14. Approach 1: Reforming the existing scheme

Introduction

  1. 14.1 This chapter outlines broad options to reform the existing state-funded financial assistance scheme.
  2. 14.2 In doing so, it considers the purpose and objectives of the Victims of Crime Assistance Act 1996 (Vic) (the Act) and whether they are currently being realised for victims of crime. To inform this discussion, the Victorian Law Reform Commission (the Commission) revisits legislative and procedural matters specified in matters one to eight in the supplementary terms of reference.
  3. 14.3 This chapter also sets out options for reform and poses questions about how to improve the current scheme through legislative and procedural reform. Other models are discussed in Chapter 15.

The purpose and objectives of the Act

  1. 14.4 As stated in section 1(1), the purpose of the Act is to provide assistance to victims of crime. In support of this, section 1(2) of the Act specifies a number of objectives. These are:
  • to assist victims 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 crime1
  • 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 crime2
  • to allow victims of crime to have recourse to financial assistance where compensation for their injury cannot be obtained from the offender or other sources.3
  1. 14.5 However, section 1(3) states that ‘awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise’.
  2. 14.6 In this context, section 1(4) of the Act also states that the scheme provided by the Act ‘is intended to complement other services provided by the state to victims of crime’.

 

Assisting victims recover from crime

  1. 14.7 As noted above, 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’.4
  2. 14.8 State-funded financial assistance can be an important component of support to assist victims of crime to recover. It may enable financial access to health services and encourage victims to access therapeutic services.5 It can also assist with recovery by providing a route to economic freedom and independence, facilitating a move to another city or providing an opportunity to make a residence safer.6 For these reasons, Ian Freckelton contends that state-funded financial assistance to victims of crime has a significant public health benefit.7
  3. 14.9 However, for state-funded financial assistance to assist in the recovery of victims, it must operate effectively.8 As Freckelton writes: ‘It has the potential to be therapeutic if done promptly, sensitively and accompanied by a clear message that the recipient of the compensation was not at fault for having been victimised.’9
  4. 14.10 On the basis of the research and preliminary consultations undertaken by the Commission, it appears that the current scheme may not be assisting victims to recover from crime. Legislative and procedural barriers can make it difficult for the Act to meaningfully assist many victims of crime to recover. These barriers relating to eligibility, time limits, refusal or reduction of awards, adequacy of awards available, flexibility of awards and timeliness are discussed further below.

Eligibility

  1. 14.11 As discussed in Chapter 5 of this paper, one of the greatest obstacles to the Act fulfilling its objective of assisting victims of crime to recover appears to be the eligibility criteria, which can prevent some victims from accessing the scheme or can give rise to assistance that falls short of their needs.
  2. 14.12 The narrowly defined categories of ‘primary victim’, ‘secondary victim’ and ‘related victim’ in the Act exclude a range of people affected by the ripple effects of violent crime, such as certain family members, people who assist primary victims and children who hear or are otherwise exposed to violence but who do not witness it. In addition, the distinction between primary, secondary and related victims has the effect of creating a hierarchy of victimhood, which may not reflect victims’ experiences or account for their needs.
  3. 14.13 Similarly, the definition of an ‘act of violence’ can also be a barrier for some victims, limiting or preventing them from accessing awards. This includes victims of family violence, child abuse, elder abuse and abuse of people with disability. Some of the most common forms of abuse perpetrated in these contexts are financial and psychological abuse,10 which often do not constitute an ‘act of violence’ under the Act. Moreover, victims of property offences and some non-contact sexual offences are ineligible, despite the adverse psychological effect that these crimes can have on victims.11
  4. 14.14 Even where an offence constitutes an ‘act of violence’ and an applicant falls within one of the defined victim categories, they may still find it difficult to establish that they have suffered an ‘injury’ as defined under the Act. In particular, victims who suffer forms of mental harm that do not constitute a recognised mental illness or disorder may be ineligible for certain awards. Victims of family violence and sexual assault often suffer from diverse forms of harm, such as a reduced sense of self-worth or increased fear or feelings of insecurity. Some applicants, including victims of child abuse and victims of neglect, can encounter difficulties in establishing that their injury was a direct result of an act of violence.

Time limit

  1. 14.15 As discussed in Chapter 7, the two-year application time limit can also be a barrier for certain victims, particularly those who may take a longer period of time to identify, disclose or report such acts of violence, such as victims of family violence12 or sexual assault.13
  2. 14.16 Moreover, even though the Victims of Crime Assistance Tribunal (VOCAT) may grant applications for an extension, the existence of a time limit can be a disincentive for some victims, preventing them from even making an application out of time.

