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ISSN 2204-4779 (Print) 2204-4787 (Online)

Research Note No. 7: Oct 2015

Parliamentary Library & Information Service Department of Parliamentary Services

Parliament of Victoria

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note

Victims of crime and the Victorian criminal justice system

Contents

Executive summary Introduction The Bill Victims of Crime Commissioner Victims of Crime Consultative Committee Victims’ Charter Victim impact statements Victims Register Victims and compensation Victims Support Agency VLRC Inquiry Further resources Appendix A: Charter principles

Executive summary

This Research Note explores the variety of initiatives introduced to incorporate the experiences of victims of crime into the Victorian criminal justice system over the past decade, including those in the Victims of Crime Commissioner Bill 2015 which was introduced in the Legislative Assembly on 15 September 2015. These initiatives include:

the Victims of Crime Commissioner; the Victims of Crime Consultative Committee; Victim Impact Statements; the Victims’ Charter Act 2006; the Victims Register; Victims of Crime Compensation; and, the Inquiry into the Role of Victims in the Criminal Trial Process.

This Research Note presents key information on each of these measures, including when and how they were established, background material on how they operate, and comparable measures in other jurisdictions.

Victims of Crime Commissioner Bill 2015

Introduced: 15 September 2015 2nd Reading: 16 September 2015 House: Legislative Assembly Commencement: Day of Royal Assent.

Links to key documents including the Bill, Explanatory Memorandum, Statement of Compatibility and Second Reading Speech can be found on the Library’s New Bills Information Links page for this Bill.

For further information on the progress of this Bill please visit the Victorian Legislation website.

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Introduction

Victoria has a variety of measures in place to incorporate the views of victims of crime into the criminal justice system. This paper looks at some of these initiatives, starting with the Victim of Crimes Commissioner and Victims of Crime Consultative Committee, established in law by the Victims of Crime Commissioner Bill 2015, and equivalent commissioners in other jurisdictions.

The introduction of the Victims’ Charter Act 2006 is explored as it provides for the rights of victims in relation to many other measures discussed in this paper including the use of victim impact statements, informing victims through the Victims Register, compensation for victims of crime, and support services provided by the Victims Support Agency. Reforms being considered by the current Victorian Law Reform Commission (VLRC) inquiry into the Role of Victims in the Criminal Trial Process are also briefly discussed.

The Victims of Crime Commissioner Bill 2015

The Victims of Crime Commissioner Bill 2015 was introduced on 15 September 2015 and formalises the Victims of Crime Commissioner and the Victims of Crime Consultative Committee, ensuring their continued existence.1

The commissioner is enshrined as a Governor in Council appointment for a term of five years, with no more than two terms. The role is given explicit powers to undertake an own motion inquiry or an inquiry in response to a specific request (which does not necessarily need to come from a victim of crime) on ‘systemic victims of crime matters’ (cl. 13 and 23). In addition, the commissioner is provided with the power to refer particular cases to the Ombudsman, Chief Commissioner of Police or the Director of Public Prosecutions (DPP), as well as the Independent Broad-based Anti-corruption Commission in cases of corrupt conduct (cl. 26 and 27). According to the Attorney-General’s second reading speech, the focus of the commissioner will be on ‘big picture issues affecting a significant number of victims’ rather than individual cases.2 Further, the commissioner’s membership of the Victims of Crime Consultative Committee will allow access to a forum where victims of crime and the members of the justice system are represented.

Part 3 of the Bill formalises the membership of the Victims of Crime Consultative Committee, and provides for disclosure protections and the ability for the committee to regulate its own procedure. Membership includes a chairperson, the Victims of Crime Commissioner, five judicial members, a legal practitioner from the DPP, a member of the Adult Parole Board, a police officer, and representatives of victim support services. The Bill also provides for the appointment of up to seven victims of crime.

Victims of Crime Commissioner Victoria’s first Victims of Crime Commissioner was appointed by then Attorney-General, Robert Clark, on 5 October 2014.3 The appointment of Greg Davies (APM), a retired Victoria Police Senior Sergeant and former Police Association Secretary, attracted some opposition from the Australian Lawyers Alliance and Domestic Violence Victoria who preferred a retired judge or academic in the role, but

1 M. Pakula, Attorney-General (2015) ‘Second reading: Victims of Crime Commissioner Bill 2015’, Debates, Victoria,

Legislative Assembly, 16 September, p. 3278. 2 Ibid.

