Victims of Crime Assistance Act 1996: Report (html)
3. The history and purpose of state-funded financial assistance for victims of crime
Introduction
3.1 The provision of compensation to victims of crime is not new—legal systems as far back as ancient Babylon have provided for payment of restitution to crime victims.[1]
3.2 In Victoria, the Crimes Act 1958 (Vic) as originally enacted enabled offenders to be ordered to pay compensation to victims.[2] However, as discussed in Chapter 4, such schemes depend on an offender having the ability to pay. Where an offender has no financial means, as is often the case, a victim will receive nothing.
3.3 In the early 1960s and 1970s, with what Professor Ian Freckelton described as ‘the dawning of awareness of the impact of criminal offences … upon victims’,[3] statute-based state-funded financial assistance schemes for crime victims began to emerge. The first scheme appeared in New Zealand in 1963, followed by Britain, Canada and the United States.[4]
3.4 In Australia, the first scheme was introduced in New South Wales in 1967.[5] Five years later, Victoria’s first scheme was established with the introduction of the Criminal Injuries Compensation Act 1972 (Vic).
3.5 As noted by David Miers, today such schemes are a feature of many common law countries.[6]
3.6 Despite the prevalence of such schemes, their justifications are not well defined, or uniform.[7] Rationales for the establishment of such schemes are varied, and as Matthew Hall notes, include that they are ‘an extension of the welfare state’, redistribute the costs of crime across the community, and increase victim cooperation with the criminal justice system by encouraging the reporting of crime.[8] State-funded financial assistance schemes can also be explained as a response to the victims’ rights movement and advocacy for the better recognition of victims’ needs.[9]
3.7 Some academics suggest these types of justifications are ‘unconvincing’, concluding that such schemes are often established because of public controversy regarding violent crime and public campaigns demanding state assistance for crime victims.[10]
3.8 As a consequence, many schemes contain ‘vague statements of their theoretical justification’.[11]
3.9 Nevertheless, as academics have recognised, the emergence of state-funded financial assistance schemes marked a new phase in the provision of support for victims of crime, involving the introduction of specialist bodies and tribunals to assess victim compensation claims.[12]
3.10 By the early 1990s, as Freckelton notes, the operational costs of many schemes were beginning to be questioned.[13] The number of claims lodged and the amounts of compensation paid had grown enormously, raising concerns about long-term sustainability.[14] During this period, the schemes were also described as ‘increasingly legalistic and expensive’ and plagued with technical difficulties and delays.[15]
3.11 In response to concerns about scheme sustainability, some jurisdictions introduced ‘tariffs’ to quantify the amount payable for injuries, or redefined the types of injury that were compensable.[16] Other jurisdictions tightened scope and compensation levels.[17] The reforms during this period have been described as a ‘backlash against the expenditure involved in state funding of criminal injuries compensation schemes’.[18] In Victoria, this was demonstrated by the introduction of the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) which removed state-funded compensation for ‘pain and suffering’ for victims.
3.12 The end of the 1990s saw what Freckelton described as a ‘re-adjustment’ phase.[19] This included, in Victoria, the enactment of the Victims of Crime Assistance (Amendment) Act 2000 (Vic), which introduced awards of ‘special financial assistance’ for victims of crime ‘who suffer significant adverse effects as a direct result of an act of violence’.[20] As discussed in Chapter 4, this amending legislation did not reinstate state-funded compensation for pain and suffering.