Refusal and reduction of awards

  1. 14.17 As discussed in Chapter 8, the Act requires VOCAT to refuse to make an award of assistance if an act of violence was not reported to police within a reasonable time, or if the applicant failed to provide reasonable assistance to police or the prosecution, unless there are ‘special circumstances’.14
  2. 14.18 The requirement that the act of violence be reported to police within a reasonable time can affect the Act’s accessibility for certain groups of victims, such as victims of family violence, sexual assault and child abuse. These groups are less likely to report to police due to fear, shame or economic disadvantage.15
  3. 14.19 Moreover, the requirement to refuse an award to an applicant who has failed to provide ‘reasonable assistance’ may disproportionately affect victims of violence perpetrated by a person who is in a position of power, influence, trust or control over them, including victims of child abuse, family violence and sexual assault. This is because such victims may fear the perpetrator and/or wish or need to maintain their relationship with the perpetrator.
  4. 14.20 Awards can also be refused or reduced under the Act on a discretionary basis, having regard to a victim’s character, behaviour (including past criminal activity) or attitude, as well as to whether the victim provoked the act of violence, contributed to their own injury through their condition or disposition, or whether the perpetrator will benefit from the award.16 This may sometimes operate to prevent victims of crime who are genuinely in need from being granted an award. In some situations, a refusal can be a result of character and behaviour considerations unrelated to the act of violence.
  5. 14.21 Refusal or reduction of an award due to the victim’s conduct, character or behaviour can also disadvantage particular cohorts of victims., who may have a criminal record or drug abuse problems as a result of disadvantage and trauma flowing from previous victimisation experiences.

Adequacy of assistance available

  1. 14.22 Even where eligibility issues are overcome, the categories and quantum of awards available under the Act may sometimes be inadequate to meet victims’ needs. This may detract from the Act’s capacity to fulfil its objective of assisting victims to recover from crime.
  2. 14.23 As discussed in Chapter 6, the Act’s treatment of ‘related criminal acts’ as a single act of violence can disproportionately reduce the awards of victims of family violence, child abuse, elder abuse and abuse of people with disability. For each of these forms of abuse, the abuse is frequently carried out by the same perpetrator, in the same location, and the acts of violence are often of a similar nature.17 Repeated acts of violence in these contexts are frequently considered to be related. Reduction of awards on this basis may insufficiently address the cumulative harm suffered by victims of a pattern of abuse.18
  3. 14.24 In addition, while the Act enables victims of crime to apply for assistance for recovery expenses, this can only be done in exceptional circumstances.19 If a victim suffers an injury that is not an ‘unusual, special or out of the ordinary’ consequence of a particular criminal act, they may not be able to claim an award for recovery expenses. This emphasis on whether a victim’s reaction is ‘normal’ or ‘exceptional’, rather than on the severity of the act of violence or the harm suffered, means that awards for ‘recovery expenses’ may not always be awarded to those who need them the most.
  4. 14.25 Furthermore, the pool of assistance available for related victims and people applying for funeral expenses can unfairly reduce awards.20

Flexibility—variations

  1. 14.26 Preliminary consultations conducted by the Commission indicated that the process for varying an award is not always smooth, particularly where variations are sought for additional counselling.
  2. 14.27 The Commission was told that the variation process is not ‘victim-centred’, as it relies on victims to re-engage lawyers and other professionals to access further assistance. This may be predominantly due to requirements for applicants to file additional paperwork to support a variation application.
  3. 14.28 The complexity of the variation process can increase delays and limit continuity in services such as counselling. This may adversely affect the extent to which the VOCAT framework assists victims to recover.
  4. 14.29 Moreover, as noted in the final report of the Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, Betrayal of Trust, the six-year variation window is a problem for victims who may require ongoing support for a longer time, such as victims of child sexual abuse.21

Timeliness of awards

  1. 14.30 As discussed in Chapter 10, some stakeholders consider delays in the processing of VOCAT applications to be another key barrier, limiting the Act’s ability to assist in victims’ recovery.
  2. 14.31 Currently, supporting documentation requirements and the use of a tribunal-based system mean that it can take a long time for some victims to receive financial assistance under the Act, particularly where their case is complex. This can affect victims’ recovery by exacerbating their distress.22
  3. 14.32 These issues of eligibility, time limits, refusal and reduction of awards, timeliness and flexibility raise questions about the extent to which the first stated objective of the Act is being met by the current scheme.

Symbolic payments to ‘certain victims of crime’ as recognition

  1. 14.33 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’.23
  2. 14.34 This section considers who is—or can be—considered ‘certain victims’ under the Act. It also considers whether the financial assistance available under the Act provides appropriate recognition of the significant adverse effects experienced or suffered by victims of crime.