3 R. Clark, Attorney-General (2014) Victoria’s First Commissioner for Victims of Crime, media release, 5 October; See: Victims

of Crime Commissioner (2015) ‘About Victoria’s first Victims of Crime Commissioner’, VCC website.

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received support from the Victims of Crime Assistance League.4 Questions were also raised as to the independence of the role given it reported directly to the Attorney-General.5

The commissioner was established as an advocacy and advisory role for the interests of victims of crime in their interactions with government agencies and the justice system.6 The role was initially consultative, with no coercive or investigative powers of its own, but with the ability to refer cases on to appropriate investigative bodies.7 It was designed to ensure that the rights of victims — as provided for in the Victims’ Charter Act 2006 (see Appendix A) — are recognised and respected across government agencies, and that victims have access to well-coordinated, effective and appropriate support services.

Victims of Crime Consultative Committee The then Attorney-General, Robert Clark, announced the establishment of Victims of Crime Consultative Committee in June 2012.8 The committee itself has existed since 2013, and has provided a forum for victims of crime and members of the justice system to consider improvement to policies and practices to improve victim services. The chairperson is currently Justice Bernard Teague, who was appointed in April 2015 to replace former Judge of the Supreme Court Philip Cummins.9 Expressions of interest were called in June 2015 for victims of crime to be part of the committee.10 To date, the committee has been effective in providing input into Victoria Police policy strategy that is victim-centric. Victim members of the committee, together with the Department of Justice and Regulation, have been involved in projects to raise awareness of the impact of crime.11

Commissioners in other jurisdictions Australian Capital Territory The ACT Victims of Crime Commissioner was established in 2010 to replace the Victims of Crime Coordinator. The Commissioner is appointed by the Minister under the Victims of Crime Act 1994 (ACT) for a period of five years. Under s 11 of the Act, the position entails managing victim services schemes and advocacy on behalf of victims, monitoring compliance with the governing principles (s 4) as well as complaints monitoring, providing advice to the Minister, consulting and promoting reforms, and developing educational programs. The position has no apparent inquiry or review powers, but must ensure complaints are dealt with effectively and referred to the relevant agency (s 12).

New South Wales The position of Commissioner of Victims Rights was established in New South Wales under the Victims Rights and Support Act 2013 (NSW), which also introduced the Charter of Victims Rights.12 According to the second reading of the Bill the position was established to fulfil a government commitment under NSW 2021: A Plan to Make NSW Number One.13 Mandy Young was appointed as the first commissioner on 12 June 2013 to promote and oversee compliance with the new Charter, chair the new Victims Advisory Board, and assist victims of crime in exercising their rights, having

4 ABC Radio (2014) ‘Questions raised over choice for Victorian victims of crime commissioner’, World Today, 6 October.

5 J. Lee (2014) ‘Greg Davies appointed Victoria’s first Commissioner for Victims of Crime’, The Age, 5 October.

6 Clark (2014) op. cit.

7 ABC Radio, op. cit.

8 R. Clark, Attorney-General (2012) Coalition Government Gives Stronger Voice to Crime Victims, media release, 20 June.

9 M. Pakula, Attorney-General (2015) New Victims of Crime Consultative Committee Chair, media release, 27 April.

10 M. Pakula, Attorney-General (2015) Expressions of interest open for victims committee, media release, Attorney-General,

27 June. 11

M. Pakula, Attorney-General (2015) ‘Second reading’, op. cit., p. 3279. 12

Victims Rights and Support Act 2013 (NSW) s 6; See: Department of Justice (NSW) (2015) ‘Charter of Victims Rights’, Department of Justice website. 13

B. Hazzard (Minister for Planning and Infrastructure) (2013) ‘Second reading: Victims Rights and Support Bill 2013’, Debates, New South Wales, Legislative Assembly, 7 May, p. 20068; See: Department of Premier and Cabinet (NSW) (2011) NSW 2021: A Plan to Make NSW Number One, NSW Government, September, p. 36.

