1 On 22 December 2016, the Attorney General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission (the Commission) to review and report on the provision of state-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996 (Vic) (the Act). The terms of reference ask the Commission to consider five specific matters raised by the Victorian Royal Commission into Family Violence (the Royal Commission). These are outlined below. In this consultation paper, the Victorian Royal Commission will be referred to as the Royal Commission, unless the context otherwise requires.
2 The Act established the Victims of Crime Assistance Tribunal (VOCAT) which determines applications for financial assistance. The operation of the Act and VOCAT are the main focus of this consultation paper.
3 Key issues raised by this reference are outlined below. Detailed discussion of these key issues is in Parts Two and Three of this consultation paper. Part One provides background and contextual information only, and does not raise specific consultation questions.
Eligibility for assistance
4 The terms of reference ask the Commission to consider the eligibility test and whether this should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury. This is discussed in detail in Chapter 6.
5 A person is eligible for financial assistance under the Act if they are the ‘primary’, ‘secondary’ or ‘related’ victim of an ‘act of violence’ that directly results in their suffering injury, death or a significant adverse effect.
6 Different categories of victims are eligible for different kinds of assistance. However, in all cases there must have been an ‘act of violence’. Under the Act, an act of violence is defined as a ‘criminal act’ or ‘a series of related criminal acts’ that occurred in Victoria and that ‘directly resulted in injury or death to one or more persons’. Criminal acts include assault, injury, threats, sexual offences, stalking, child stealing, kidnapping, conspiracy and attempts of these offences. The act of violence must directly result in injury, that is, actual physical bodily harm, mental illness or disorder (or exacerbation of) and pregnancy. ‘Injury’ does not include injury arising from property loss or damage.
7 Additional financial assistance can also be claimed if a victim has suffered a ‘significant adverse effect’, defined as any grief, distress, trauma or injury as a direct result of the act of violence. This is described as ‘special financial assistance’ in the Act.
8 The main issues facing victims of family violence with respect to the eligibility criteria are the definition of ‘act of violence’, the definition of ‘injury’, causation and the victim categories.
9 The act of violence requirement means that victims of family violence are only able to access financial assistance if they have experienced physical or sexual violence, a threat of injury, or stalking. Victims of non-criminal forms of family violence, such as economic, emotional and psychological abuse are excluded, as are victims of family violence that is criminal in nature but not an offence against the person. The definition of act of violence is much narrower than the definition of family violence in the Family Violence Protection Act 2008 (Vic).
10 Another potential barrier for victims of family violence is the definition of injury. If a victim of family violence has not suffered physical injury or does not suffer from a mental disorder or illness, they may be ineligible for assistance. There are cases where victims of family violence, who have experienced significant mental harm, have had their applications refused because they do not suffer from a recognised mental illness or disorder.
11 Victims of family violence can also encounter difficulties in establishing that their injury was a direct result of the act of violence, particularly if there may be other contributing factors.
12 In addition, the distinction between primary, secondary and related victims can be problematic for child victims of family violence. Children who experience family violence can suffer severe psychological and developmental trauma and consequences. This is equally the case for child victims who are the direct subject of the violence and those who hear, witness or are otherwise exposed to it. However, under the Act, this second group of child victims are not recognised as primary victims. This not only has the potential to fail to acknowledge and recognise their experience of family violence but it also affects the categories and quantum of awards that they receive.
13 To address the above issues, the Commission will consider whether family violence could be defined in the Act and whether the Act could be amended to expand the range of injuries covered by it. Alternatively, or additionally, the Commission will consider whether the Act could be amended to include a broader range of injuries for victims of family violence or to remove the requirement for proof of injury for victims of family violence.
14 The terms of reference ask the Commission to consider, within the total financial assistance available, the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims. This is discussed in detail in Chapter 7.
15 The Act limits the amount of assistance that can be awarded to a particular victim. The maximum award for primary victims is $60,000 plus $10,000 of special financial assistance. The maximum award for secondary victims and any one related victim is $50,000. There are different categories of award available to primary, secondary or related victims.
16 There are three main categories of award that primary victims can access—expenses actually incurred or reasonably likely to be incurred; in exceptional circumstances, an amount for other expenses actually incurred or reasonably likely to be incurred to assist in recovery; and special financial assistance.
