Thursday, 7 April 2022

Bills

Victims of Crime (Financial Assistance Scheme) Bill 2022

Statement of compatibility

Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table the statement of compatibility with respect to the Victims of Crime (Financial Assistance Scheme) Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Victims of Crime (Financial Assistance Scheme) Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Human rights issues

The Bill among, other things, provides a new scheme to assist victims of crime in their recovery from acts of violence.

The Bill engages the following rights under the Charter:

• privacy and reputation (s 13)

• fair hearing (s 24)

• right against self-incrimination (s 25(2)(k))

• property rights (s 20)

• freedom of expression (s 15)

• right to life (s 9)

• protection of families and children (s 17)

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.

Improved access to financial assistance for more victims

The Bill implements the recommendations of the Victorian Law Reform Commission (VLRC) to reform state-funded financial assistance for victims of crime. The Bill establishes an administrative scheme that simplifies the application process for victims of crime and begins the transition away from the Victims of Crime Assistance Tribunal (VOCAT).

Importantly, the Bill will make the new financial assistance scheme victim-centred and trauma-informed and allow more victims to access support through a fair and consistent process. The scheme is designed to support victims of crime and their families to recover from acts of violence.

Clause 40 of the Bill allows a victim to request a victim recognition statement from the scheme decision maker, and clause 41 allows a victim to request a victim recognition meeting. This acknowledgement is a key-feature of the scheme to support a victim’s recovery.

The scheme increases victims’ eligibility to access seek financial assistance. The Bill expands, among other things, the definition of ‘close family member’ to better recognise contemporary understandings of familial relationships, including Aboriginal kinship relationships, and LGBTIQ+ chosen families. Importantly, the Bill removes the shared pool of financial assistance for families bereaved by homicide and enables them to make individual claims and so reduces the trauma and conflict in bereaved families by allowing the scheme to be more responsive to individual family members.

The Bill clarifies and makes it easier for victims to establish their claim. For example, the Bill removes the need for people applying to the scheme to establish ‘mental illness or disorder’ and provides a revised definition of injury to include ‘psychological or psychiatric harm’ instead. This aligns the new Victorian scheme with other jurisdictions across Australia.

The new scheme retains the position at VOCAT where all victims are currently required to provide a police report with their application. Where a victim has not reported the act of violence to the police and is not able to establish the exceptional circumstances, that victim will not be eligible for financial assistance under the scheme. At a future stage, requirements could be reduced and streamlined through regulations by exempting certain victim cohorts, such as survivors of sexual assault and child abuse, from having their applications mandatorily refused for a failure to report the crime or assist in a police investigation or prosecution.

Finally, the Bill enshrines cultural safety for Aboriginal Victorians in its guiding principles (clause 6) and explicitly acknowledges that Aboriginal and Torres Strait Islander people have been disproportionately affected by the criminal justice system, which has contributed to intergenerational trauma and entrenched social disadvantage. While this is does not expand eligibility, the guiding principle in legislation enshrines the commitment to deliver a culturally safe service that considers Aboriginal and Torres Strait Islander cultural rights and familial connections.

General promotion of Charter rights

The Bill promotes victims’ rights as set out in the Victims’ Charter and which are beyond the scope of the civil and political rights protected by the Charter. The reforms also improve outcomes for victims of violent crime and their families and promote Charter rights including:

• the right to life (section 9) which encompasses a general obligation on the State to take positive steps to protect life, including by enacting schemes that uphold public welfare and safety and the scheme could be characterised as improving the standard of life of persons affected by violent crime

• the right to protection of family (section 17(1)) which includes a positive requirement on the State to provide protection to families as the fundamental group unit of society, and ensuring families are not deprived of support in unreasonable circumstances

• cultural rights (section 19) which includes the specific protection for Aboriginal persons at section 19(2), and provides that they must not be denied the right to enjoy their identity and culture, maintain kinship ties, or to maintain their distinct spiritual, material and economic relationship with the land, waters and other resources with which they have a connection under traditional laws and customs, and

• the right to privacy and reputation (section 13) which will be discussed further below.