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previously served as the Director of victims’ services in the Department of Attorney General and Justice.14 Under the Act, the commissioner can receive complaints from victims of crime, publish codes and guidelines in relation to the Charter, recommend that agencies apologise to victims of crime for breaches of the Charter, and undertake investigations with the power to compel information.15

Queensland Queensland’s Victims’ Services Co-ordinator is a public service employee appointed by the chief executive under s 138 of the Victims of Crime Assistance Act 2009 (Qld). Under the Act, the role’s functions include research about the needs of victims, the development of educational programs, distribution of information to service providers and the general public, assisting government agencies with implementing the declaration of fundamental principles and complaints made under the declaration, governing treatment of victims, and management of complaints.16 The co-ordinator’s role is to assist the government agency rather than oversee the resolution of the complaint. A 2014 review of the Victims of Crime Assistance Act 2009 (Qld) discussed the possibility of strengthening the role of co-ordinator to permit intervention in the complaints process, allow for independent investigation or elevation of the role to that of a Commissioner.17

South Australia The Victims of Crime (Commissioner for Victims' Rights) Amendment Act 2007 (SA) established the position of Commissioner for Victims’ Rights within the Victims of Crime Act 2001 (SA), repealing the previous position of victims of crime coordinator.18 According to the second reading for the Bill, the commissioner was established with a ‘broader role than the victims of crime co-ordinator and [the ability] to deal with matters affecting victims in a more comprehensive manner.’19 The commissioner’s position is independent, with the power to review and make recommendations for changes that arise from any review of laws and court practices that impact on victims. Appointments are for five years (with the option to be re-appointed), and also involve membership of the Victims of Crime Advisory Committee.20

The commissioner may request that a public agency or official that has not complied with the declaration of principles, as set out in the Victims of Crime Act, to issue a public apology to that person.21 In addition, the commissioner has standing to appear and be heard by the Supreme Court of South Australia when it creates or reviews sentencing guidelines.22 The commissioner is also able to assist victims of crime in their dealing with the Director of Public Prosecutions (DPP), police and other government agencies. Agencies like the DPP have a ‘positive obligation’ to consult with the commissioner on matters concerning victims of crime – for example, the commissioner may request the DPP to consult on matters such as victim impact statements and plea bargains.23

Western Australia Western Australia’s Victims of Crime Act 1994 while providing that public officers and bodies must have regard for the guidelines as to how victims should be treated as stated in the Act,24 does not

14

G. Smith (2013) New Commissioner of Victims Rights Appointed, media release, Attorney-General (NSW), 12 June. 15

Victims Rights and Support Act 2013 (NSW), Part 3, Div. 1. 16

The declaration of fundamental principles is contained in Part 2 of Chapter 2 of the Victims of Crime Assistance Act 2009 (Qld). 17

Department of Justice and Attorney General (Qld) (2014) Review of the Victims of Crime Assistance Act 2009: consultation paper, State of Queensland, October, p. 22. 18

See: Commissioner for Victims’ Rights (2015) ‘About us’, Commissioner for Victims’ Rights website. 19

M.J. Atkinson (Attorney-General) (2007) ‘Second reading: Victims of Crime (Commissioner for Victims' Rights) Amendment Bill’, Debates, South Australia, House of Assembly, 24 July, p. 608-609. 20

Victims of Crime Act 2001 (SA), s 16. 21

Ibid., s 16A. 22

See Criminal Law (Sentencing) Act 1988 (SA), s 29B 23

Atkinson, op. cit., p. 608. 24

Victims of Crime Act 1994 (WA) Sch. 1

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include the position of the commissioner for victims of crime. The commissioner’s role, however, sits within the Attorney-General’s department, and ‘provides a mechanism for victims to lodge complaints regarding Government services’.25

Victims’ Charter Act 2006

On 13 June 2006, the Bracks’ Government introduced a Victims’ Charter Bill to create ‘a framework for system-wide reforms that recognise and promote the rights of victims’.26 The need for a victims’ charter had been flagged for examination in the Attorney-General’s 2004 Justice Statement,27 which was followed by community consultation in 2005. The Victims’ Charter Community Consultation Paper was released by the Department of Justice in September 2005, and involved 50 forums with victims of crime, support service providers, and the legal and public sectors.28

In his second reading speech on the Victims’ Charter Bill 2006, the then Attorney-General Rob Hulls stated that the Bill enshrined minimum standards to govern responses to victims of crime across the criminal justice system in order to provide ‘clear recognition by the government of victims of crime and their important role in the criminal justice process’ and avoid exacerbation of ‘the trauma that victims have already experienced’.29

The Victorian Victims’ Charter Act 2006 largely brought together existing legislative rights and entitlements of victims of crime into one framework, without seeking to broaden these rights and entitlements.30 The Charter sets out principles that criminal justice and support agencies are required to follow when dealing with victims of crime (see Appendix A).