17 Special financial assistance is a lump sum awarded as a symbolic expression by the state of the community’s sympathy and recognition of harms suffered. Special financial assistance is classified into four categories, A, B, C and D, based on the severity of the act of violence, with Category A covering the most serious offences and Category D the least.
18 Related criminal acts can be treated as a single act of violence, which can limit awards available to some victims of crime.
19 The main issues facing victims of family violence, including child victims, with respect to the financial assistance available are the related criminal acts provision and the categories of special financial assistance.
20 The related criminal acts provision can disproportionately reduce the awards for victims of family violence, including child victims, because family violence often involves repeated acts of abuse by the same offender, which is a factor relevant to whether acts are considered related.
21 Concerns have also been raised that the special financial assistance categories do not sufficiently take into account the cumulative harm of individual acts of violence because the relevant categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.
22 To address the above issues, the Commission will consider whether the related criminal acts provision and the special financial assistance categories could be amended. This could involve adding further criteria when assessing related acts, excluding family violence from the operation of the related criminal acts provision entirely, or amending the Act so that only acts of violence committed at the same time are considered related.
23 The Commission will also consider how the Act could be amended to take into account the cumulative harm of family violence, including to children, by amending the special financial assistance categories to enable a higher award for a series of acts of family violence. Another option is to incorporate a ‘pattern of family violence’ into one of the higher categories. The Commission will also consider adopting separate categories for family violence or removing the categories of special financial assistance entirely, enabling VOCAT to consider family violence and other factors to determine awards up to the maximum amount.
Form and timing of applications
24 The Royal Commission specifically identified the time limit for making an application as a potential barrier for victims of family violence. This is discussed in detail in Chapter 8.
25 An application for assistance to VOCAT must be made in writing in the prescribed form within two years of the act of violence occurring. VOCAT is obliged to strike out applications made outside this two-year time limit, unless they consider it appropriate not to strike the application out.
26 Concerns were raised that the VOCAT application form is tailored towards victims of a one-off act of violence making it difficult for victims of family violence to complete. The application time limit was also raised as a significant barrier.
27 It can take victims of family violence a long time to disclose their experiences of family violence. The reasons for this are varied and complex. The fact that it may take a victim of family violence longer to lodge an application for assistance means that the time limit of two years can have a disproportionate impact on their eligibility.
28 To address these matters, the Commission will consider how the application form could be made more accessible for victims of family violence by using language that is not confined to singular acts of violence. The Commission will also consider how the Act could be amended to remove difficulties in relation to the time limitation, such as increasing the time limit for applications relating to family violence or making family violence an explicit factor that VOCAT must consider when making a decision about whether or not to strike out a late application. A further option is to remove the time limit for victims of family violence.
29 The terms of reference require the Commission to consider the requirement to notify a perpetrator, especially where the matter has not been reported to police, or no charges have been laid, or the prosecution is discontinued or the person is acquitted. This is discussed in detail in Chapter 9.
30 Under the Act, VOCAT may give notice of a hearing to any other person whom it considers to have a legitimate interest in the matter, including an alleged perpetrator who may also elect to appear at a hearing. Some procedural protections already exist for victims in these circumstances under the Act. VOCAT has issued a Practice Direction on the procedure to be followed in these circumstances.
31 VOCAT may also determine an application without a hearing.
32 The main issue raised concerns notification of alleged perpetrators, due to the safety risks that commonly arise in applications involving family violence.
33 Alleged perpetrators are sometimes notified and may participate in proceedings. This can be a deterrent for victims of family violence to apply to VOCAT.
34 Given these issues, the Commission will consider whether the Act could be amended to remove the notification provision, either entirely or specifically for vulnerable victims, such as family violence victims. However, this consideration also raises concerns about procedural fairness.
35 Another option is to amend the Act to explicitly list the safety concerns associated with family violence as a factor VOCAT must have regard to when considering whether to notify an alleged perpetrator, as well as strengthening existing evidentiary and procedural protections.
Making an award
36 The terms of reference require the Commission to review the matters giving rise to refusal of an application for financial assistance except in special circumstances. These matters are outlined in sections 52, 53 and 54 of the Act. This is discussed in detail in Chapter 10.
37 Under section 52 of the Act VOCAT must refuse to make an award if an act of violence was not reported to police within a reasonable time or the applicant failed to provide reasonable assistance to police or prosecution, unless special circumstances exist.