‘Certain victims of crime’

  1. 14.35 The Act does not define ‘certain victims of crime’ for the purposes of the second objective in section 1 of the Act.
  2. 14.36 However, symbolic payments of special financial assistance are only available to primary victims who suffer a significant adverse effect as a direct result of an act of violence.24 In addition, symbolic awards for distress are only available to related victims.25 This narrows the meaning of ‘certain victims of crime’, and limits the payments made under the Act as a symbolic expression of sympathy, condolence and recognition to primary victims who suffer a significant adverse effect, and some related victims suffering distress.
  3. 14.37 The Victorian Civil and Administrative Tribunal (VCAT) has drawn a connection between the reference to ‘certain victims of crime’ in section 1 of the Act and the provisions giving rise to refusal or reduction of awards on the basis of the victim’s character and conduct.26 For example, in Attard v Victims of Crime Assistance Tribunal,27 VCAT noted that it would be contrary to the objects of the Act to grant assistance to the deceased victim’s partner and daughter because of the deceased victim’s contributory conduct leading up to his death and his prior criminal record:

Having regard to Mr Naboulsi’s role in the events that led to his death … (coupled with his criminal record) it would be an offence to the objectives of the Act to make an award of assistance. Certain victims of crime should be paid financial assistance as a symbolic expression by the state of the community’s sympathy and condolences … however, [the deceased victim was] himself the perpetrator of an act of violence …28

  1. 14.38 This suggests that, beyond the eligibility criteria for assistance under the Act, the reference in section 1 of the Act to ‘certain victims of crime’ is connected to the notion of whether a victim is an appropriate recipient of assistance, or is a deserving victim.29
  2. 14.39 The question of whether or not the Act should in fact differentiate between ‘deserving’ and ‘undeserving’ victims is explored further below at [14.104]–[14.110].
  3. 14.40 Having regard to the current provision and its case law application, it appears that the Act is generally fulfilling its objective of restricting financial assistance only to ‘certain victims of crime’— victims of violent crime who do not contribute to the circumstances of victimisation, cooperate with authorities and do not have a criminal history.30 This is ensured through the operation of the eligibility criteria and the mandatory and discretionary refusal of awards based on the character and behaviours of the applicant as assessed by VOCAT in accordance with sections 52 and 54 of the Act.
  4. 14.41 However, are these provisions also operating to exclude from assistance some victims who should properly be considered ‘certain victims of crime’?
  5. 14.42 As the first consultation paper discussed, family violence victims can be adversely impacted by refusal of awards under sections 52 and 54 of the Act. Family violence victims can sometimes be unwilling to cooperate with authorities due to fear of the perpetrator, shame or economic dependency.31 Furthermore, the particular dynamics of family violence may lead to a view that the victim ‘provoked’ an act of violence.32
  6. 14.43 These barriers can be faced by other vulnerable members of the community such as victims of child sexual abuse,33 victims who identify as LGBTIQ34 and Aboriginal and Torres Strait Islanders.35
  7. 14.44 Therefore, if these victims are to be considered ‘certain victims of crime’ for the purposes of the Act, then other legislative barriers, like sections 52 and 54, do currently limit the Act’s ability to fulfil its objective of providing assistance to ‘certain victims of crime’.

Do the symbolic payments under the Act adequately recognise the harm suffered by victims?

  1. 14.45 The main symbolic payment available under the Act is special financial assistance. This is a lump-sum award that is available to primary victims who suffered a significant adverse effect as a direct result of an act of violence.36
  2. 14.46 However, the phrase ‘financial assistance (including special financial assistance) as a symbolic expression’ in section 1(2)(b) suggests that special financial assistance is not the only symbolic payment available under the Act.
  3. 14.47 Awards to related victims for distress may also be considered to be a symbolic expression of sympathy, condolence and recognition. Indeed, the second reading speech to the Act as originally enacted provides that these awards may ‘be made to acknowledge the distress caused by the death of the victim’.37 Moreover, VCAT has noted that ‘the legislation does not specifically tie an award for assistance for distress to promoting recovery’.38 This may suggest that such awards are more connected to the notion of recognition under the Act’s second objective than recovery under the first objective.39
  4. 14.48 Accordingly, in reviewing whether the Act is fulfilling its second stated objective, this section considers the adequacy both of payments of special financial assistance to primary victims and distress payments to related victims.

Is the special financial assistance available appropriate?