Contemporary statutory financial assistance and compensation schemes for victims of crime
3.13 As a consequence of the above waves of reform, there is now a ‘remarkably disuniform’ victim compensation landscape across Australia.[21] While all Australian states and territories have state-funded financial assistance schemes for victims of crime, the way the schemes operate and are administered differs between jurisdictions.[22]
3.14 Many Australian schemes are now beginning to recognise broader notions of ‘violence’ and ‘victimisation’, and to acknowledge different types of crime and their effects. A number of Australian schemes have recently been reformed to recognise that:
• there are forms of violence not previously identified or acknowledged by the community and the justice system that should be recognised by relevant compensation schemes
• trauma-informed processes and therapeutic outcomes might not be compatible with legal processes
• impacts on victims of crime are varied, as are victims’ needs.[23]
3.15 For example, in Queensland, non-criminal family violence behaviours including psychological and emotional abuse, economic abuse and threatening behaviours are now considered an act of violence for the purposes of that state’s victim compensation scheme.[24]
3.16 As discussed in Chapter 2 there has also been a shift away from court- or tribunal-based systems to the provision of case management and therapeutic interventions alongside financial assistance. This is the approach in the Australian Capital Territory, Queensland and New South Wales. This approach recognises that victims’ needs vary and that having victims’ needs assessed by specialist victim support workers as part of the broader provision of victim support may better assist victims than making lump sum payments through a legal process. Victim needs are discussed further in Chapter 7.
3.17 In Victoria, and with the exception of amendments in 2000 introducing special financial assistance to primary victims for significant adverse effects, the state-funded statutory financial assistance scheme for victims of crime has not been significantly changed since the introduction of the VOCAA and the establishment of the Victims of Crime Assistance Tribunal in 1996—over 20 years ago.
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See Robert Francis Harper, The Code of Hammurabi King of Babylon—About 2250 BC (University of Chicago Press, 1904) 19 and
Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (LBC Information Services, 2001) 12–14. -
Crimes Act 1958 (Vic) s 83(1), as repealed by Crimes (Amendment) Act 1970 (Vic) s 5. This provision is now reflected in Part 4 of the Sentencing Act 1991 (Vic), which enables victims to apply for a compensation or restitution order against the offender as part of the sentencing process.
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Ian Freckelton, ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds), Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 31.
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See Christine Forster and Patrick Parkinson, ‘Compensating Child Sexual Assault Victims within Statutory Schemes: Imagining a More Effective Compensatory Framework’ (2000) 23(2) University of New South Wales Law Journal 172, 174.
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Criminal Injuries Compensation Act 1967 (NSW).
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David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 147.
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Ian Freckelton describes these schemes as having ‘evolv[ed] under … significant “intellectual confusion”.’ Ian Freckelton,Criminal Injuries Compensation: Law, Practice and Policy (LBC Information Services, 2001) 53.
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Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 170. See also Ian Freckelton, Criminal Injuries Compensation Law: Law, Practice and Policy (LBC Information Services, 2001) 54–62.
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David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 147. See also Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 171, 174.
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Matthew Hall, Victims and Policy Making: A Comparative Perspective (Willan Publishing, 2010) 171.
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Ibid 174.
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Ian Freckelton, ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds) Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 42 and 47–50.
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Ibid 49.
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Ibid.
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Ibid 42.
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See, eg, Criminal Injuries Compensation Scheme 2012 (UK) Annex E.
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David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change’ (2014) 20(1) International Review of Victimology 145, 159.
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Ian Freckelton, ‘Compensation for Victims of Crime’ in Hendrik Kaptein and Marijke Malsch (eds), Crime, Victims and Justice: Essays on Principles and Practice (Ashgate, 2004) 31.
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Ibid 42.
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See the Second Reading Speech for the Victims of Crime Assistance (Amendment) Bill 2000 (Vic), Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1911 (Rob Hulls, Attorney-General).
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Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds), Victimology (Australian Institute of Criminology, 1996) 241.
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Victims of Crime Assistance Act 1996 (Vic); Victims Rights and Support Act 2013 (NSW); Victims of Crime (Financial Assistance) Act 2016 (ACT); Victims of Crime Assistance Act 2009 (Qld); Victims Financial Assistance Scheme 2010 (NT); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (TAS); Criminal Injuries Compensation Act 2003 (WA).
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See in particular the schemes established under the Victims of Crime Assistance Act 2009 (Qld), the Victims Rights and Support Act 2013 (NSW) and the Victims of Crime (Financial Assistance) Act 2016 (ACT).
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See Victims of Crime Assistance Act 2009 (Qld) s 6(1)(c).