No alleged offender notifications

This scheme will not notify a person who committed, or is alleged to have committed, an act of violence in respect of an application that an application has been made. Furthermore, a person who is alleged to have committed an act of violence is not entitled to make submissions or refute any allegations made against them. This aligns with recent amendments to the Victims of Crime Assistance Act 1996 to remove alleged offender notifications.

This engages both the rights to protection of reputation (section 13) and fair hearing (section 24) of alleged offenders.

Right to reputation (section 13)

Section 13(b) of the Charter provides that a person has the right not to have his or her reputation unlawfully attacked.

The scheme does not allow alleged offenders to refute allegations made against them and therefore may limit their reputational right. This feature implements the recommendations of the VLRC, who identified widespread concerns related the prospect of offenders being notified of hearings, which can significantly re-traumatise victims, raise concerns for their safety and wellbeing and ultimately discourage them from applying for assistance. I consider that protecting victims against these consequences provides a compelling justification for limits on offenders’ rights.

Further, any interference with this right is mitigated through the confidentiality and non-publication provisions in the Bill which apply to application materials and decisions (clauses 57 and Division 1 of Part 6), which prohibit the publishing of materials that may identify any person connected with an application including an alleged offender (discussed further below). Additionally, the Bill does not abrogate a person’s existing rights at law to protect their interests and reputation, including pursuing civil action such as defamation for any unlawful attacks on their reputation.

Accordingly, in my opinion any limitation of the right is reasonable and justified under section 7(2) of the Charter in the interests of protecting victims and furthering their capacity to access assistance under the scheme.

Right to a fair and public hearing (section 24)

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

In my view, the ‘non-notification’ of offenders does not engage the right to fair hearing. While it is unsettled at law whether administrative applications for assistance before the scheme decision maker would constitute ‘civil proceedings’, in my view an offender would not be considered a ‘party’ to these proceedings. The applications are ultimately concerned with the payment of assistance and involve findings about whether the applicant was subject to an act of violence and is eligible to receive state funded assistance. Decisions and assistance paid are confidential and restricted from publication where it would identify a party. Accordingly, while the application may consider the identity of an alleged offender, any findings do not affect their legal rights and liabilities and they are not liable for the payment of assistance under the scheme. It is important to note however, the Bill does allow for the victim to assign its right 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 assistance relates.

In any event, even if this right is engaged, a limit on this right is reasonable and justified under section 7(2) of the Charter by reference to the benefit of promoting victims’ interests and access to financial assistance, which is the fundamental purpose of the scheme.

Information gathering powers

The Bill provides the scheme decision maker with broad powers to obtain information to ensure the effective operation of the scheme and enable the scheme decision maker to perform their functions, including deciding applications for financial assistance.

Authorisation by applicant for decision maker to obtain information

Clause 22(1)(c) of the Bill requires a victim to provide an authorisation for the scheme decision maker to obtain any other information or document that the decision maker considers necessary to decide the application. This authorisation also allows the scheme decision maker to obtain information regarding any other applications made by the applicant for damages, compensation or assistance of any kind under another scheme, and to share information about the financial assistance application with another scheme that provides for damages, compensation, assistance or payments of any kind. Clause 56(1)(b) also enables the scheme decision maker to request a person to provide to the scheme decision maker any information or documents relevant to the application.

Clause 22(1)(c) makes a victim’s application for assistance contingent on authorising the scheme decision maker to collect a broad range of information and documents about them. Further, information from the application may be disclosed to other decision makers under another scheme.

These provisions authorising broad information gathering and disclosure by the scheme decision maker engages the right to privacy (section 13).

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. This includes a right to information privacy in relation to personal affairs.

An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

In my view this provision is reasonable and appropriate to the legitimate aim sought, which is to establish an accessible and streamlined financial assistance scheme for victims of crime. The ability of the scheme decision maker (or their delegate) to expeditiously obtain necessary information to allow assessment of an application will facilitate the scheme providing timely financial assistance to victims and ensure applications are decided on their merits. This in turn will promote the economic and social rights of victims by enabling victims to access support that assists in their recovery and so participation in the community and economy. Applications to the scheme are voluntary, and it is appropriate that a victim may need to share private information with the scheme decision maker to ensure their application is appropriately considered. Sufficient safeguards are in place, as highlighted, to ensure this information is not shared beyond what is necessary.