The underlying principles of the Charter are based on the principles of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which was adopted by the United Nations General Assembly in 1985. At the time of the Victorian Victims’ Charter Bill in 2006, the UN Declaration had already formed the basis of Victims’ Charters implemented in other interstate and international jurisdictions.31

The Victims’ Charter Act commenced on 1 November 2006. At that time, there were existing interstate and national policies aimed at incorporating the recognition of victims’ rights in legislation or guidelines.32 A media release from the office of the then Attorney-General Rob Hulls in June 2006 stated that there had been ‘overwhelming support for the Victims’ Charter’ amongst stakeholders during the consultation process.33 However, the then Shadow Attorney-General Andrew McIntosh was critical of the Victims’ Charter, saying it ‘merely restates the existing body of law’ and did nothing to improve support for victims of crime.34 The Liberal Party opposed the Bill on the basis that

25

Department of the Attorney-General (WA) (2015) Annual report 2014-15, Government of Western Australia, p. 30. 26

R. Hulls, Attorney-General (2006) ‘Second reading: Victims’ Charter Bill’, Debates, Victoria, Legislative Assembly, 14 June 2006, p. 2047. 27

See J. Silverii (2004) ‘Justice statement sketches Victoria’s future’, Law Institute Journal, 78(7), p. 20. 28

R. Hulls, Attorney-General (2006) Charter Builds on Commitment to Victims of Crime, media release, 13 June. 29

Hulls (2006) Second reading, op. cit., p. 2046. 30

ibid.; see also Victims’ Charter Act 2006, Section 4(2) 31

Department of Justice (2005) Victims’ Charter Community Consultation Paper: Executive Summary, DoJ, September, p. 3. See also Department of Justice (2005) ‘Chapter 6: The Framework for a Victims’ Charter’, Victims’ Charter Community Consultation Paper, DoJ, September, pp. 28-36. 32

A. Flynn (2012) ‘Bargaining with Justice: Victims, plea bargaining and the Victims’ Charter Act 2006 (Vic)’, Monash University Law Review, 37(3), p. 88. See Victims of Crime Act 2001 (SA); Victims of Crime Act 1994 (WA); Victims of Crime Act 1994 (ACT); Victims Rights Act 1996 (NSW), which contained the Charter of Victims’ Rights Act 2003 (NSW) - provisions of this Act were later repealed or re-enacted with modifications by the Victims Rights and Support Act 2013 (NSW); Victims of Crime Rights and Services Act 2006 (NT); Criminal Offence Victims Act 1995 (Qld), later repealed by the Victims of Crime Assistance Act 2009 (QLD). See also Standing Council on Law and Justice (2013) National Framework for Rights and Services for Victims of Crime 2013-2016, Victims of Crime, Victorian Department of Justice and Regulation website. 33

R. Hulls (2006) Charter Builds on Commitment to Victims of Crime, op. cit. 34

A. McIntosh (2006) Victims of Crime Shafted By Labor, media release, 9 August.

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victims of crime would not be notified or able to make a submission if the Adult Parole Board released a prisoner on home detention, and preferred wider consultation with agencies such as the Sentencing Advisory Council and the Adult Parole Board on this issue.35

Other stakeholders have expressed concern that the Victims’ Charter has no penalties for breaching victims’ rights. In 2013, Federation of Community Legal Centres spokeswoman Michelle McDonnell stated that the Charter was ‘toothless’, and called for the appointment of a crime victims’ commissioner to enforce the Charter.36 The then Shadow Attorney-General Martin Pakula supported the call for a commissioner, saying ‘The legal system simply must treat victims of crime with more empathy, more compassion and deal with their claims more quickly’.37

Victim impact statements

A victim impact statement is a statutory declaration made under s 8L of Sentencing Act 1991 that sets out the impact of an offence on a victim, including ‘any injury, loss, or damage suffered as a direct result of the offence’. They are voluntary and may be submitted by the prosecutor in evidence against an offender following a finding of guilty, and subsequently referred to by a magistrate or judge when delivering a sentence.38 They have no direct connection to compensation, and act primarily as a restorative justice mechanism. The Department of Justice published a Guide to Victim Impact Statements in June 2014, which outlines who should make a statement, what the statement should include, and how it can be submitted to the court.39

