Improving Victims Compensation

 

Victims of child abuse, child sexual abuse, sexual assault and domestic violence are being failed by the NSW Victims Support Scheme (‘VSS’), which replaced the NSW Victims Compensation scheme ('the old scheme’) in June 2013.

Here are some of the key problems with the VSS.

  • Significantly smaller payments
    Victims get significantly smaller payments under the VSS than under the old scheme. Under the old scheme, victims could have received $30,000-$50,000 for chronic and severely disabling psychological injuries sustained as a result of domestic violence. Under the new scheme, victims can only receive a recognition payment of $1,500 and if they can prove grievous bodily harm they are eligible for a recognition payment of $5,000.
  • Domestic violence victims treated less favourably
    Under the new scheme, domestic violence victims are treated much less favourably than victims of one-off physical assaults outside the home. An experience of domestic violence involving multiple assaults over months, years or decades is treated as a single assault.
  • Strict time limits
    Under the VSS, time limits are also much stricter.
  • No recognition of financial losses
    The VSS also does not recognise other financial losses by victims besides actual loss of earnings.

We advocate that there needs to be:

  • Higher recognition payments that better recognise the pain and suffering experienced by such victims;
  • Acknowledgement of the cumulative impact of ongoing and continuous violence, assault and abuse. 
  • Removal of time limits for such victims for all aspects of the scheme; and
  • Acceptance of wider forms of evidence of an act of violence and injury.

Resources & Further Reading

Yvonne (not her real name) has been receiving counselling through the approved counselling scheme. She recently decided that she was ready to apply for compensation in relation to a complex history of emotional and sexual abuse as a child. Throughout her childhood she was exposed to domestic violence and as a child she was sexually abused by a male family friend.

Yvonne suffers from post-traumatic stress disorder, severe anxiety and due to the trauma she experienced has been unable to work. Yvonne has never reported the child sexual abuse to police or any other government agency because as a child she learnt to fear the police and government. She does not want to report to the police or a government agency now, many decades after the event. Under the previous scheme, the Community Legal Centre she contacted may have been able to prove the acts of violence on the basis of statutory declarations and psychological evidence.

Without the stipulated documentary evidence (report to police or government agency plus medical evidence). Yvonne is denied access to financial assistance for economic loss and a recognition payment.

Yifei was in a relationship with William for 5 years. The relationship was violent from the beginning with William constantly subjecting Yifei to verbal and physical abuse at home. Yifei did not report this early abuse to the police or to her doctor as they had a young child together early in the relationship and she felt that the she did not want to split up the family.

On one occasion William was so enraged that Yifei was socializing with old friends that he punched her in the abdomen at home and smashed her mobile phone against a mirror. A neighbor called the police and an apprehended violence order was taken out to protect Yifei. Yifei and William remained together for another 6 months. William began to physically assault Yifei again causing bruising to her face while they were on an interstate holiday. Yifei left the family home with the child shortly afterwards.

Yifei received a Category D recognition payment of $1500. The only injuries she could prove were the bruises that resulted from the incident attended by the police. The assault took place interstate could not be taken into account as it happened outside NSW.

Background

In June 2013, the NSW Government abolished the NSW Victims Compensation scheme and replaced it with the Victims Support Scheme. The VSS provides victims of violent crime with a range of services designed to assist recovery and provide support. The scheme is intended to provide victims with a coordinated approach to information, referrals and advice with an emphasis on immediate financial assistance and access to counselling and recognition payments.

“Victims support” describes the package of counselling services, financial support and recognition payment available to victims. Victims support is divided into three subcategories: counselling, financial support and recognition payment.

Inadequate recognition of domestic violence

A number of provisions of the Victims Rights and Support Act 2013 (NSW) have the potential to disadvantage victims of domestic violence, sexual assault and child sexual abuse.

The Act fails to recognise that:

  • most incidents of domestic violence and sexual violence are not reported to police (or any other government agency);
  • domestic violence is most commonly a pattern of violence and coercion committed over a period of time; and
  • the harm caused by domestic and sexual experience is broader and more pervasive than the definition of harm in the Act.

The way in which the Act frames violence as discrete acts fails to consider the cumulative and long-running nature of domestic violence.

The categories for payment of recognition payment privilege direct physical harm that is commonly experienced by victims of domestic and sexual violence. While the Act makes specific provision for sexual assault and domestic violence so that violent conduct extends to sexual assault and domestic violence, it does not fully recognise the harm experienced by victims of sexual and domestic violence. This is because it frames violence on the concept of a one-off crime committed by a stranger.

The Act also further disadvantages women by the definition of “related acts” which limits recognition payments where a victim has been injured on more than one occasion by the same perpetrator. This has the practical effect of providing only one recognition payment to victims of long running domestic violence.

Documentary evidence requirements

Under the Act, a claim for financial assistance for immediate needs must be supported by documentary evidence (such as a medical or police report) to show on the balance of probabilities that the applicant is a victim of an act of violence. A claim for a recognition payment or for financial assistance for economic loss must be supported by a police report, or a report to a government agency, and a medical, dental or counselling report to verify that the claimant has actually been injured as a result of an act of violence.

It is unclear why two different standards of proof apply to these claims. The standard of proof that applies to personal injury compensation claims is the balance of probabilities. The Act does not provide economic loss compensation in accordance with the principles that apply to those types of claims. The emphasis on the current Act is on “practical and financial support”, yet the Act places access to that support at a higher evidentiary standard than recognition payments.

Under the VSS, a victim seeking to claim for loss of income must provide evidence from the employer stating that the claimant was absent from work for a specific period. Claimants who are self-employed, or who work on a casual or sessional basis cannot comply with the requirement in the Act. Victims who seek to claim financial assistance for actual expenses incurred as a result of the acts of violence must provide receipts, invoices or other approved forms of substantiation of expenditure.

Time limits

The time limits imposed by the Act are arbitrary and potentially discriminatory given that we now know about the nature of domestic and sexual violence, and its impact on victims and delay in disclosure of child sexual abuse. The Act is out of step with recent reforms to the Limitation Act which removed the limitation period for claims for damages arising from personal injury and death resulting from child abuse.

Under the VSS, a victim has 28 days to lodge an application for internal review of a determination. Many claimants do not have legal advice or representation when they make an application and a victim who is not satisfied with a determination should have enough time to obtain legal advice before making an application for a review. The time limit of 28 days is often not sufficient for a client to obtain legal advice and consider their position.

Restitution

The Commissioner of Victims Rights has discretion to make an order for restitution of victims assistance against a perpetrator who has been convicted of an offence arising from acts of violence. The possibility of the discretion to make an order for restitution being exercised against the perpetrator may deter some from claiming financial assistance or a recognition payment.

Resources & Further Reading