38 Section 54 of the Act also requires VOCAT to consider a number of other specified matters including the character, behaviour (including past criminal activity) and attitude of the applicant before, during and after the act of violence. This includes any provocation or ‘condition or disposition’ of the applicant that may have contributed to the injury. These are sometimes referred to as ‘contributory conduct’ or ‘provocation’ clauses. VOCAT must also consider whether a perpetrator will benefit from the award.
39 The main issues raised relate to the requirements to report to police, to assist police and prosecution, the contributory conduct and provocation clauses, and the perpetrator benefit provisions. Many of these provisions have complex case law interpretation of the Act.
40 In determining whether an act of violence was reported to police within a reasonable time, case law indicates differing interpretations of what is considered a reasonable time for reporting and also differing interpretations of what might result in special circumstances mitigating a delay in reporting. This can lead to uncertainty in cases of family violence where a delay in reporting to police is often a characteristic.
41 In relation to whether a victim provided reasonable assistance to police or prosecution, there are no prescribed positive actions a victim must undertake. However, guidance in the VOCAT application form indicates victims must report the matter to police, make a formal report and sworn statement. Due to the nature and dynamics of family violence, these requirements can be problematic for victims of family violence.
42 Special circumstances can mitigate a failure to provide reasonable assistance to police and prosecution. However, special circumstances require something out of the ordinary and some case law decisions have emphasised family violence is a common circumstance.
43 In addition to the above issues, contributory conduct clauses have been criticised as victim blaming in family violence cases and the Act provides no guidance about what might be considered as resulting in a benefit to the perpetrator.
44 These issues together raise concerns that the Act fails to recognise the dynamics and characteristics of family violence. To address this, the Commission will consider how the Act could be amended to recognise family violence for the purposes of sections 52, 53 and 54.
45 Suggestions include an overarching provision which enables, or requires, VOCAT to consider the nature and dynamics of family violence when making a determination, exempting victims of family violence from some of the considerations under these provisions, or amending specific provisions to more explicitly reference family violence.
VOCAT procedures and time frames
46 The terms of reference require the Commission to consider procedural matters to expedite the making of an award. This is discussed in detail in Chapter 11.
47 VOCAT must act ‘expeditiously’ (that is, promptly) to determine applications. Close to 50 per cent of all VOCAT applications are finalised within nine months.
48 After receiving relevant documentation, VOCAT may determine an application with or without conducting a directions hearing or a final hearing, depending on the preference of the applicant, as well as the Tribunal’s need for a hearing. In practice, many straightforward applications are decided without the need for a hearing. More complex cases are usually determined at a hearing.
49 The main issue raised in relation to time frames relates to the fact that although VOCAT must act promptly, it must also have regard to matters that can sometimes affect the time it takes to finalise an application, including awaiting the outcome of a criminal investigation, trial or inquest. The Tribunal has also observed an increase in the complexity of applications, particularly relating to family violence which impacts timeliness.
50 Delays in determining VOCAT applications relating to family violence can have profound impacts on victims. Financial hardship can be a significant consequence of family violence and the economic impacts of family violence can impede a victim’s ability to leave an abusive relationship and obtain safety.
51 In considering procedural matters to expedite the making of an award, the Commission will consider options such as case triaging, development of a Practice Direction to clarify some more complex provisions of the Act, a separate family violence stream and VOCAT specialisation for magistrates.
52 The Commission will also consider the benefits of administrative models where commissioners or government assessors make determinations, as well as the connection between VOCAT and other support agencies. Consideration is also given to how interim awards could better reflect the administrative and case management processes used in making other awards of assistance, such as family violence flexible support packages which are administered by government-funded community organisations.
Review, variation and refund of awards
53 Although limited data and information is available with respect to review and refund of awards, variation has been raised as a concern for family violence victims. Review, variation and refund of awards is discussed in Chapter 12.
54 VOCAT has broad discretion to vary awards, although variations must be consistent with the Act. For example, an award must still assist a victim’s recovery from the act of violence.
55 In 2015–16, VOCAT varied 986 awards for expenses already incurred and 588 for expenses not yet incurred.
56 The main issues raised concern variation of awards. Family violence victims frequently require variations, particularly in relation to additional counselling. The variation process is not always easy and can be complicated by the need to repeatedly engage a lawyer.