Confidentiality provisions in the Bill ensure that any information obtained by a decision maker is not disclosed, except in very limited circumstances. Interferences with privacy are further limited by the obligation on the scheme decisionmaker to act expeditiously to decide an application.

Accordingly, I consider that the right to privacy is not limited.

Notice to provide information

Clause 56 of the Bill gives the scheme decision maker the power to compulsorily obtain information and documents from any person other than the victim by written notice and creates an offence for non-compliance with this written notice. The information the scheme decision maker may require in the written notice must be relevant to the performance of their functions.

The time for compliance with a written notice is not stipulated in the Bill but may be extended at the scheme decision maker’s discretion. The clause contains what is in effect a defence of ‘reasonable excuse’ so that a person with a legitimate reason for not providing the requested information to the decision maker, or for not providing it within time, is not guilty of an offence under the provision. Importantly, this protects the right against self-incrimination (section 25(2)(k) of the Charter), such that a ‘reasonable excuse’ for not providing information to a decision maker would include the fact that the information would tend to incriminate them.

Given clause 56 and its offence provision involving the compulsory acquisition of potentially private information from a person, the right to privacy (section 13) is engaged.

Right to privacy

As discussed above, section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. I consider that clause 56 falls within the qualification on the right to privacy because it is reasonable and proportionate to the aim of enabling the scheme decision maker to appropriately and thoroughly evaluate applications for assistance in order to ensure that victims obtain timely financial assistance. The confidentiality protections contained in clause 57 that place non-disclosure obligations on the scheme decision maker and their staff mitigates any impacts on privacy rights.

As such, I am of the view that clause 56 of the Bill is compatible with the Charter.

Restriction of publication

Clauses 60–62 relate to the restriction of publication of documents and information relating to an application.

Clause 61 of the Bill restricts the publication of scheme documents, which includes those documents created in the performance of a function under the Bill by the scheme decision maker or a member of their staff that identifies or is likely to lead to the identification of a person who has made an application under the scheme or is otherwise connected with an application, or a copy or extract of any of these documents.

Subclause (2) then stipulates that a written notice of a decision made on an application, a victim recognition statement and any written material provided to a person by the scheme decision maker or other staff member at a victim recognition meeting, must not be published. Subclause (3) contains an exception for documents that are otherwise admissible as evidence in a legal proceeding and are required to be published pursuant to a court order in that proceeding.

Clause 62 similarly prevents the publication of any information related to a decision of a scheme decision maker or a member of their staff on an application that identifies, or is likely to lead to the identification of, a person who has made or is otherwise connected with the application. An adult applicant may also publish or consent to the publication of information pursuant to subclause (3) of the Bill, as long as the information only identifies them, or a person connected with the application who has consented to the publication. Subclause (4) then prevents the publication of information which would identify an under-age offender or alleged offender.

For both clauses, a ‘person connected with an application’ includes a person who committed, or is alleged to have committed, an act of violence in respect of which an application has been made.

Given these provisions will prevent, in particular, a victim of crime from publishing material connected to their application for assistance, the right to freedom of expression (section 15) is engaged.

Right to freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

The provisions seek to protect the privacy rights of victims of crime, by ensuring that personal and sensitive information connected with their applications for assistance is not published. This supports the overarching aim of encouraging victims to access assistance through the scheme by reassuring them that the process will be confidential.

Additionally, the provisions also prevent the publication of information which identifies a person connected with an application, including the person who has committed, or is alleged to have committed, an act of violence in respect of which an application has been made and other victims. As discussed above, alleged offenders are not a party to the application and have no right to test or refute the allegations made against them in the application process, these non-publication provisions protect against interferences with such a person’s reputation. Victims may talk about their experiences with the scheme and the contents of their application as long as they do not identify of others connected to the application without their consent.

