Victims’ compensation

Another, often overlooked, aspect of support for victims is access to financial assistance. Family violence, among other harms, often has a significant impact on the financial security of victims. Victims of family violence are likely to incur medical, counselling, legal and housing expenses, as well as education and child care expenses, and may have been subject to economic abuse as an element of family violence. In practice, these costs may constitute a significant barrier for victims in accessing the legal system.

An important method of addressing these financial concerns is through victims’ compensation. For most victims the only practical method of financial redress is through statutory victims’ compensation schemes, funded by state and territory governments. All Australian state and territory governments currently provide such schemes. Although these are available to victims of family violence, there are problems with the ways such schemes operate in this context, limiting the capacity of the schemes to provide effective support to such victims. The Commissions’ preliminary view is that Australian state and territory governments should amend their victims’ compensation legislation to ensure the legislative provisions do not unfairly discriminate against victims of family violence. In particular, the Commissions make a number of specific proposals towards these ends.

First, the Commissions consider that the definition of the act and injuries that trigger compensation needs to be revisited to ensure that the pattern of violence that is characteristic of family violence can be considered in assessing victims’ compensation claims, rather than focusing exclusively on specific incidents. This objective may be achieved in a number of ways, and different methods may be more appropriate to different legislative schemes. One approach would be to specify that evidence of a pattern of family violence can be considered when assessing the probability that an act of violence or injury has occurred. Another method is to adopt the approach of NSW, and deem ‘domestic violence’ to be an act of violence and a specific form of injury, which would be defined as involving a pattern of violence. Another approach is to extend the definition of injury to enable consideration of adverse impacts, as is done with sexual offences in Victoria and Queensland.

Secondly, state and territory legislation should be amended so that the mere fact that the same offender committed the crime does not mean the crimes are ‘related’. This does not mean that states or territories cannot reduce the amounts payable for multiple claims, as is already done in some jurisdictions. This may be necessary because of the resource implications of such claims. In the Commissions’ view, however, to treat all criminal incidents of family violence as if they constituted a ‘single’ incident discriminates unfairly against victims of family violence. Further, state and territory legislation should allow a victim to object if claims are to be treated as ‘related’.

Thirdly, victims’ compensation legislation should be amended so that a failure to report the criminal incident to the police, or to provide reasonable cooperation with law enforcement, does not automatically disqualify a victim of family violence from claiming compensation. A pre-requisite that a victim report to the police or cooperate with law enforcement impacts particularly upon victims of family violence (including victims of sexual abuse) who choose not to report or cooperate for fear of the offender. This proposal affects the Western Australian, Tasmanian and ACT legislation. This should be a discretionary factor, as it is in other jurisdictions.

In all jurisdictions, the legislation should provide that decision-makers consider the nature of the relationship between the offender and the victim when assessing these discretionary factors (as is done in NSW, Victoria, and Queensland), in light of the nature and dynamics of family violence. Similarly, the legislation should be amended to provide that the nature of the relationship, in light of the nature and dynamics of family violence, should also be considered when assessing whether a victim contributed to the injury and (where the legislation so provides) whether a victim failed to take reasonable steps to mitigate the injury. As well, decision-makers should be required to consider, when deciding whether to extend the time for making an application, the fact that a claim is made on the basis of family violence, sexual assault, or child abuse (as is done in NSW and the Northern Territory), or the fact that the offender was in a position of power, influence, or trust (as in Victoria and Queensland).

In the view of the Commissions, the legislation in Victoria, South Australia and the ACT should also be amended to ensure that victims of family violence are not required to attend hearings in the presence of offenders. Clearly, there is the potential for the victim to suffer trauma as a result, and the risk that victims will be unfairly deterred from claiming compensation. Instead, the legislation should require that alternative arrangements, such as remote witness facilities, should be employed in cases of family violence.

The Commissions also propose the repeal of provisions in the Victorian, Western Australian, and Northern Territory legislation excluding compensation on the basis that it would advantage or benefit the offender, as has been done in other jurisdictions. These provisions discriminate against victims of family violence who remain in relationships with the offender. The Commissions are interested, however, in hearing from stakeholders whether any mechanisms can and should be adopted to ensure that offenders cannot access victims’ compensation awards, and whether there are any issues as to the availability of interim compensation awards.

The Commissions consider that there is a clear need for better data collection in relation to claims and awards of victims’ compensation. The reports of the Compensation Tribunal of NSW provide a useful model, as they identify victims of family violence, including those who claim for other types of injuries. These reports also usefully separately identify claims made by victims from Indigenous communities. The Time for Action report has highlighted the disproportionate representation of Indigenous women and child victims of family violence.

Finally, the Commissions consider that Australian governments should ensure that information about victims’ compensation is readily available in all courts dealing with family violence matters.