57 At the same time, variation allows VOCAT to assist victims as their needs and circumstances change.
58 The Commission will consider the usefulness of award variations in addressing the specific needs of family violence victims and what, if any, barriers may have been experienced by victims during the variation process.
VOCAT awareness and accessibility
59 Concerns have been raised that there are relatively few VOCAT applications compared to the number of reported incidents of family violence in Victoria. This raises issues of awareness and accessibility of VOCAT. This is discussed in detail in Chapter 13.
60 Although there is limited data available which provides a comprehensive picture of the number of family violence victims who use VOCAT, the Royal Commission found that some victims were unaware of their eligibility under the Act.
61 The Act has also been described as complex and difficult for victims to understand. A victim’s experience of VOCAT is therefore likely to be enhanced by victim support and the availability of legal representation.
62 Although VOCAT has close links with support agencies, these support mechanisms are not integrated with VOCAT. Some Australian states and territories have combined victim support and compensation/financial assistance schemes which aim to connect information, support and financial assistance.
63 The Commission raises issues of awareness and accessibility to determine whether other changes or reform might be required to support possible legislative change.
64 The Commission will consider how aspects of the current system work together, including VOCAT, lawyers, victim support and family violence services, and how better integration might improve knowledge about and accessibility of the service for victims of family violence.
VOCAT—beyond financial assistance
65 Financial assistance and compensation go beyond monetary benefits—they can make a statement to the community about the unacceptability of family violence and the process itself can help recognise a victim’s experience.
66 However, at the time of the introduction of the Act, in 1996, there was little community acknowledgment of family violence or its harms. As such, family violence is not explicitly recognised under the Act.
67 These issues are discussed in detail in Chapter 14.
68 The main issues raised relate to the potentially therapeutic aspects of VOCAT and the Act’s lack of recognition of family violence.
69 Victoria is one of the few Australian jurisdictions that uses judicial decision makers. For some victims, this provides an acknowledgment from the justice system that there has been a crime and that they have suffered harm. However, research has found that this is not the experience of all victims of crime. The Commission has been advised that one of the reasons the VOCAT process can be retraumatising for victims is because it is not a trauma-informed process.
70 In addition, the Act’s failure to recognise family violence—or to conceive of family violence itself as an act of violence—remains one of the fundamental challenges of ensuring the Act appropriately responds to harms caused by family violence.
71 To address these issues, the Commission will consider how trauma-informed practice could underpin any possible changes to the Act or VOCAT procedures. Consideration could also be given to how VOCAT could be more integrated with the support system, particularly given the models in other jurisdictions that combine compensation and victim support.
72 The Commission will also consider how broader recognition of family violence could be incorporated in the Act, such as a general provision acknowledging the dynamics of family violence and re-envisaging the Act as applicable in circumstances involving some forms of family violence. This would need to closely mirror any potential changes to eligibility under the Act.
Fulfilment of the purpose and objectives of the Act
73 The purpose of the Act is to provide assistance to victims of crime. The Act also has a number of further objectives, discussed in detail in Chapter 14.
74 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’. The Commission considers that a number of provisions of the Act make it difficult for the Act to assist family violence victims to recover from crime. These include the eligibility criteria, the quantum generally awarded in family violence matters, application time limits, perpetrator notification provisions, requirements to report to and assist police, as well as VOCAT delays.
75 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’. The Commission considers that although victims of family violence are sometimes determined to be ‘certain victims’ under the Act, the special financial assistance categories may not sufficiently take into account the cumulative harm of individual acts of violence because the categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.
76 Overall, the Commission will consider a range of structural, legislative, procedural and perceived barriers currently limiting VOCAT’s ability to assist victims of family violence to recover, thereby impacting the Act’s fulfilment of its purpose and objectives.
77 To enable the Act to better fulfil its purpose and objectives, the Commission will also consider how the Act can provide for:
• recognition of a broader definition of family violence—beyond the notion of a single act of violence and potentially incorporating non-violent forms of abuse
• recognition of the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence in a family violence context
• acknowledgment of the difficulties faced by family violence victims in reporting to police, assisting prosecution and applying for assistance, without applying prescriptive time frames
• prioritisation of a victim’s safety and wellbeing and a trauma-informed approach
• more timely access to financial assistance at the point of crisis and better integration with existing supports
• more flexibility and adaptability as circumstances change, without further burdening victims with having to continue to access lawyers in order to obtain support such as counselling.