The right to make a victim impact statement to the court is protected by s 13 of the Victims’ Charter (see Appendix A). Mechanisms for making statements were first inserted into Division 1A of Part 6 of the Sentencing Act by the Sentencing (Victim Impact Statement) Amendment Act 1994. These statements were reformed by the Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act 2010, and moved to new Division 1C of Part 3 by the Sentencing Amendment (Community Correction Reform) Act 2011.

The 2010 reforms were based on recommendations set out in A Victim’s Voice: Victim Impact Statements in Victoria, published by the Victims Support Agency in October 2009.40 The new provisions gave victims the right to read their statement aloud in court (s 8K and s 8Q, Sentencing Act) and attach additional material (s 8J), while also providing for special arrangements for the delivery of statements such as remote witness facilities (s 8R). They were part of a package of reforms targeted at increasing the take-up of victim impact statements, particularly in the Magistrates’ Court, including through developing more user-friendly information for victims wishing to make statements, training for victim support workers on the use of victim impact statements, and information for judicial officers on how to approach statements during sentencing.41

A 2014 evaluation of the reforms noted that the ability to read a statement aloud has had a positive effect on victims’ experiences of the sentencing process, although most victims prefer to tender a written statement or have the prosecutor read it aloud.42 Issues still remain around the admissibility of some material in some victim impact statements, and continued education in this area is still

35

ibid.; See: Victoria, Legislative Assembly (2006) ‘Second reading: Victim’s Charter Bill’, Debates, 10 August, p. 2790; R. Dalla-Riva (2006) ‘Second reading: Victim’s Charter Bill’, Debates, Victoria, Legislative Council, 24 August, p. 3191. 36

D. Gough (2013) ‘Plea to fix ‘toothless’ victims of crime system’, Sunday Age, 17 February, p. 4. 37

ibid. 38

Victoria Legal Aid (2013) ‘Victim impact statements’, VLA website. 39

Department of Justice (2014) Guide to Victim Impact Statements, Melbourne, Victorian Government, June. 40

Victims Support Agency (2009) A Victim’s Voice: Victim Impact Statements in Victoria, Melbourne, Department of Justice, October. 41

Department of Justice (2014) Victim Impact Statement Reforms in Victoria: Interim Implementation Report, Melbourne, Victorian Government, June, p. 5. 42

Ibid.

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required. Initiatives to increase opportunities for victims to make statements in the Magistrates’ Court are being implemented by the Magistrates’ Court and Victoria Police Prosecutions.43

The Victims Register

Under the Corrections Act 1986, certain victims can apply to be placed on the Victims Register, including those with a connection to the crime for which the offender has been sentenced, victims who have been hurt by an offender or whose family has been hurt or died because of the crime, and victims of family violence committed by the offender.44 The offender must have been sent to prison for a violent crime, such as assault, aggravated burglary, stalking, kidnapping, breach of an intervention order, threats to kill, sexual offences, culpable driving, manslaughter or murder.45 Registration entitles a victim to information about the earliest possible release date of the prisoner, any possible release on parole, the prisoner’s actual release date and the reason for releasing the prisoner.46

The ability to apply to be on the Victims Register was made possible by the Corrections (Further Amendment) Act 2004, which also codified the right for victims to make submissions to the Adult Parole Board before the Board determines whether to release a prisoner on parole.47 Since 2013, persons on the Victims Register are also notified at least 14 days prior to the offender being released on parole.48

Victims of crime compensation

Victorians that suffer a loss due to criminal activity can seek compensation through three avenues: compensation or restitution orders made by the sentencing judge in addition to sentencing orders under Part 4 of the Sentencing Act; assistance through the Victims of Crime Assistance Tribunal (VOCAT); or civil proceedings against the offender.49 The first two of these options satisfy the s 16 right to access compensation under the Victims’ Charter (see Appendix A).