  1. 14.49 The payment of special financial assistance to certain primary victims of crime can be an important way to express the community’s sympathy and condolences. As Freckelton writes, ‘a tangible manifestation of the state’s concern about the harm done to victims of crime also has the potential to facilitate the reintegration into the community of people damaged by the impact of criminally caused trauma’.40
  2. 14.50 However, the special financial assistance available under the Act may not always adequately recognise the harm experienced by some victims of crime.
  3. 14.51 In particular, the amounts of special financial assistance that victims can be awarded under the Act are lower than in other Australian jurisdictions. In preliminary consultations the Commission was told that the amounts of special financial assistance, especially in relation to Categories C and D, are so low that the costs awarded to an applicant’s legal representatives are sometimes higher than the special financial assistance awarded to the applicant. This can detract from the symbolic value of such payments.
  4. 14.52 Another concern is that the categories of special financial assistance under the Act do not take into account the cumulative effect of persistent and protracted violence, such as family violence.41 This is because the relevant categories are based on the severity of a single offence, rather than the overall impact of long-term abuse.42
  5. 14.53 Moreover, the ‘uplift’ provisions may not adequately recognise the vulnerability of certain victims, including child victims, elderly victims, victims with disability and victims of an act of violence perpetrated by someone in a position of power, trust or influence over them.
  6. 14.54 Without recognition of the impacts of persistent violence and the vulnerability of certain victims, the Act may be limited in its ability to express the community’s sympathy and condolences for the harms suffered by certain victims of crime.

Are the awards for distress for related victims appropriate?

  1. 14.55 Distress payments can be a useful way to acknowledge the harm suffered by related victims without them having to prove injury or connect the payment to their recovery prospects.43
  2. 14.56 However, it is possible that the symbolic value of awards for distress to related victims is limited by the fact that there is a cap on the assistance available to a pool of related victims.
  3. 14.57 The total maximum cumulative amount that may be awarded to all the related victims of any one primary victim is $100,000.44 This means that the quantum of award to an individual related victim may be significantly reduced if there are multiple related victims eligible in respect of the same act of violence.
  4. 14.58 Moreover, the total maximum cumulative amount available to a pool of related victims can be reduced by an award made for funeral expenses, even if it was made to someone who was not a related victim.45 In preliminary consultations the Commission was told that


    this can operate to significantly decrease the awards received by related victims, due to the rising cost of funeral expenses. Although the pool of assistance can sometimes be exceeded, this can only occur in ‘exceptional circumstances’.46
  5. 14.59 Issues with respect to special financial assistance and awards for distress raise questions about the Act’s ability to symbolically recognise the harm suffered by victims of crime.

Recourse to financial assistance where compensation unavailable from other sources

  1. 14.60 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.47
  2. 14.61 As discussed in Chapter 2, there are other ways that victims in Victoria can seek compensation or financial assistance following an act of violence. 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.48
  3. 14.62 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.49 However, where compensation is obtained from another source, VOCAT has a discretion whether or not to require refund of the award.50
  4. 14.63 In further support of this objective, the Act also states ‘…the making of an award of assistance does not affect the right of a person to recover from any other person, by civil proceedings, or otherwise, any damages, compensation, assistance or payments of any kind’.51
  5. 14.64 The Act also enables a victim to ‘…assign to the State their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates.’52
  6. 14.65 Money recovered by the state in the exercise of a right assigned to it in accordance with section 51(1) of the Act must be dealt with as follows:
  • an amount equal to the expended amount, or the total money recovered if it is less than the expended amount, must be paid into the Consolidated Fund; and
  • the balance, if any, must be paid to the assignor.53
  1. 14.66 The effect of this is that, where money is recovered by the state, the victim only receives the balance after the costs incurred by the state in recovering the monies are paid into the Consolidated Fund.
  2. 14.67 This ‘offender recovery’ provision in the Act does not go as far as the provisions in the former Criminal Injuries Compensation Act 1983 (Vic) which enabled the tribunal established under that Act to order an offender to refund compensation paid on application of the Director of Public Prosecutions.54
  3. 14.68 Victoria’s approach under the Act also differs from the approach of other Australian jurisdictions, such New South Wales, where the Commissioner of Victims’ Rights can make a provisional order for restitution against a convicted offender without a victim assigning their rights.55 In New South Wales, an order for restitution made against an offender may be enforced by the Commissioner as if it were an order made in civil proceedings against the offender.56 This is also separate, and in addition to, the offender levy that applies in New South Wales.
  4. 14.69 Underlying Victoria’s approach under the Act is the notion that ‘the offender or other state-funded compensation schemes are primarily responsible for compensation of victims’.57 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’.58
  5. 14.70 However, in practice VOCAT has often been the only source of compensation for many victims, rather than being a supplement to other forms of compensation.59 Yet the Act presumes that compensation or financial assistance is available to victims from the offender or other sources.
  6. 14.71 This may be problematic for some victims of crime for whom it may be impractical or unsafe to pursue other avenues of compensation. This is a particular issue for victims of family violence who may have safety concerns in relation to pursuing compensation from the offender, even where the offender has the financial means to fulfil such obligations. These concerns can also affect victims of sexual assault and victims of child abuse.
  7. 14.72 In addition, the effectiveness of VOCAT as an alternative way of accessing financial assistance if other options are unavailable is limited by the time limit of two years. This time limit provides a very small window of opportunity for victims to pursue alternative options before turning to VOCAT.

Is VOCAT an effective alternative option?

