- Please select chapter -PrefaceCall for submissionsTerms of referenceGlossarySummaryQuestions1 Background2. Victim support and financial assistance available for victims of crime3. The Victims of Crime Assistance Act 19964. The Victims of Crime Assistance Tribunal5. Eligibility for assistance by VOCAT6 Assistance available under the Victims of Crime Assistance Act7. Time limits for making an application to VOCAT8. Making a VOCAT award to victims of crime9. Review, variation and refund of awards by VOCAT10. Timeliness of awards made by VOCAT11. VOCAT hearings and evidentiary processes12. Awareness and accessibility of VOCAT13. The needs of victims of crime14. Approach 1: Reforming the existing scheme 15. Approach 2: Is there a need for a different model?
7.1 This chapter considers the time limit for making an application under section 29 of the Victims of Crime Assistance Act 1996 (Vic) (the Act).
whether the time limits and structure and timing of awards are appropriate and are adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime.
7.3 The effect of section 29 of the Act is that the Victims of Crime Assistance Tribunal (VOCAT) is required to assess a victim’s behaviour in making a delayed application to it for assistance.
7.4 Questions posed in this chapter relate to the current time limit requirements under section 29, and whether they are clear and working as intended, as well as whether the policy rationale underpinning the time limit requirement is still justifiable.
all other circumstances that VOCAT considers relevant.
considerations of fairness to affected individuals.
7.10 The Act also expressly provides that VOCAT must not decide to further hear and determine an out-of-time application only because the applicant was unaware of Victoria’s victims of crime financial assistance scheme or the time limit.12 The effect of this is that a victim’s lack of knowledge of the scheme, or the time limit, is itself a barrier to accessing the scheme. Awareness and accessibility of VOCAT is discussed further in Chapter 12 of this supplementary consultation paper.
also considered the psychological effect of the abuse, which resulted in the delay, and concluded that the delay did not threaten the Tribunal’s capacity to make a fair decision.
7.12 Similarly, in J v Victims of Crime Assistance Tribunal,14VCAT overturned VOCAT’s decision to strike out an application made 35 years after the alleged sexual abuse by the victim’s brother-in-law. VCAT considered the fact that the applicant was between 13 and 18 years old when the acts of violence took place and noted the brother-in-law’s position of power. VCAT also took into account psychological evidence that the trauma of the violence had contributed to the applicant’s delay in making a claim.
7.13 In contrast, in S v Victims of Crime Assistance Tribunal15and BFK v Victims of Crime Assistance Tribunal,16 VCAT upheld VOCAT’s decision to strike out the applications for being out-of-time. This was despite both applicants being a similar age to the applicant in J v Victims of Crime Assistance Tribunal17 when the acts of violence took place (17 and 18 respectively).
7.19 In order to assess this, the Supreme Court considered whether, despite the VOCAT application being made 30 years out of time, VOCAT would likely allow the ‘out of time’ application. The applicant alleged that he was sexually assaulted by a stranger on public transport in 1981, at the age of 13 years.
7.21 The court also considered the applicant’s litigation history of attempting to commence over 50 legal proceedings, actions which appeared to contradict his account that he had thought more about the alleged assault, and therefore the VOCAT application, only because of the Royal Commission into Institutional Responses to Child Sexual Abuse.
7.23 This section sets out options for reform to address concerns that some victims of crime are unfairly disadvantaged by the two-year application time limit.
7.24 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether the time limit provisions in section 29 of the Act should be amended. Possible options for reform and questions are set out below.
Is the time limit a barrier for victims of crime?
7.30 In addition, while section 29(3) of the Act allows VOCAT to consider certain factors that may account for delayed applications, such as whether the perpetrator was in a position of power, trust or influence over the applicant, these factors have been interpreted narrowly in some circumstances by the courts.