Under DPP policy, compensation or restitution orders are only sought for a victim where certain factors are satisfied including: the offender is found guilty or pleads guilty; there is sufficient evidence; an amount for the order can be readily determined; the offender does not oppose the application for an order; there is a reasonable prospect that a substantial amount of the order could be enforced against the offender given their financial circumstances; and, a suitable person is available to act as litigation guardian (in the case of a child or person incapable of managing their affairs).50 These orders are intended to provide a faster, more flexible and cheaper alternative to costly and time-consuming civil proceedings, although a victim who receives such an order can still choose to pursue civil action for any costs not met by the order.51

VOCAT was established by the Victims of Crime Assistance Act 199652 and provides state-funded financial assistance to victims of violent crimes where such restitution cannot be obtained from an

43

Ibid., p. 6. 44

Department of Justice and Regulation (2015) ‘Getting information about the offender’, Victims of Crime website. 45

ibid. See: Corrections Act 1986, s 30A. 46 Office of Public Prosecutions (2015) ‘Victims Register’, OPP website. 47 Now in s 74A of the Corrections Act 1986; See also: Victims’ Charter Act 2006 , s 17. 48

Corrections Act 1986, ss 30A(1A) and (1B); See: B. Lesman et al (2013) ‘Corrections Amendment (Parole Reform) Bill 2013’, Research Brief, no. 6, Parliamentary Library Research Service, Parliament of Victoria, October, p. 28. 49

Victorian Law Reform Commission (2015) Victims of Crime in the Criminal Trial Process: Consultation Paper, VLRC, August, p. 131 [10.7]; See also: Department of Justice and Regulation (2015) ‘Victims of crime compensation in Victoria’, Victims of Crime website. 50

VLRC (2015) Consultation paper, op. cit., p. 133 [10.25]. 51

ibid., p. 134 [10.29] – [10.30]. 52

Replacing the Crimes Compensation Tribunal; J. Wade (Attorney-General) (1996) ‘Second reading: Victims of Crime Assistance Bill’, Debates, Victoria, Legislative Assembly, 31 October, p. 1025; These reforms were based on the

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offender or other source. The option for victims to appear at a compensation hearing also provides an important avenue for the experience of victims to be heard, particularly if they were not able to submit a victim impact statement at the sentencing hearing.53

The Victims Support Agency

The majority of the above measures discussed in this Research Note are co-ordinated by the Victims Support Agency, within the Department of Justice & Regulation.54 As well as the Victims of Crime website, the agency is also responsible for the Victims of Crime Helpline, and other services that assist in a whole-of-government approach to victims’ services. As such, the agency serves important information-provision and service-delivery functions in line with s 7 of the Victims’ Charter (see Appendix A).

Victims of Crime Awareness Week begins on 8 November, for its tenth year of observance. This year two free forums will be held in Mildura and Dandenong to provide information on the services and rights available to victims of crime.55

Victorian Law Reform Commission inquiry

In October 2014, the Victorian Law Reform Commission (VLRC) was asked to inquire into the role of Victims of Crime in the Criminal Trial Process.56 The inquiry has published a number of reports including information papers on the history, concepts and theory of victims of crime; who constitute victims of crime; the international criminal court; and victims’ rights and human rights, as well as a general consultation paper. Submissions closed on 30 September 2015, with a final report due in September 2016.57 The key discussions raised by the inquiry’s consultation paper in relation to the Victims of Crime Commissioner, victim impact statements and compensation are discussed below.

The Victims of Crime Commissioner The VLRC’s consultation paper on the role of victims in the criminal trial process raised the possibility of the Victims of Crime Commissioner’s involvement in two areas: complaints processing and resolution of breaches of the Victims’ Charter,58 and provision or coordination of a victims advocate or liaison service.59

While the paper recognises that the Charter does not create any legal rights or cause of action for victims of crime, nor a specific right to make a complaint, compliance must be monitored under s 19 of the Act, and appropriate processes to deal with complaints must be established under s 20. The VLRC comments that many other Australian jurisdictions instil their equivalent commissioners with complaints handling processes (see above) and that the Victorian commissioner could take on the function ‘to conduct or coordinate complaint taking, investigation and resolution processes’.60

recommendations of a number of reports including: Victorian Community Council Against Violence (1994) Victims of Crime: Inquiry into Services, Discussion Paper, VCCAV, November; Law Reform Committee (1993) Restitution for Victims of Crime: Interim Report, Parliament of Victoria, November; Law Reform Committee (1994) Restitution for Victims of Crime: Final Report, Parliament of Victoria, June. 53