  1. 14.73 Based on the research and preliminary consultation undertaken by the Commission, a range of structural, legislative, procedural and perceived barriers appear to be limiting VOCAT for many victims as an effective alternative option for financial assistance.
  2. 14.74 There is a lack of awareness among victims regarding financial assistance available through VOCAT.60 Moreover, some victims may be hesitant to apply to VOCAT out of concern they will be viewed as attempting to ‘profit’ from their victimisation.61
  3. 14.75 There are also accessibility issues relating to the complexity of the Act, as well as the legalistic nature of the VOCAT process. These complexities mean that victims often need to engage a lawyer in order to navigate the VOCAT process.
  4. 14.76 In addition, applicants’ reliance on legal practitioners is increased by VOCAT’s broad discretions, such as in relation to the quantum of special financial assistance,62 awards to assist recovery in exceptional circumstances63 and character and behaviour considerations.64 These discretionary powers, combined with a lack of reported decisions, can result in a lack of transparency. This can cause a high degree of uncertainty as to the outcome of an application and increase applicants’ need to engage a lawyer.
  5. 14.77 The accessibility of VOCAT is also limited by the complexity of the application form and the documentation required. There may be significant costs associated with obtaining the medical and psychological reports required in relation to applications for certain expenses.
  6. 14.78 VOCAT may also not be the most effective forum for certain victims of crime due to a lack of understanding and training of decision makers in relation to issues such as family violence.65
  7. 14.79 The effectiveness of VOCAT as an alternative option for victims of crime to pursue financial assistance may be limited by delays in the making of awards. These delays can detract from VOCAT’s capacity to provide an effective alternative option for victims of crime to access financial assistance.

Complementing other government services to victims of crime

  1. 14.80 As expressly noted in the Act, the intention of the Act is to ‘complement other services provided by government to victims of crime’.66
  2. 14.81 However, whether the Act and VOCAT complement other government services raises questions about the extent to which victims are required to seek information, support and assistance from different services and agencies which may not be linked effectively.
  3. 14.82 Moreover, the fact that VOCAT is situated in the legal system, rather than the victim support system, can lead to victims having to navigate a process that is complex and not trauma-informed in order to access financial assistance.

Links with other government services for victims of crime

  1. 14.83 Government services for victims of crime aim to be ‘victim-centred’.67 However, accessing or navigating victim support in Victoria is often not straightforward. In particular, victim services are often fragmented and difficult to navigate for those without the time and resources.
  2. 14.84 As discussed at [2.145], VOCAT sits separately from other victim support services, in the legal system rather than government funded victim services.
  3. 14.85 The first consultation paper discussed the limited referral pathways between VOCAT and other government services for victims of family violence.68 For other victims of crime, pathways between government-administered victims’ services and VOCAT may be more effective. For example, research demonstrates that the most frequent referral source to VOCAT is through the Victims Assistance Program (VAP) and Centres Against Sexual Assault (CASA) services.69 Moreover, the VAP also provides help to victims to lodge a VOCAT application70 and offers support during VOCAT hearings.71 However, as discussed in Chapter 12, it would appear that only a small percentage of victims are currently accessing VOCAT support.
  4. 14.86 This may be because victims need to seek VOCAT support separately to other victim support and often need to engage a lawyer. This can break the continuity of support provided by a case manager as part of other government services and is another separate service a victim has to navigate.
  5. 14.87 The fragmented nature of the system can cause victims frustration.72 Moreover, accessing support through different forums can result in victims having to repeat their story over and over again,73 which can be re-traumatising for some victims of crime.
  6. 14.88 It is possible that VOCAT’s location in the legal system is contributing to a fragmented and complicated victim support system, limiting the scheme’s ability to meet the third objective of the Act—to complement other government services.

Question

  1. 60 Is the Act achieving its purpose and objectives? If not, in what respects?

 

Discussion and options for reform

  1. 14.89 This section of the paper sets out options for reform. It considers options to improve the current model and approach through legislative and procedural reform, including possible changes to the Act’s eligibility requirements and availability of awards, to enable the scheme to better meet the purpose and objectives of the current Act.
  2. 14.90 This section discusses changes that could be made to the existing scheme, namely the Act and VOCAT, to:
  • shift the Act’s focus from recovery to support
  • better recognise the appropriate people as victims
  • clarify the purpose and objectives of:
  • - financial assistance for expenses incurred or likely to be incurred
  • - special financial assistance or recognition payments
  • require offenders to contribute to state-funded financial assistance.
  1. 14.91 The Commission raises all of these options to prompt stakeholder consideration of the ways in which the existing scheme could be reformed to address the issues identified in this paper, and to better achieve the outcomes identified in the supplementary terms of reference. Some proposals could be implemented on their own, while others might be complementary or reliant on other proposals.
  2. 14.92 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on options to improve the current model and approach through legislative and procedural reform. Possible options for reform and questions are set out below.

