Victims of Crime Assistance (Special Financial Assistance) Regulations 2021

The Victims of Crime Assistance (Special Financial Assistance) Regulations 2021 (the Regulations) are a subordinate instrument made under section 72 of the Victims of Crime Assistance Act 1996 (the Act). Their stated objective is to facilitate the payment of special financial assistance to certain victims of crime. Mechanically, the Regulations perform three functions. First, they revoke the previous 2011 regulations and replace them with an updated categorisation system. Second, they specify the categories of acts of violence that attract different maximum amounts of special financial assistance under the Act. Third, they prescribe the circumstances in which a victim may receive a higher maximum amount than the base category would otherwise provide. The Regulations do not create the entitlement to assistance itself; that is established by the Act. Instead, they fill in the details delegated by section 8A(6) of the Act, which required the Governor in Council to prescribe categories of acts of violence and the circumstances in which higher amounts are available.

The core mechanism is a four tier classification in Schedule 1. Category A covers sexual penetration and attempted murder. Category B covers attempted sexual penetration, sexual assault, armed robbery, aggravated burglary, and deprivation of liberty for sexual purposes or ransom. Category C covers attempts of some B offences, threats of death, conduct endangering life, conduct inflicting serious injury, and robbery. Category D covers attempts of some C offences, threats of injury, assault, attempted assault, deprivation of liberty for non sexual or ransom purposes, and a residual catch all for any act of violence not otherwise specified. The Regulations then go beyond mere classification. They set out three tiers of higher maximum amounts that can be applied when certain aggravating circumstances are present. These tiers are layered: the Category A maximum amount ($10,000) is available for acts in lower categories if the victim suffered a very serious physical injury, was infected with a life threatening disease such as HIV, or was a victim of a series of related criminal acts involving sexual penetration or assault. If those conditions are not met, the Category B higher amount ($3,250) can be applied to Category C or D acts if the victim suffered a serious injury, was a victim of related criminal acts, or suffered deprivation of liberty, and was also a child, elderly, or had impaired mental functioning. If those conditions are not met either, the Category C higher amount ($1,300) can be applied to Category D acts if the victim was a victim of related criminal acts or fell into the same vulnerable groups. The Regulations also define key terms such as “very serious physical injury”, “impaired mental functioning”, “Aboriginal person” and “elderly”, with separate age thresholds for Aboriginal and non Aboriginal persons.

The Regulations commenced on 5 December 2021 and will sunset on 30 November 2031 under the Subordinate Legislation Act 1994. No amendments have been made to date. The practical effect is to set the monetary bounds within which the Victims of Crime Assistance Tribunal (VOCAT) exercises its discretion to award special financial assistance. The amounts are modest by any measure: $10,000 maximum for the most serious aggravations, dropping to $1,300 for aggravated Category D acts. This contrasts with the costs of proving the requisite circumstances, which may require medical evidence, police reports, and in some cases legal representation. The Regulations thus create a trade off: they provide a structured, non discretionary framework for certain victims to receive capped payments, but the complexity of the tiered conditions may deter some victims from pursuing claims or require them to incur costs that could approach or exceed the award itself. The residual catch all in Category D ensures no act of violence is left unclassified, but it also means that many minor offences will fall into the lowest category with no possibility of a higher amount unless the victim can meet the specific conditions in regulation 9.

The Regulations introduce a number of defined concepts that are critical to determining both the applicable category and the availability of higher amounts. “Act of violence” is not defined in the Regulations; it is a term used in the Act and is incorporated by reference. However, the Regulations define the categories of acts of violence by reference to specific criminal offences. For example, a Category A act of violence is an offence “involving” sexual penetration or attempted murder. The scope of “involving” is not further defined, which creates interpretive flexibility: does it mean the offence must include that conduct as an element, or is it sufficient that the conduct occurred in the course of the offence? This ambiguity may be resolved by VOCAT practice, but it is a potential source of uncertainty.

The definition of “very serious physical injury” is central to the availability of the $10,000 higher amount. It requires actual physical bodily harm that is permanent or of long term duration and involves one of five specified consequences: loss of a bodily function, disfigurement of a part of the body, total or partial loss of a part of the body, loss of a foetus, or loss of fertility. The harm must be actual, not merely threatened or attempted. The phrase “permanent or of long term duration” sets a high threshold; temporary or minor injuries will not qualify even if they are serious in a colloquial sense. Note also that the definition does not include psychological harm alone, even if severe. The Regulations separately recognise “impaired mental functioning”, but that definition is used only for the vulnerable victim criteria in regulations 8 and 9, not for the very serious physical injury test.