VLRC (2015) Consultation paper, op. cit., p. 136 [10.45]; Department of Justice (2014) Victim Impact Statement Reforms in Victoria, op. cit., p. 6. 54

Department of Justice and Regulation (2015) ‘Victims Support Agency’, Victims of Crime website. 55

Department of Justice and Regulation (2015) ‘Victims of Crime Awareness Week Victoria 2015’, Victims of Crime website. 56

Victorian Law Reform Commission (2015) ‘Victims of crime in the criminal trial process: terms of reference’, VLRC website. 57

Victorian Law Reform Commission (2015) ‘Victims of crime in the criminal trial process’, VLRC website. 58

VLRC (2015) Consultation paper, op. cit., p. 161 [12.44]. 59

ibid., p. 173 [13.51]. 60

Ibid, p. 161 [12.44].

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In regard to support services, the consultation paper notes that coordination of victim support services currently rests with the Victim Support Agency and moving this function to the commissioner would be disruptive and costly, and possibly problematic if the responsibility of complaints processing is vested in the commissioner.61

Victim impact statements The consultation paper presents a variety of options for reform to victim impact statements. These include expanding the use of victim impact statements to a broader range of victims not immediately linked to the offence, or introducing new community impact statements to incorporate broader community views of appropriate sentences in relation to the offence.62 Further, statements could be broadened to allow for submissions by victims on particular sentencing outcomes.63 Although the paper also notes that these raise issues in regard to equality and proportionality in sentencing.64 Other options include strengthening privacy provisions in relation to the information victims put on the public record in their statements,65 as well as allowing victims to be represented by their own lawyer during a sentencing hearing.66 Ultimately, the report notes that the role of victims in sentencing in Victoria could be enhanced by legislative integration of restorative justice mechanisms.67

Compensation The VLRC’s consultation paper explores reform options in regard to compensation at the sentencing stage and VOCAT. In regard to compensation and restitution orders, reforms could allow for victims to put forward their application for these orders earlier in the proceedings in order to enable the judge to hear evidence relating to compensation at the trial stage, similar to what occurs in inquisitorial jurisdictions.68 Further, a presumption in favour of compensation or restitution could be introduced to reflect the situation in New Zealand, where judges are encouraged to explore the possibility of compensation or restitution orders in all cases, and raise the possibility of such orders with the parties.69

In regard to enforcement in situations where the offender does not pay, the consultation paper also favourably looks upon the New Zealand situation where the state, rather than the victim, is responsible for enforcing compensation and restitution orders as an extension of the offender’s punishment. In such situations, the state could advance the money to the victim and seek compensation from the offender, ensuring that ‘victims could receive compensation quickly and without prolonged contact with the offender’.70

Other options for reform include allowing victims to appeal against compensation or restitution orders, expanding the types of victims eligible to access VOCAT to non-violent offences, and greater incorporation of restorative justice into VOCAT processes.71

61

ibid., p. 174 [13.54]. 62

ibid., p. 125 [9.87]. 63

Ibid., p. 125 [9.88]. 64

ibid., p. 125 [9.87]. 65

ibid., p. 125 [9.89]. 66

ibid., p. 125 [9.91]. 67

ibid., pp. 126-127. 68

ibid., p. 143 [10.92]. 69

ibid., p. 143 [10.95]. 70

ibid., pp. 143–144 [10.98]–[10.100]. 71

ibid., pp. 144–145.

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Further resources

Victims of Crime Commissioner Clark, R., Attorney-General (2014) Victoria’s First Commissioner for Victims of Crime, media release, 5 October Pakula, M., Attorney-General (2015) New Laws Enshrine Rights for Victims of Crime, media release, 15 September Victims of Crime Commissioner (2015) ‘About Victoria’s first Victims of Crime Commissioner’, VCC website News articles

Victims’ Charter Department of Justice (2005) Victims’ Charter Community Consultation Paper: Executive Summary, DoJ, September Flynn, A. (2012) ‘Bargaining with Justice: Victims, plea bargaining and the Victims’ Charter Act 2006 (Vic)’, Monash University Law Review, 37(3), p. 88 Silverii, J. (2004) ‘Justice statement sketches Victoria’s future’, Law Institute Journal, 78(7), p. 20 Standing Council on Law and Justice (2013) National Framework for Rights and Services for Victims of Crime 2013-2016, Victims of Crime, Victorian Department of Justice and Regulation website