I am therefore of the view that clauses 60–62 fall within the internal limitation of the right to freedom of expression and is therefore compatible with the Charter.

Admissibility of scheme materials in legal proceedings

Clause 63 of the Bill prohibits the following documents (including copies or extracts of or from them) from being admitted as evidence in any legal proceeding:

• an application for assistance or variation of assistance under the scheme

• a document accompanying an application that was prepared solely for the purposes of the application

• a document provided to the scheme decision maker, or a member of staff, in connection with an application that was prepared solely for the purposes of the application, and

• a document prepared by the scheme decision maker, or a member of staff, in connection with an application.

These documents are only admissible if a victim consents to the admission of such documents, or for one of the new scheme offences, for perjury or fraud related offences, or for offences involving an interference with the due administration of justice and may not be subpoenaed or otherwise compulsorily acquired under any court process (including through discovery obligations in civil proceedings).

Clause 64 provides that victims cannot be cross-examined on the contents of inadmissible documents or be compelled to consent to the admission of such documents, with subclause (3) requiring the court to advise the victim of the protected status of the documents and the consequences of the victim providing that consent. The court may also disallow cross-examination of a victim on the contents of a document that they have consented to be admitted it is considered appropriate in the interests of justice.

By deeming evidence inadmissible in other legal proceedings, the provision engages the rights to fair hearing (section 24) and criminal process rights (section 25).

Right to fair hearing (section 24) and criminal process rights (section 25)

Section 24 provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding determines by a competent, independent and impartial court or tribunal after a fair and public hearing.

In addition, section 25 of the Charter identifies specific rights in criminal proceedings that can be characterised as elements of fair hearing, including the right to be presumed innocent until proven guilty (section 25(1)), the right to adequate time and facilities to prepare one’s defence (section 25(2)(b))) and the right to cross-examine witnesses (section 25(2)(h)).

As these provisions may have the effect of prohibiting disclosure or admissibility of evidence that may be relevant to a criminal or civil proceeding, which may have the effect of disadvantaging a party in that proceeding, this may pose a limit on these rights. The Bill additionally provides that, within two years of the commencement, the Minister must cause an independent review to be conducted on the operation of the Bill, once passed. It is intended that, as part of the independent review, the operation of clause 63 will be considered to ensure that any limit on the accused rights to a fair trial remains reasonable and justified.

Nature of the right

A fair hearing includes a reasonable opportunity for each party to present its case. This includes the opportunity to be informed of the opposing party’s case and to respond. The Supreme Court has also found that the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights and the principle of equality of arms that it incorporates includes the right of an accused person to seek documents from the prosecution that are necessary for a fair trial. This includes the right (which is expressly recognised in section 25) to obtain the attendance of, and examine witnesses, under the same conditions as the prosecution.

The precise content of the right is context-dependent, but the overarching concern is to ensure a party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent. This encompasses the duty of prosecutors to disclose relevant material to the accused in criminal proceedings that may assist in the defence, the subpoena process (to seek information from non-parties), as well as the discovery process in civil proceedings.

However, the High Court has acknowledged that, in some circumstances, the requirements of procedural fairness may be qualified where necessary to protect important countervailing interests. More broadly, courts have consistently recognised the importance of privacy rights of victims of sexualised violence, particularly with respect to communications made in a context of trust for the purpose of seeking support for recovery.

Importance of the purpose of the limitation

This provision serves the pressing importance of protecting a victim’s right to privacy so that personal and sensitive documents are not admissible in the criminal proceedings of the alleged offender or other legal proceedings. Under the previous scheme, victims’ records could be subpoenaed and used in criminal proceedings to challenge the credibility of a victim.

The scheme provides an entitlement for victims to apply for assistance to help them with their recovery from acts of violence. Having a victim’s private and sensitive information compelled for production may cause further distress and emotional harm for a victim and may lead to further traumatisation. Protecting the integrity and informational privacy of the application process is about ensuring victims are not discouraged from seeking assistance or from providing the information necessary to determine their application.