“Impaired mental functioning” is defined broadly to include mental illness under the Mental Health Act 2014, intellectual disability under the Disability Act 2006, acquired brain injury, autism spectrum disorder, and neurological impairment including dementia. This is a wider category than might be expected, and it does not require a formal diagnosis of permanent impairment. Acquired brain injury, for example, could encompass temporary concussion induced impairment if the definition is applied literally, though the condition must be “impaired mental functioning” at the relevant time. The lack of a severity threshold could lead to disputes about whether a claimant’s condition falls within the definition.

The definition of “elderly” creates a differential age threshold: 55 for Aboriginal persons, 65 for others. This difference reflects the lower life expectancy for Aboriginal Australians, but it also means a 58 year old non Aboriginal person would not qualify as elderly, whereas an Aboriginal person of the same age would. The definition of “Aboriginal person” uses the three part test of descent, identification, and acceptance by an Aboriginal or Torres Strait Island community. This aligns with common law and statutory definitions used in other Victorian legislation.

The Regulations directly affect victims of crime in Victoria who apply for special financial assistance under the Act. Because special financial assistance is a separate form of compensation from other awards available under the Act (such as for expenses or loss of earnings), these Regulations set the maximum dollar amounts that can be paid for the non economic harm component. The practical effect is that a victim’s eligibility for a higher amount depends on whether the act falls into a particular category and whether the aggravating circumstances are present. This creates a classification process that the victim must navigate, often with the assistance of a legal practitioner, a victim support service, or the VOCAT registry.

Practitioners advising victims must familiarise themselves with the categories and the three tiers of higher amounts. The Regulations do not create duties or obligations on any party beyond the decision maker. However, they indirectly affect legal aid funding, private legal costs, and the administrative burden on VOCAT. For example, proving a “very serious physical injury” typically requires medical reports, which may need to be obtained at the victim’s expense. The Regulations do not provide for cost recovery, so the compliance burden falls on the victim. For victims with limited means, the cost of obtaining evidence may outweigh the potential award, particularly for Category D cases where the higher amount is only $1,300.

Offenders are not directly affected by the Regulations, as special financial assistance is paid from a fund rather than by the offender. However, the existence of a capped statutory scheme may influence civil litigation decisions: a victim who receives a capped award may still pursue common law damages, but the award may be taken into account in any subsequent proceeding. The Act likely contains provisions to that effect, but the Regulations do not address this.

Taxpayers ultimately fund the scheme through state appropriations or levies. The Regulations set the upper bounds of the state’s financial exposure for each claim, but the total cost depends on claim volumes. By allowing higher amounts for vulnerable victims and serious injuries, the Regulations increase the possible payout per claim but do so selectively. The differential age threshold for Aboriginal persons may also affect distributional outcomes, as it expands the pool of elderly claimants within that group.

The Regulations also affect the Victims of Crime Assistance Tribunal, which must apply them when determining applications. VOCAT members need to interpret the categories and conditions consistently. The absence of a definition for “related criminal acts” may lead to inconsistent rulings across different tribunal panels. Similarly, the phrase “offence involving” in Schedule 1 gives scope for argument about whether conduct that is incidental to an offence qualifies. For example, if an offender commits an armed robbery and in the course of it also commits a sexual assault, the sexual assault would be a Category B act on its own, but the armed robbery is also Category B. The victim could potentially claim under either, but the Regulations do not address how to treat multiple offences arising from the same incident.

The Regulations themselves impose no duties or confer no rights directly. They are prescriptive in nature, filling in the details of the Act. The rights to special financial assistance arise under the Act, not the Regulations. However, the Regulations specify the maximum amounts payable and the conditions under which those maxima can be accessed. This means that a victim’s effective right to a higher amount is contingent on satisfying the criteria in regulations 7, 8, or 9. The decision maker (VOCAT) has a duty to apply those criteria correctly.

There is a right to have an application assessed in accordance with the Regulations. If VOCAT misapplies the categories or fails to consider whether a higher amount is available, a victim may have grounds for review. The Act likely provides for internal review or appeal to the Victorian Civil and Administrative Tribunal (VCAT) or the Supreme Court. The Regulations do not create any new review rights.

The Regulations also provide definitions that constrain how the Act is applied. For example, the definition of “impaired mental functioning” ties into the categories of vulnerable victims. A person who claims to be a victim of an assault and also has an acquired brain injury would need to provide evidence that the condition existed at the date of the act of violence. The Regulations do not specify what evidence is required, but the definition imports the relevant Acts (Mental Health Act 2014, Disability Act 2006) as reference points. This creates a duty on the applicant to present evidence that fits within those statutory definitions, which are themselves complex.

The differential definition of “elderly” raises an issue of equal treatment. An Aboriginal person aged 55 is considered elderly; a non Aboriginal person of the same age is not. The Regulations do not provide a rationale for this distinction. If challenged, it would need to be justified under the State’s anti discrimination framework, but the Regulations were made by the Governor in Council and may be immune from certain challenges. In practice, this means that a 58 year old non Aboriginal victim of a Category D assault would not qualify for the higher $1,300 amount under regulation 9 unless they also have impaired mental functioning or were a victim of related criminal acts. An Aboriginal victim of the same age would qualify solely on the basis of age.