7.32 Similarly, while VOCAT can have regard to ‘whether the applicant was a child at the time of the occurrence of the act of violence and the application was made within a reasonable time after he or she reached the age of 18’,39 this provision is unlikely to assist child victims who may not identify or disclose abuse until much later in life. Underpinning this provision is an assumption that once a person turns 18 years old, they will be able to promptly address the trauma associated with such violence.
7.36 Although ultimately taken into account by VCAT on appeal, the first instance decisions of VOCAT in FG v Victims of Crime Assistance Tribunal45and J v Victims of Crime Assistance Tribunal46indicate section 29 may not adequately take into account the trauma associated with childhood sexual assault and its impact on timely VOCAT applications.
7.37 However, it is difficult to ascertain whether matters are being unfairly struck out under section 29. In 2015–16, 1644 applications were either withdrawn or struck out, close to 30 per cent of all applications. The data does not distinguish between those withdrawn or struck out, so it is difficult to quantify how many applications might be struck out under section 29 in circumstances where it might be considered reasonable to allow an out-of-time application. This limits the ability of the Commission to understand the way in which section 29 is operating in many circumstances.
7.38 Options to address concerns that some victims of crime are unfairly disadvantaged by the two-year time limit on applications are set out below, along with specific questions for consideration.
7.39 One option is to increase the time period prescribed in section 29 of the Act.
7.41 A variation of this option is to increase the time limit for specific crime types. This option recognises that some groups of victims face increased barriers to disclosing or reporting abuse and consequently, making an application to VOCAT. As discussed above, these are commonly accepted to be victims of acts of violence perpetrated against children, sexual assault (including historical child sexual abuse), family violence, elder abuse and violence or abuse in care.
26 Is the two-year time limit to make an application to VOCAT under section 29 of the Act still appropriate? If not, what would be an appropriate application time limit? Alternatively, should different application time limits apply for different types of crime?
7.46 This approach acknowledges that victims of some kinds of violence may need more time to make an application for assistance. However, this approach may not assist victims of other types of crime who might not make a timely application because of other personal factors unrelated to the type of crime, such as culture or ethnicity, socio-economic status or the victim’s past interactions with authorities. These are typically victims experiencing other forms of disadvantage or vulnerability.
7.48 Under this scheme, there are no time limits to the provision of information, victim support and referral services, as well as counselling to assist recovery. However, financial loss and recognition payments have a two-year time limit, except when victims of sexual assault were children at the time of the offence.
27 Should some types of crime be excluded from application time limit provisions entirely? Should some time limits start after a victim turns 18? Alternatively, should some components of victim support and financial assistance not have a time limit?
Granting an extension of time—is there a need for additional considerations?
7.49 Another option is to add additional considerations to the list of factors in section 29(3) of the Act that VOCAT must consider when making a decision about whether or not to strike out a late application.
7.50 Additional factors might include further matters relating to increased vulnerability and acknowledgment of community diversity, as well as specific factors related to the effects of particular types of crime.
28 Are the factors VOCAT may currently consider in determining whether to hear an application out of time sufficient? Should other factors be included in the Act? If so, what additional factors should be included?
7.51 Another option, which could be considered alongside the above-mentioned options, is to increase the transparency of the decision-making process under section 29 by requiring VOCAT to publish data on applications struck out under section 29 and the reasons for these decisions. This would give victims and their legal or support representatives clearer guidelines and understanding of the factors the Tribunal takes into account. This would help improve certainty for victims and help ensure greater consistency in decision making by VOCAT.
7.52 However, this option does not address the substantive issues with section 29.
29 Should VOCAT be required to publish data and reasons for decisions made in relation to section 29 of the Act? If yes, what data should be provided and how should it be published?
1 Victims of Crime Assistance Act 1996 (Vic) s 29(1).
4 Victims of Crime Assistance Tribunal, Application for Extension of Time Form (2016) .
6 Victims of Crime Assistance Act 1996 (Vic) s 29(3).
7 ‘Intellectually disabled’ within the meaning of the Disability Act 2006 (Vic).