Victim Impact Statements Department of Justice (2014) Guide to Victim Impact Statements, Melbourne, Victorian Government, June Department of Justice (2014) Victim Impact Statement Reforms in Victoria: Interim Implementation Report, Melbourne, Victorian Government, June Victims Support Agency (2009) A Victim’s Voice: Victim Impact Statements in Victoria, Melbourne, Department of Justice, October Victoria Legal Aid (2013) ‘Victim impact statements’, VLA website

Victims Register Department of Justice and Regulation (2015) ‘Getting information about the offender’, Victims of Crime website. Lesman, B. et al (2013) ‘Corrections Amendment (Parole Reform) Bill 2013’, Research Brief, no. 6, Parliamentary Library Research Service, Parliament of Victoria, October Office of Public Prosecutions (2015) ‘Victims Register’, OPP website

Compensation Department of Justice and Regulation (2015) ‘Victims of crime compensation in Victoria’, Victims of Crime website. Victorian Community Council Against Violence (1994) Victims of Crime: Inquiry into Services, Discussion Paper, VCCAV, November Law Reform Committee (1993) Restitution for Victims of Crime: Interim Report, Parliament of Victoria, November Law Reform Committee (1994) Restitution for Victims of Crime: Final Report, Parliament of Victoria, June

Victims Support Agency Department of Justice and Regulation (2015) ‘Victims Support Agency’, Victims of Crime website

VLRC inquiry Victorian Law Reform Commission (2015) Victims of Crime in the Criminal Trial Process: Consultation Paper, VLRC, August, Victorian Law Reform Commission (2015) ‘Victims of crime in the criminal trial process’, VLRC website

Appendix A: Victims’ Charter Act 2006 principles

See also Office of Public Prosecutions Victoria (2014) ‘Victims’Charter’, OPP website.

The Victims’ Charter Act 2006 sets out 12 principles that criminal justice and support agencies are required to follow when dealing with victims of crime. According to the Charter, a victim of crime is entitled:

To be treated with courtesy, respect and dignity (section 6)

To be given clear, timely and consistent information about their rights and entitlements and, if appropriate, be referred to support services (section 7)

To be informed by police at reasonable intervals of progress in the investigation. If giving details about the investigation is likely to put it at risk, victims should be told this (section 8)

To be informed about the prosecution, including charges laid, any substantial changes to charges, hearing dates and times, court outcomes and any appeals lodged (section 9)

To be informed, on request, about the outcome of any bail application and any special conditions of bail which are intended to protect victims (section 10)

To be informed about the court process, including the victim’s entitlement to attend relevant court proceedings and the victim’s role if they are a witness (section 11)

To be protected from unnecessary contact with, and intimidation by, the accused, their family, supporters and defence witnesses while at court, as far as is reasonably practicable (section 12)

To make a Victim Impact Statement to the court which may be considered by the judge in sentencing the offender, and have access to assistance when preparing the Victim Impact Statement (section 13)

To not have their personal information, including address and telephone number, disclosed to any person except in accordance with the Information Privacy Act 2000 (section 14)

To have their property that is held for investigation or evidence stored and handled in a lawful, respectful and secure manner and, in consultation with the victim, returned as soon as practicable (section 15)

To request that the court order the offender to pay compensation in cases of a violent crime. Victims can also apply for compensation and financial assistance from the Government for harm resulting from a violent crime under the Victims of Crime Assistance Act 1996 (section 16)

To apply to be included on the Victims Register if an adult offender is sentenced to prison for a violent crime, receive specific information regarding the sentence and release of the offender, and have their views considered by a parole board when any decision about parole of the offender is being made (section 17).

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Research & Inquiries Service

Research Notes are produced by the Parliamentary Library’s Research & Inquiries service. They provide analysis on selected components of new Bills and topical issues in response to, and in anticipation of, the needs of Members of the Victorian Parliament.

This research publication is current as at the time of printing. It should not be considered a complete guide to the particular subject or legislation covered. While it is intended that all information provided is accurate, it does not represent professional legal opinion. Any views expressed are those of the author(s).

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Authors Paige Darby, Marianne Aroozoo and Alice Jonas Research & Inquiries Victorian Parliamentary Library & Information Service Department of Parliamentary Services

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