The personal information prepared for the specific purpose of the application and provided to the scheme is not appropriate for use in legal proceedings without the victim’s consent. Additionally, it may be particularly harmful for a victim if an alleged offender obtains information about the impact of the crime on the victim, including any physical or psychological injuries, and then uses that information against the victim. This may also undermine the benefit of any assistance provided under the scheme.

This purpose supports the victim-centred focus of the scheme, implements the recommendations of the VLRC and follows the approach adopted in New South Wales.

The nature and extent of the limitation

The right to a fair hearing does not protect against mere ‘inconvenience.’ The ultimate question is whether the provision would lead to a ‘substantial disadvantage’ for an accused in a criminal proceeding or party in a civil proceeding. Given that the content of the right to fair hearing is dependent on the context, the extent of the limitation on that right cannot be determined in the abstract.

However, it is possible that the provision may prevent the production or tendering of evidence relevant to a criminal proceeding, that relates to the credibility of a victim. For example, comparing the consistency of a victim’s prior statements at different times may be used as a test of credibility.

The provision only applies to application material provided to the scheme and that was prepared solely for the purpose of the application, so pre-existing documents that were not prepared specifically for the application, or pre-existing documents held by other sources, may still be subpoenaed or otherwise adduced in legal proceedings. The provision will also not prevent a document being admissible as evidence in specified proceedings such as fraud or perjury offences, offences against the Bill or with the consent of the applicant.

Relationship between the limitation and purpose

The provision bears a rational connection to the legislative purpose, in that it promotes access to, and the integrity of, the scheme by ensuring that a victim’s personal and sensitive information is protected from compelled disclosure.

Availability of less restrictive means

In my view, the provision seeks to protect and promote the right to privacy of victims, and to ensure that victims are not disincentivised from applying for assistance under the scheme, due to the fear that their personal and sensitive documents and information may potentially be disclosed to the alleged perpetrator of an offence against them.

As such, I am of the view that there are no less restrictive means available, consistent with the recommendation of the VLRC, which was made following a detailed public consultation and consideration of submissions of various stakeholders.

I am thus satisfied that this provision is compatible with the right to fair hearing.

Transitioning from the Victims of Crime Assistance Tribunal (VOCAT)

The transitional provisions of the Bill facilitate the transition to the new scheme from VOCAT awards, such that VOCAT can focus on finalising all pending matters. Clause 74 of the Bill provides that a recipient of assistance under the Victims of Crime Assistance Act 1996 may apply to the scheme decision maker for a substantive variation of their award, and more than once for a minor variation. A minor variation of an award means a variation that gives effect to the original intention of the award and a substantive variation is not a minor variation.

This provision seeks to allow recipients of assistance under the old regime to apply to the scheme to substantively vary their award to account for a change in circumstance. Victims may apply for a minor variation as many times as required, and victims may seek additional assistance through a substantive variation, are limited to one further application. This aims to promote the economic social and property rights of victims as the financial assistance scheme is overhauled.

However, this has the potential to limit the rights of those victims who, under the old scheme, were still within the period to apply for variations to their award. This engages a victim’s property rights (section 20) of the Charter.

Right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

‘Property’ is not defined in the Charter, and the scope of the right is yet to be examined by Victorian courts in any detail. Although ‘property’ is generally considered to include all real and personal property interests recognised under general law, it may include some statutory rights. Rights that have been recognised as ‘possessions’ under the European Convention on Human Rights include a court or arbitral award, but only if it is final and enforceable.

Accordingly, it is unclear as to whether a right to apply for a statutory award falls under ‘property’ for the purposes of section 20 of the Charter. In any event, section 20 contains a qualification: if a person is deprived of their property ‘in accordance with law’ there has been no limitation on the right under section 20. For deprivation of a property right to be lawful, the relevant law must be sufficiently accessible and precise to allow members of the public to regulate their own conduct.

In my view, clause 74 is sufficiently accessible and precise to allow for victims and other members to have certainty with regard to their rights, and to regulate their conduct accordingly. As such, I am of the view that even if the right to apply for a substantive variation of assistance is a property right, clause 74 of the Bill constitutes a lawful deprivation of any such property right, so that section 20 is not in fact limited.