8 ‘Mentally ill’ within the meaning of the Mental Health Act 2014 (Vic).
9 Victims of Crime Assistance Act 1996 (Vic) s 29(3)(g).
10 See, eg, BFK v Victims of Crime Assistance Tribunal  VCAT 289 (15 March 2017); J v Victims of Crime Assistance Tribunal  VCAT 532 (24 July 2002).
11 BFK v Victims of Crime Assistance Tribunal  VCAT 289 (15 March 2017) .
12 Victims of Crime Assistance Act 1996 (Vic) s 29(4).
13  VCAT 2449 (1 September 2011).
14  VCAT 532 (24 July 2002).
15  VCAT 1257 (7 November 2002).
16  VCAT (15 March 2017).
17  VCAT 532 (24 July 2002).
18  VCAT 1257 (7 November 2002).
19  VCAT 532 (24 July 2002).
20 S v Victims of Crime Assistance Tribunal  VCAT 1257 (7 November 2002) .
21  VCAT 289 (15 March 2017).
22 BFK v Victims of Crime Assistance Tribunal  VCAT 289 (15 March 2017) .
24  VSC 133 (30 March 2017) .
25 As per the Vexatious Proceedings Act 2014 (Vic). See also, Knight v Victims of Crime Assistance Tribunal  VSC 133 (30 March 2017) .
26 Knight v Victims of Crime Assistance Tribunal  VSC 133 (30 March 2017) .
30 See, eg, Victims of Crime Assistance Act 1996 (Vic) s 29(3)(a)–(d), (f).
32 For example, recent research by the Royal Commission into Institutional Responses to Child Sexual Abuse found that for victims aged approximately 11 years at the time of alleged sexual abuse, the average time taken to make a complaint to the Catholic Church was 33 years, see Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. See also Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services: Final Report (2016) 59, discussing reasons why victims with disability may face barriers to reporting abuse.
33 See, eg, Angela Dwyer, ‘Policing Lesbian, Gay, Bisexual and Transgender Young People: a Gap in the Research Literature’ (2011) 22(3) Current Issues in Criminal Justice 415, 416, discussing the unwillingness to report to police among LGBTIQ victims of crime. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol 5, 145–6, discussing the unwillingness to involve authorities among LGBTIQ victims of family violence. See also Victims of Crime Assistance Tribunal, Koori VOCAT List Pilot, Review and Recommendations (2010) 11, discussing the unwillingness to report to police among Aboriginal and Torres Strait Islander victims of crime.
34 Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 79.
35 BFK v Victims of Crime Assistance Tribunal  VCAT 289 (15 March 2017).
37  VCAT 289 (15 March 2017).
39 Victims of Crime Assistance Act 1996 (Vic) s 29(3)(f).
40 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Analysis of Claims of Child Sexual Abuse Made with Respect to Catholic Church Institutions in Australia (2017) 14. This research report refers to ‘claims’ of sexual abuse, defined as either ‘claims’ or ‘complaints’ of sexual abuse made against Catholic Church personnel either related or unrelated to a redress scheme, such as the Catholic Church’s ‘Towards Healing’ or ‘Melbourne Response’ redress schemes.
41  VCAT 289 (15 March 2017).
43 Knight v Victims of Crime Assistance Tribunal  VSC 133 (30 March 2017) .
45  VCAT 2449 (1 September 2011).
46  VCAT 532 (24 July 2002).
47 See the comparative table of Australian jurisdictions at Appendix B.
48 Victims Rights and Support Act 2013 (NSW) s 40(5).
50 Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013) vol 2, 553.
51 Victims Rights and Support Act 2013 (NSW) s 40(7).
52 Victims’ Rights and Services Act, RSNS 1989, c 14 (Nova Scotia) s 11B(2).
53 Crime Victim Assistance Act, SBC 2001, c 38 (British Columbia) s 3(4).
15. Approach 2: Is there a need for a different model?