Amend the Act to focus on support

  1. 14.93 The Act states that it aims 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’.74 Accordingly, most of the awards for assistance available under the Act are focused on expenses that promote victim recovery.
  2. 14.94 However, as discussed in Chapter 6, the Act’s emphasis on recovery is problematic.75 Some victims may never overcome the injuries that they suffer as a result of an act of violence. Yet, such victims may still require financial assistance for counselling or medical expenses in order to have support, reduce pain, help ensure stability or promote their quality of life.
  3. 14.95 The notion that all victims can recover from the effects of crime, and the provision of state-funded financial assistance is only for the purpose of recovery, may not accord with some victims’ lived experiences of crime. It may also perpetuate the view that there is something wrong with victims who suffer a permanent disability or ongoing mental disorder or illness as a result of an act of violence.
  4. 14.96 Accordingly, it may be more appropriate for the Act to aim to provide support to victims rather than to focus on recovery.
  5. 14.97 The New South Wales victim assistance legislation frames the object of its victim support scheme around the notion of ‘support’ rather than ‘recovery’. The stated object of Part 4 of the Victims Rights and Support Act 2013 (NSW) is to ‘establish a scheme for the provision of support to victims of violence’.76 This formulation is more inclusive, as it aims to offer assistance to victims of violent crime, whether or not they are able to ‘recover’.

Question

  1. 61 Should the focus of the Act be on supporting victims of crime rather than on assisting their recovery? If so, what changes should be made to the Act?

 

Recognising the appropriate people as victims

  1. 14.98 As discussed earlier in this paper, it seems that not all victims are treated equally under the Act. While there may be sound policy objectives for this differential treatment under some circumstances, the operation of the Act can also fail to recognise and acknowledge other victims.
  2. 14.99 These circumstances were outlined in detail in Chapters 6 and 8 in relation to the categories and quantum of awards, and the mandatory considerations required under the Act for an award to be made.
  3. 14.100 One option for reform is to amend both the eligibility requirements and relevant considerations of the decision maker under the Act so that appropriate people can be recognised as victims under the Act.
  4. 14.101 For example, this could mean victims of crime are not deemed ineligible for assistance because of character or behaviour considerations unrelated to the circumstances of their victimisation. Past criminal activities, use of drugs and alcohol and other lifestyle factors might be irrelevant considerations when making a determination.
  5. 14.102 Another option could be to recognise the changing nature and evolving understanding of ‘violence’ by establishing a scheme that incorporates and accepts broader notions of ‘victimisation’ including forms of violence not previously identified or acknowledged by the Act such as family violence, forms of psychological and financial abuse and non-contact sexual offences.
  6. 14.103 The scheme could also recognise a wider range of victims and victimisation experiences—including children who hear, witness or are otherwise exposed to violence; people who assist in the aftermath of an act of violence; family members who are injured by becoming aware of the act of violence; and family members who do not constitute ‘close family members’ under the ‘related victims’ category.

Question

  1. 62 Does the Act recognise appropriate people as victims? If not, what changes should be made to the Act to better recognise appropriate people as victims? Are there circumstances where some victims should not be recognised by the scheme? If so, in what circumstances?

 

Amend the Act to remove the focus on ‘certain victims of crime’

  1. 14.104 The idea that only certain victims of crime are entitled to financial assistance as symbolic expression of the community’s sympathy, condolence and recognition appears to be underpinned by a philosophy that some victims are ‘innocent’ or ‘deserving’, while others are not.77
  2. 14.105 It has been suggested that the notion of ‘deserving’ victims complements the criminal justice system by encouraging crime reporting78 and rewarding victims for compliant behaviour.79
  3. 14.106 However, as Miers writes, the distinction between ‘deserving’ and ‘undeserving victims’, or indeed ‘victims’ and ‘offenders’, is:

factually problematic because the reality of criminal victimization is that many victims have also been offenders and that in particular incidents it may be a matter of chance as to which of two protagonists the criminal justice process subsequently labels the ‘victim’.80

  1. 14.107 It is possible that denying financial assistance to victims because of criminal history or substance abuse issues may in fact perpetuate offending behaviour, rather than discourage it. This is because without financial assistance to access counselling and other required services, victims may continue to use drugs or alcohol, increasing their likelihood of engaging in criminal activity.81 This may further entrench the cycle of victimisation and offending.
  2. 14.108 In addition, awarding financial assistance to certain ‘deserving’ victims of crime only may further entrench other forms of disadvantage due to there being a correlation between higher offending rates and lower socio-economic status.82
  3. 14.109 Victoria and Queensland83 are the only Australian jurisdictions to make reference to ‘certain victims of crime’ in the purpose and objects section of their victims’ assistance legislation. Other jurisdictions do, however, limit the scope of their legislation by making reference to victims of ‘violent acts’84 or ‘acts of violence’,85 rather than victims of crime generally. Moreover, the Queensland Act explicitly states that payments of assistance as a symbolic expression are limited to ‘primary victims’ and ‘related victims’.86
  4. 14.110 Victoria could adopt a similar approach by removing the reference to ‘certain victims of crime’ from section 1(2)(b) and instead limiting the scope of its second stated objective in other ways, such as through reference to the eligibility criteria in the Act for financial assistance generally, or specifically for symbolic payments.