Further, any limitation of property rights under section 20 of the Charter are reasonable and justifiable under section 7(2) of the Charter given clause 74 has the important purpose of providing certainty in the costing and resourcing of the new scheme, so that it can be implemented effectively without any risks to the ongoing viability of the scheme. Accordingly, it is necessary to partially cap historic claims, so that VOCAT can be abolished once all pending matters are finalised.

The Hon Natalie Hutchins

Minister for Victim Support

Second reading

Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:07): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

In 2018, the Victorian Law Reform Commission reported on its review of the Victims of Crime Assistance Tribunal (VOCAT) and its governing legislation, the Victims of Crime Assistance Act 1996. The VLRC found that the experience for victims in applying to VOCAT is highly retraumatising and requires engagement with an often complex, lengthy and delayed process. This is often after victims have already assisted police with investigations and been through the trauma of participating in a criminal prosecution process. Under the previous approach, victims often faced lengthy delays before receiving awards, and were sometimes exposed to the indignity of the perpetrator being notified to attend a hearing.

These issues were not new. For years, victims have been emphatically telling us that more work needs to be done to provide them with real access to justice. They have shown courage and fortitude, in drawing on their own experiences, to call for change in how victims of crime are treated and supported during what is likely to be one of the most difficult periods of their lives. They see the system as broken and in urgent need of being rebuilt. Rightly so, their expectations for reform are high.

This Bill tabled today, addresses these issues by establishing a new administrative financial assistance scheme for victims of crime that acknowledges the harm and experience of the victim and is built to assist in their recovery from acts of violence.

This Bill will bring Victoria in line with other jurisdictions that have shifted form a courts-based approach to an administrative scheme, ensuring that victims of crime in our community are given the financial support and assistance they need to help them recover from the far-reaching effects of violence. This is the most significant reform for victims of crime in Victoria in decades and is well overdue.

The Bill in detail

I now turn to the substance of the Bill in detail.

The Bill establishes a new administrative scheme overseen by a scheme decision maker which will sit within the Department of Justice and Community Safety, alongside other victim services, leading to greater streamlining and co-ordination with other major elements of our victim support system. The scheme is underpinned by a focus on assisting victims to understand their entitlement to assistance, to supporting their wellbeing and dignity, and is built on principles of ensuring the scheme is accessible and flexible in the assistance provided. These fundamental values are crystallised in the Bill as guiding principles which must be considered when making a decision and include:

• the need to protect victims from further trauma, intimidation or distress

• that victims’ needs, safety and wellbeing must be paramount

• that the scheme must be accessible and flexible in the assistance provided, as victims’ needs may vary, and

• the promotion of cultural safety for victims who are Aboriginal, Torres Strait Islander or both.

Building on the approach under the Victims of Crime Assistance Act 1996, the scheme will provide eligible ‘primary victims’, ‘secondary victims’ and ‘related victims’ with financial assistance to assist in their recovery from acts of violence, including assistance for counselling services, reasonable medical expenses and loss of earnings. Primary victims include victims who are injured as a direct result of an act of violence and are eligible for assistance up to $60,000. In addition to this assistance, primary victims are eligible for special financial assistance in recognition of the harm they suffered. Secondary victims include victims who are present at the scene of an act of violence, and related victims are those who had a close personal relationship with a deceased victim, both being eligible for up to $50,000 to assist in their recovery from an act of violence. Assistance is also available to anyone who has incurred funeral expenses as a result of an act of violence, and the scheme may pay interim assistance for immediate needs pending the final determination of an application. Furthermore, through regulations, the current maximum of special financial assistance available will be doubled from $10,000 to $20,000, or to $25,000 for ‘related criminal acts’ as defined under the scheme, therein increasing the assistance available to victims.

