Contempt of Court: Report

Preface

The genesis of this report was a reference to the Commission by the Victorian Attorney-General, the Hon. Martin Pakula MP, in December 2016 that asked the Commission to review the provision of state-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996 (Vic). The Commission was asked, in particular, to consider specified matters raised by Recommendation 106 of the Victorian Royal Commission into Family Violence. Then, in July 2017, supplementary terms of reference were issued by the Attorney-General, expanding the reference to consider the effectiveness of the Victims of Crime Assistance Act 1996 (Vic) and the Victims of Crime Assistance Tribunal for all victims, including family violence victims. This was a substantial broadening of the first terms of reference. In particular, the supplementary terms of reference asked the Commission to consider whether ‘there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model’.

This the Commission has done. As is its hallmark, in fulfilling the reference, the Commission has consulted widely, including with the general community, victims, stakeholders, academics, the legal profession and relevant courts and tribunals. The result of the Commission’s consultations, research and consideration is this report.

The Commission has given particular attention to the present process of victim assistance in Victoria, both in itself and in the wider context of the developing understanding and recognition of the proper rights and needs of victims. The Commission has concluded that that understanding and recognition requires a new process in Victoria of state-funded assistance for victims of crime, removed from the court process and from the present Victims of Crime Assistance Tribunal.

Accordingly, the principal recommendation of this report is that the Victims of Crime Assistance Act 1996 (Vic) should be repealed, and be replaced with an Act establishing a new state-funded financial assistance scheme for victims of crime, separate from the court and tribunal system, and instead sited within the Office of the Victims of Crime Commissioner, in a significantly expanded role of the Commissioner. As is appropriate for a recommendation of a new scheme, the report spells out in detail the purposes and procedures of the recommended scheme and considers its sustainability for the State.

The Commission acknowledges the ready cooperation of the Victims of Crime Assistance Tribunal and of the Magistrates’ Court of Victoria in the reference, and thanks the Tribunal and the Court for their participation. The Tribunal and the Court, together with the Children’s Court of Victoria, made a valuable submission to the Commission, in which a number of reforms were proposed. Those reforms if implemented would constitute significant improvement to the present system. However, the Commission considers that contemporary understanding of victims’ rights and needs has moved beyond the present Victorian system even in a reformed model and that a new setting and a new start is required.

The Victims of Crime Assistance Act 1996 (Vic) predicates Victoria’s state-funded assistance scheme for victims of crime as a corollary to the criminal trial process and acts through judicial decision makers. Victims frequently consider their path to assistance is through an adversarial process, with the spectre of perpetrator involvement. In the past twenty years, understanding of the lasting impacts of criminal acts on victims—and the need for appropriate, trauma-informed and therapeutic early interventions to assist victims in dealing with those impacts—have developed significantly. Understanding who is a victim of a criminal act, and what constitutes a criminal act, likewise has developed. Properly understood, the test for victim assistance proposed by the Commission—that there was a criminal act which caused harm to the victim—does not involve a finding of who committed the crime. In deciding victim assistance, there is no finding of guilt about an alleged perpetrator, which is a matter for the courts.

In 2016, the Commission published a major report, The Role of Victims of Crime in the Criminal Trial Process, which recommended that the role of victims should be understood, and acted upon, by reference to contemporary knowledge about the rights of victims, and not embedded in the past. The present report progresses that path. It is informed by contemporary understanding that all victims of crime should properly be acknowledged, respected and supported.

I express my warm thanks to all those who have participated in this reference; and to my fellow Commissioners and the research team led by team leader Anna Beesley and supported by policy and research officers Claire Gallagher and Alexia Staker and research assistant Claerwen O’Hara and other Commission staff who contributed to this reference.

I commend the report to you.

The Hon. Philip Cummins AM
Chair, Victorian Law Reform Commission

July 2018

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