Question

  1. 63 Is it appropriate under the Act that only ‘certain victims of crime’ are entitled to financial assistance as a symbolic expression of the community’s sympathy, condolence and recognition? If so, how should this be expressed in the Act?

 

Reconceiving financial assistance and special financial assistance

  1. 14.111 In Victoria, lump-sum payments are available for certain victims under the special financial assistance provisions.87 Special financial assistance is a lump-sum award that is made as ‘a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime’.88
  2. 14.112 The current legislative articulation of special financial assistance retains the terminology of assistance, despite its practical application as a recognition payment. This is in contrast to the articulation of lump-sum payments in other jurisdictions which are distinguished from categories of award for assistance or expenses.
  3. 14.113 Both the New South Wales and Australian Capital Territory schemes provide for ‘recognition payments’.89 Such lump-sum payments provide explicit acknowledgment by the state of the harm suffered by victims. In this way, such recognition payments are more consistent with the previous provision of awards for ‘pain and suffering’ under Victoria’s legislation prior to the introduction of the current Act.
  4. 14.114 In considering options for reform, one option is to amend the Act to distinguish between financial assistance (for expenses) and lump-sum payments which recognise the harm caused by a crime and are a symbolic gesture on behalf of the community and the state. This option could be complemented by amending the special financial assistance categories to better take into account the cumulative harm of a series of related criminal acts, and increasing the amount of special financial assistance so that ‘recognition’ payments more adequately recognise the harms caused.
  5. 14.115 If payments for financial assistance and recognition were to be distinguished, financial assistance for reasonable expenses could be integrated with the existing victim support system, while special financial assistance payments could be replaced with ‘recognition payments’. Recognition payments could remain part of a judicial system, through VOCAT. Alternatively, they could be incorporated within a quasi-judicial system whereby decisions or hearings are conducted by a decision maker independent of government, such as a victims’ commissioner. Further discussion of decision makers is outlined below.

Question

  1. 64 Would ‘special financial assistance’ be better classified as a ‘recognition payment’ like in the New South Wales and Australian Capital Territory schemes?

 

Requiring offenders to contribute

Victim levy

  1. 14.116 The Consolidated Fund of the State of Victoria (consolidated revenue) pays for VOCAT’s operating costs as well as the costs of awards made under the Act.90
  2. 14.117 Although VOCAT is intended to be a financial assistance option of last resort, in practice, it is often the most practical route for a victim of crime to pursue. This is because most offenders will not have the means to pay a compensation or restitution order made under the Sentencing Act or to pay compensation as the consequence of a civil claim.
  3. 14.118 In recognising that state-funded financial assistance is likely to be the most practical option for many victims, other jurisdictions have established ways to fund their victim compensation scheme from sources other than consolidated revenue.
  4. 14.119 For example, a number of jurisdictions have implemented victims’ levies to supplement the funding of their financial assistance schemes.
  5. 14.120 New South Wales imposes a Victims Support Levy of $74 for summary offences and $166 for indictable offences on convicted offenders.91 The levy contributes to the Victims Support Fund and is imposed automatically under the Victims Rights and Support Act 2013 (NSW), rather than a penalty imposed by a court.92
  6. 14.121 The Australian Capital Territory imposes a $50 victims’ services levy to provide a source of revenue to improve services for victims of crime on an adult who is convicted of an offence and ordered by a court to pay a fine.93 The victims’ services levy is in addition to, and does not form part of, the fine.94
  7. 14.122 In South Australia, the Victims of Crime (Fund and Levy) Regulations 2003 (SA) impose a levy of up to $160 for a summary offence and $260 for an indictable offence.95
  8. 14.123 There are equivalent international examples of victims’ levies. Alberta (Canada) has a Victims of Crime Fund established by statute. The fund collects money from a range of sources, including victim fine surcharges.96 Ontario (Canada) also has a Victims’ Justice Fund collected from court-imposed fines.97
  9. 14.124 The Victims Support Levy in NSW contributed $9.52 million in 2015–16 towards the Victims Support Fund.98 If applied in the Victorian context, $9.52 million is close to 20 per cent of the $46.3 million awarded by VOCAT during the 2015–16 financial year.99
  10. 14.125 To improve the operation and long-term sustainability of the financial assistance scheme, one option is to introduce a legislatively prescribed victim levy as in New South Wales, South Australia and the Australian Capital Territory. As well as providing an additional source of funding, there is evidence to suggest that victims prefer to receive compensation from offenders than the state.100 While this option would not see individual perpetrators compensate victims, it would reassure victims that convicted offenders are repairing harm to victims of crime in some way.