Recognising the delays that victims currently face at VOCAT, the Bill provides that the scheme must act expeditiously when deciding applications and cannot delay determination because there are pending legal proceedings. Once a decision has been made on an application, the scheme decision maker is obliged to provide to any applicant a written notice of decision as to the outcome of their application. Communication and correspondence from the scheme will be trauma informed and use a plain language approach to communication.

Some of the most significant changes from the current approach under the Victims of Crime Assistance Act 1996 include increasing the time-limit to make an application for victim survivors of family violence and survivors of sexual offences to 10 years and for other offences to three years. The Bill also increases the time limit to apply for a variation of assistance to 10 years. Importantly, the Bill retains the position that victims who were under the age of 18 years of age when the act of violence occurred, and where that act of violence consisted of or involved child abuse or family violence, may apply at any time. These measures will ensure that victims have enough time to feel comfortable enough to apply for the financial assistance they need.

The scheme will provide for meaningful acknowledgement of the harm and the ways in which the victim’s experience has impacted their lives. To this end, and unlike any other jurisdiction around this country, the Bill will allow victims to request a victim recognition meeting. The scheme decision maker may hold victim recognition meetings if requested. This is to ensure that meetings are held in appropriate circumstances. The meeting, to be held after a decision on the application is made, will provide victims with an opportunity to have their experience acknowledged and for an appropriate representative to express their condolences on behalf of the State. The Bill also requires the scheme decision maker to ensure that a victim recognition meeting is held in a culturally safe manner which is tailored to, and prioritises, the victim’s needs, safety and wellbeing. The victim will also have the opportunity to read aloud any statement or document which sets out the effects of the violence experienced by the victim and to discuss those effects with the scheme decision maker. Victims will also be entitled to receive a victim recognition statement on behalf of the State, acknowledging the effects of the act of violence and expressing the State’s condolences.

Victims will continue to be entitled to be represented by a legal practitioner, including Victoria Legal Aid, when applying to the scheme for assistance. However, the scheme is also designed to reduce reliance on legal representation by making the process simple and easy to understand. Victims will continue to be able to apply to the scheme to have the grant of assistance varied following final determination.

Victims who have applied to the scheme for financial assistance may apply to the scheme decision maker for internal review of a final decision. Decisions which can be reviewed internally include the decision to refuse an application for financial assistance, a decision of the amount of assistance payable and a refusal to vary assistance. An application for internal review must be made within 28 days of the original final decision, although the scheme decision maker retains the discretion to extend this deadline. The Bill also provides that those same types of decisions made by the scheme decision maker, or their delegate, can be reviewed externally by the Victorian Civil and Administrative Tribunal. Again, the Bill provides that an application for external review should be made within 28 days from the final decision reached by the scheme decision maker.

The scheme decision maker will be employed by the Secretary of the Department of Justice and Community Safety. The scheme decision maker will be supported by deputy decision makers and other staff.

The Bill provides the scheme decision maker with the functions required to administer the scheme and support victims in their recovery from acts of violence. Importantly, the Bill empowers the scheme decision maker to assist victims in their recovery from the effects of acts of violence by providing victims with information about the scheme and other support services and assistance available. This includes referring and connecting victims to other victim support services, including restorative justice initiatives, as victims may not be aware of the types of support services which are available to them. The scheme decision maker will have the power to request information from other bodies to assist in determining applications and must keep a victim’s information confidential and only disclose it particular circumstances, which includes with the victim’s consent and where required by another law.

The scheme decision maker, as statutory head of the scheme, may make, vary, revoke and externally publish guidelines about the performance of functions and the exercise of powers under the Bill. Guidelines are intended to provide support to the scheme making sound and reasoned decisions. Examples of the types of matters which could be outlined in publicly available guidelines include the documentary evidence requirements to support an application to the scheme, processes and procedures for the scheme decision maker to provide victim recognition meetings and statements, and considerations relevant to whether applications can be made and determined out of time. Published guidelines will provide flexibility to the scheme decision maker and their response to victims while ensuring transparency as to the decision-making process.

