement form is also a legal form, being a statutory declaration submitted to the court during the sentencing phase of a criminal trial, it has been designed by the Victims Support Agency to provide more guidance, information and space for a victim to convey their story in a more sensitive and victim-friendly way.34 Similar ‘victim-friendly’ information has also been used by the Office of Public Prosecutions in relation to victim and family member reports under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).35
  7. 12.37 During preliminary consultations the Commission was also told that there is a lack of information about VOCAT in accessible formats and in languages other than English. However, the Commission notes that a number of VOCAT’s publications have been translated into languages other than English and are available on the VOCAT website.36 

Discussion and options for reform

  1. 12.38 Options to address issues associated with victims’ awareness of and access to VOCAT are set out below, along with specific questions for consideration.

Combining victim support and the financial assistance scheme

  1. 12.39 One option to improve crime victims’ awareness of and access to the scheme is to combine the financial assistance scheme provided under the Act and through VOCAT with the existing victim support scheme administered by the Department of Justice and Regulation, including:
  • the Victims of Crime Helpline
  • the Victims Assistance Program (VAP)
  • the Victims Register
  • the Prisoner Compensation Quarantine Fund
  • the Child Witness Service.37
  1. 12.40 The establishment of a financial assistance scheme within Victoria’s existing victim support structure could follow a similar structure to that adopted in other Australian jurisdictions. This model was suggested for consideration by the Royal Commission into Family Violence.38
  2. 12.41 For example, Victims Services New South Wales allocates a victims support coordinator to develop a tailored plan and care package for victims. Part of this care package may include financial assistance for immediate needs and economic loss, as well as a recognition payment, which is similar to Victoria’s award for special financial assistance.39 Victims are advised that they do not need a lawyer, as their allocated support coordinator will assist with their claim and Victims Services can obtain police reports, court papers and medical records on a victim’s behalf with their consent.40
  3. 12.42 Similarly, in the Australian Capital Territory, Victim Support ACT administers the financial assistance scheme as well as delivering victim case management. Clients registered for case management receive services such as assessment, court support, advocacy and therapeutic services.41 Victim Support ACT processes applications for financial assistance and the Victims of Crime Commissioner, the head of Victim Support ACT, is the final decision maker.42 This is a new model, introduced in July 2016. Victim Support ACT has stated that the new scheme has reduced barriers for victims by separating the process from the court system and reducing reliance on lawyers.43
  4. 12.43 In a combined victim support and financial assistance scheme, a single service delivers all the components of victim support, reducing reliance on referral pathways. This means victims are assessed for financial assistance automatically as a component of victim support and so are made aware of their financial assistance options. Such a model may also address some of the concerns raised above that some victims may be hesitant to apply for financial assistance because of the potential stigma associated with seeking compensation.
  5. 12.44 A combined model could also ensure that financial assistance would be delivered as part of victim services, bound by the principles of the Victims’ Charter Act 2006 (Vic). The Victims’ Charter Act only applies to investigatory, prosecutorial or victim services agencies and therefore, VOCAT is not bound to provide clear, timely and consistent information about victims’ rights and entitlements the same way victim services are.44
  6. 12.45 An alternative option could be to introduce a hybrid administrative and judicial system. For example, the victim support system could administer payments for expenses incurred or reasonably likely to be incurred for counselling, medical expenses, loss of earnings, funeral expenses and other reasonable expenses to assist with recovery from crime.
  7. 12.46 However, the provision of special financial assistance—sometimes referred to as a ‘recognition payment’ in other jurisdictions—could still be administered judicially.
  8. 12.47 This hybrid model might improve awareness and accessibility for many more victims, as their case workers would be able to automatically and directly link their case planning and service provision to entitlements for expenses incurred under the scheme. However, preserving judicial decision making for recognition payments would also enable victims to receive the recognition and acknowledgment implicit in judicial decision making. These considerations are discussed further in Chapter 15.
  9. 12.48 Embedding financial assistance for expenses related to recovery within the victim support system would also mirror the current system for the provision of family violence flexible support packages (FSPs). Specialist family violence services administer flexible support packages to assist victims to escape violence, and enable family violence services to access funds to provide victims with urgent and critical support tailored to their specific needs.45 Flexible support packages can be made up to $7000, with an average cost of $3000.46
  10. 12.49 Case managers can seek assistance under a number of categories, including:
  • freedom from abuse and violence (which can include purchasing mobile phones, alarms or installing CCTV)
  • suitable and stable housing (funding travel costs, relocation costs, whitegoods, mortgage payments, utility bills)
  • physical and mental wellbeing (funding disability aids and covering pharmaceutical costs)
  • alcohol and other drugs counselling
  • family violence counselling
  • participation in learning and education activities (funding TAFE or university including books and equipment) or participation in the workforce (purchasing clothing, uniforms or travel support)
  • financial security and independence (payment of debts or financial services)
  • legal and court costs
  • support for social engagement, connection with culture and identity (funding a travel card, car repairs, driving lessons or cultural activities).47
  1. 12.50 The framework for FSPs requires case managers to identify the ways in which the packages will support the long-term health and wellbeing of the victim. As FSPs are administered by community agencies via a case management approach, and agencies are not bound by legislation like VOCAT, packages can be approved in approximately 14 days.48
  2. 12.51 Unlike the current victim support system, family violence victims do not need to access this financial assistance via a separate agency—their case worker can apply for the assistance on their behalf.