Offender recovery

  1. 14.126 As discussed earlier in this chapter, the Act also enables a victim to ‘assign to the State their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates.’101 This provision relies on a victim electing to assign their right to the state, rather than the state being able to pursue offenders automatically to contribute to the costs of an award of assistance made under the Act.
  2. 14.127 During preliminary consultations the Commission was not advised of the practical operation of this provision. This may be because the provision relies on a victim electing to assign their right to the state and this may not be practical for many victims, particularly as victims are unlikely to be aware of this right. Furthermore, and as discussed in detail in Chapter 2, in many cases, offenders do not have the means to pay or victims may be unwilling for proceedings to be initiated against an offender for safety reasons.
  3. 14.128 The Commission notes academic concerns about ‘offender recovery’ mechanisms in relevant Australian jurisdictions’ financial assistance legislation due to victim safety and wellbeing concerns, particularly with respect to victims of family violence.102 In addition, the practical difficulties of recovery monies have been noted in jurisdictions where offender recovery is pursued, difficulties which include:103
  • that the majority of offenders are generally from lower socio-economic backgrounds and do not have accumulated assets
  • that many offenders are unemployed for significant periods of time or may be incarcerated and thus have limited ability to pay
  • that many offenders are difficult to locate to enforce debts.
  1. 14.129 Barrett Meyering notes that mechanisms for offender compensation and reparation generally sit parallel to statutory victim compensation schemes and ‘the two should not be confused with one another’.104 Nonetheless, Barrett Meyering also notes that most Australian states and territories’ relevant victim compensation or financial assistance schemes have provision for making recovery orders against offenders.105
  2. 14.130 In New South Wales, for example, the Commissioner of Victims Rights can make a provisional order for restitution against a convicted offender,106 which may be enforced as if it were an order made in civil proceedings.107 This is also separate, and in addition to, the offender levy that applies in New South Wales. New South Wales’ Victims Services states that the purpose of such offender recovery provisions ‘…is to place responsibility on offenders to contribute to assisting victims in recovering from the act of violence’.108
  3. 14.131 Barrett Meyering states that ‘while the concept of perpetrator accountability is attractive in theory, the impact of making recovery orders on victims’ experiences of the compensation process needs to be carefully weighed.’109 Furthermore, Barrett Meyering notes the safety concerns, particularly for family violence victims, where recovery orders might be made.110 In recognition of these safety concerns, the Australian Capital Territory’s Victims of Crime Commissioner must not take, or continue, recovery action without taking into account the objective risks to the safety of any person, and the subjective concerns of an assisted person, about the Commissioner’s contact with an offender or recovery action generally.111
  4. 14.132 Beyond safety considerations, the efficiency of such recovery processes needs to be carefully considered. For example, in New South Wales, 2454 provisional orders for $20.06 million were issued in 2015–16, out of which only 48 were paid in full.112 To enforce such orders, Victims Services must work with the State Debt Recovery Office.113
  5. 14.133 Nonetheless, $4.37 million was recovered during the 2015–16 financial year from such restitution processes which, in addition to victim levies, provided almost $15 million to the New South Wales financial assistance scheme in 2015–16.114
  6. 14.134 Many of the safety concerns regarding offender recovery mechanisms may not apply in Victoria, as the Act requires a victim to elect to assign their right to the state under section 51 of the Act. Victims who did not want the offender pursued because of safety or wellbeing concerns would be unlikely to elect to assign their rights to the state. However, the Commission is unaware of whether victims do elect to assign these rights to the state, and if so, the operational implications of such assignment.
  7. 14.135 Given the supplementary terms of reference require the Commission to consider that the state-funded financial assistance scheme must be efficient and sustainable for the state, consideration needs to be given to the practical operation of such offender recovery mechanisms, and the appropriateness of such provisions as part of a state-funded financial assistance scheme.
  8. 14.136 Accordingly, the Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on the current operation of section 51 of the Act, and the appropriateness of ‘offender recovery’ as a component of a state-funded financial assistance scheme.

 

Questions

  1. 65 What is the practical operation of section 51 of the Act which enables a victim to assign their rights to the state to recover from the offender? Should a state-funded financial assistance scheme retain ‘offender recovery’ provisions as a parallel process to other reparation mechanisms?
  2. 66 Should Victoria’s state-funded financial assistance scheme be amended to include a victims’ levy payable by offenders? If so, how and on whom should the levy be imposed?

 

Footnotes

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