One consideration which the scheme decision maker must take into account when deciding whether to pay assistance or refuse an application is the character, behaviour and attitude of the applicant at any time, including their criminal history. It is not intended that an applicant’s irrelevant criminal convictions will be taken into consideration as part of the decision-making process (such as taking into account an unrelated shop theft charge when considering an application related to a sexual offence), but instead ensures that the scheme decision maker has sufficient discretion to refuse to grant assistance to a person involved in the commission of the act of violence or where an application has been made improperly.

The Bill provides that an independent review of the Bill, the scheme and its operation must take place within two years after the commencement of the Bill. This reflects the VLRC’s recommendation that a review into the operation and effectiveness of the Act and the scheme should take place. In fact, the Bill goes further than the VLRC recommendations, which proposed the review take place within five years after its commencement. Instead, the Bill ensures the review take place within two years after the commencement of the Bill and mandates that the review be an independent one. The report produced after that review must be tabled in Parliament within 10 sitting days after the report is received by the Minister. This measure promotes transparency while also ensuring that the scheme can respond to the evolving needs of victims.

Victims will be protected from further trauma by preventing their application for assistance from being used in other legal proceedings. The Bill better protects victims’ information by preventing the subpoena of scheme materials and controlling the sharing of information held by the scheme decision maker. The Bill prevents scheme documents from being admissible as evidence in legal proceedings unless in limited circumstances (such as with the victim’s consent), and provides that victims cannot be cross-examined in any legal proceeding on any scheme documents.

These protections are important steps towards reducing the risk that a victim will be subjected to the confronting and potentially traumatising experience of being cross-examined and the fear that their confidential information provided in support of an application will be used elsewhere. We know this is especially important to sexual assault victims, many of whom may have opted not to apply for assistance for fear of having their personal information used against them in criminal proceedings. To ensure that this approach is working as intended and not adversely impacting legal proceedings and the administration of justice, this will be considered and reviewed as part of two year independent review of the Act.

The prohibition of the publication of any scheme documents or details of the outcome of an application for assistance likely to identify a person who has made, or is otherwise connected with an application, will protect the privacy of victims and other involved parties. Examples of scheme documents which are prohibited from being published include written notice of a decision made on an application, a victim recognition statement and any written material provided at a victim recognition meeting. However, the prohibition on publication does not restrict a victim from self-identifying publicly where the information published is not a scheme document or does not relate to an outcome of an application for assistance that would identify any other party, including the alleged offender or other victims. This measure balances the rights to privacy of all parties while ensuring that victims are not unduly restricted from publicly discussing their own experiences, should they wish to do so.

The Bill also amends the functions of the Victims of Crime Commissioner under the Victims of Crime Commissioner Act 2015 to confirm that the Commissioner can receive and deal with complaints referred by the scheme decision maker under the Bill and to perform any other functions conferred by the Bill and also amends reporting requirements under that Act.

In alignment with the VLRC’s recommendation that VOCAT continue to consider and determine applications for assistance under the VOCA Act, upon the commencement of the scheme, new applications for financial assistance will be made to the scheme, rather than VOCAT. VOCAT will continue to operate until all pending matters are finalised. Victims who received an award from VOCAT will retain the ability to apply to vary this award, which is to be considered by the scheme and victims who withdrew their applications from VOCAT or where their applications previously lapsed will be eligible to apply to the scheme for assistance within the specified time limits.

The Bill allows for the expansion of the scheme in the future by providing that regulations can prescribe categories of victims as exempt from having to report the act of violence to police. Categories of victims that are exempt from the requirement, (such as survivors of sexual offences or victim survivors of family violence), must otherwise provide evidence to the scheme of the injury suffered. The scheme will also ensure it remains flexible to changing needs by allowing further offences to be prescribed in regulations, increasing the maximum amounts of assistance (including special financial assistance) or extending the time allowed for a victim to make a variation application.

This Bill represents the most significant reform to the State’s response to victims of crime since the commencement of the VOCA Act in 1997, over twenty years ago now. The scheme established by this Bill is an essential step towards providing victims of crime with the support they deserve.

I commend the Bill to the House.

Mr WAKELING (Ferntree Gully) (10:08): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 21 April.