Questions

  1. 55 How do victims learn about the availability of VOCAT? When, how and by whom should victims be informed of their potential eligibility under the Act?
  2. 56 Should the provision of state-funded financial assistance be integrated with victim support services? If so, how should financial assistance be integrated with victim support?

 

Reducing reliance on lawyers

  1. 12.52 The supplementary terms of reference require the Commission to consider how victims can quickly and easily access the assistance offered by the scheme without necessarily requiring legal support.
  2. 12.53 VOCAT can be difficult for victims to access without a lawyer to help navigate the scheme.49 Legal representation often enhances a victim’s access to support. However, it can be difficult for some victims to access a lawyer, particularly in rural and remote areas. In addition, victims’ experiences of lawyers vary, with some victims describing lawyers they have engaged to assist with VOCAT applications as non-communicative, difficult to contact, dismissive or insensitive.50
  3. 12.54 The need for legal representation significantly increases the costs of a financial assistance scheme. For example, in 2015–16, $4,937,677 for legal costs was awarded, an average of $1187 per awarded applicant.51 As noted in Chapter 6, during preliminary consultations the Commission was told that the legal costs awarded can be more than the amount of the award given to the victim.
  4. 12.55 Combined administrative victim support and financial assistance schemes as outlined above can reduce reliance on lawyers. For example, in New South Wales, victims are advised that they do not need a lawyer, as their allocated support coordinator will assist with their claim and Victims Services can obtain police reports, court papers and medical records with a victim’s consent.52
  5. 12.56 However, this approach, which sees a reduced reliance on lawyers, is not universally supported in New South Wales. When the New South Wales scheme was tribunal-based, around 70 per cent of applicants were legally represented. Upon introduction of the combined victim support/financial assistance scheme, this figure reduced to approximately five per cent.53
  6. 12.57 Community Legal Centres NSW submitted to the 2012 review of New South Wales’ scheme that victims are ‘best served by having legal representation in a claim for compensation’ and that: ‘legal practitioners are best placed to provide assistance with framing and drafting the victims compensation application and submission’.54 It was submitted that legal representation is particularly crucial for complex matters such as applications relating to domestic violence, sexual assault and child sexual assault.55 It was also submitted that legal representation is vital to advise victims of their right to review or appeal a decision.56
  7. 12.58 Furthermore, in a recent submission to the current statutory review of the New South Wales scheme, Community Legal Centres NSW submitted that it was ‘a conflict of interest for staff from the agency that ultimately determines whether or not victims support is awarded to assist a victim in making such an application’.57
  8. 12.59 Similarly, research conducted by Whittlesea Community Legal Service in Victoria found that briefing experienced counsel for VOCAT matters can result in increased awards for special financial assistance.58

Question

  1. 57 Is the VOCAT system easy to navigate without legal representation? If not, why? Should the system be changed to make it more accessible for victims without legal representation? If so, what changes should be made to the Act and/or VOCAT processes?

 

Providing victim-friendly and accessible information

  1. 12.60 Another option for reform is to review the suite of forms and information for victims making an application to VOCAT to improve their accessibility. This alone could help reduce reliance on lawyers, as victims may feel more able to pursue an application on their own, or with help from their family, friends or a support worker.
  2. 12.61 This option would involve reviewing the current application form to make it more accessible for all victims, including victims of family violence and sexual assault, as well as other crimes that may involve multiple acts of violence perpetrated over time.
  3. 12.62 The application form could be reviewed to better capture the experiences of a broader range of victims. It could use more victim-centred and victim-friendly design principles, similar to those used by the Victim Support Agency and the Office of Public Prosecutions in their forms and applications for victim impact statements, or the Crimes (Mental Impairment and Unfitness to be Tried) Act form and guide for family members.
  4. 12.63 Forms and information could be rewritten in plain English and made available in a broader range of languages other than English.

Question

  1. 58 Is there a need to make VOCAT more accessible for victims? If so, what changes should be made to the Act and/or VOCAT processes to make VOCAT more accessible for victims, including those speaking languages other than English?

 

Footnotes

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