There is no corresponding right to receive the higher amount automatically even if the conditions are met. The Regulations say the higher maximum amount is “prescribed” but the decision to award an amount up to that maximum remains discretionary under the Act. Thus a victim who satisfies all conditions may still receive less than the prescribed amount if VOCAT considers it appropriate. The Regulations set a cap, not a floor.

The Regulations contain no penalty provisions. They are about payments to victims, not prohibitions or obligations. Enforcement issues arise only indirectly. If a person makes a false or misleading claim for special financial assistance, they could be prosecuted under the Act or under general criminal law such as the Crimes Act 1958 or the Criminal Code (Cth). The Regulations do not address this.

The absence of penalties in the Regulations does not mean there is no enforcement mechanism. The Act likely contains provisions for recovery of overpayments or for disqualification from assistance. The Regulations, being subordinate, must be read in conjunction with the Act. For a deep dive focused solely on the Regulations, the key point is that no regulatory penalties are created.

The potential cost of non compliance for applicants is the risk of having a claim rejected if the evidence does not satisfy the conditions. That is not a penalty in a punitive sense but is a financial consequence. For a victim who spends money on medical reports only to have the claim fail, the loss is sunk. Practitioners should therefore advise clients about the evidential burden before they incur significant costs.

The Regulations are made under section 72 of the Victims of Crime Assistance Act 1996 and must be read together with that Act. They are subject to the Act’s provisions, including any amendments to the Act that may override the Regulations. Because the Regulations are delegated legislation, they cannot contradict the Act. If the Act is amended to change the maximum amounts or the categories, the Regulations would likely need to be remade or amended.

The Regulations cross reference several other Victorian statutes. The definition of “impaired mental functioning” incorporates the Mental Health Act 2014 (for mental illness) and the Disability Act 2006 (for intellectual disability). Any person relying on those definitions must look to those Acts for the precise meaning. Those Acts may be amended from time to time, and the Regulations will automatically capture those changes unless the Regulations specify a particular version. The Regulations also refer to the Crimes Act 1958 for the definitions of “sexual assault” and “sexual penetration”. Those definitions are incorporated by reference. The effect is that a change in the criminal law definition of sexual assault would change the scope of Category B acts without any amendment to the Regulations.

The Subordinate Legislation Act 1994 applies to the Regulations in two ways. First, it imposes a sunset period of 10 years from the making date (30 November 2031). Second, it requires the Regulations to be tabled in Parliament and subject to disallowance. The Regulations were made on 30 November 2021 and tabled, but no disallowance motion has been passed.

The Interpretation of Legislation Act 1984 governs the construction of the Regulations. For example, the endnotes explain that headings, examples, diagrams, notes, and punctuation form part of the Regulations. This means that the heading “Category A acts of violence” in Schedule 1 is part of the instrument and can be used in interpretation. The endnotes also clarify the effect of amendments on the numbering of subregulations.

The Regulations do not interact with Commonwealth laws directly, but the special financial assistance scheme is a state scheme. Victims who also qualify for Commonwealth compensation schemes (such as under the National Redress Scheme or the Fair Entitlements Guarantee) may need to account for any double recovery provisions in the Act. The Regulations are silent on this.

The Table of Amendments in the endnotes states that there are no amendments made to the Regulations by statutory rules, subordinate instruments, or Acts. The Regulations are therefore in their original form as made on 30 November 2021 and as commenced on 5 December 2021. The previous 2011 Regulations were revoked by regulation 4. No transitional provisions are included, so the new Regulations apply to applications made on or after 5 December 2021. Applications made before that date would be governed by the 2011 Regulations.

The sunset date of 30 November 2031 means that the Government must review and remake the Regulations before that date if they are to continue. The Subordinate Legislation Act 1994 requires a regulatory impact statement or a human rights certificate for some instruments, but the endnotes do not indicate whether one was prepared. The Regulations are subject to disallowance by either House of Parliament, but no disallowance has occurred.

The Regulations are version 001, indicating they have been republished with any necessary style changes under the Interpretation of Legislation Act 1984 but without substantive amendment. The version as at 5 December 2021 is the current version.

No litigation is recorded in the Regulations, and none is cited in the endnotes. As a new instrument (made in 2021), there has been limited time for cases to arise. However, the predecessors (the 2011 Regulations) may have been considered in Victorian courts or tribunals. The source provides no information on that.

Potential areas for future litigation include the interpretation of “very serious physical injury”, particularly what constitutes “permanent or of long term duration” and whether a particular injury meets one of the five specified consequences. For example, loss of a bodily function could include temporary loss of hearing or vision if it is long term, but the line is unclear. Another area is the phrase “direct result of the act of violence” in regulations 7(2), 8(2)(a), and 9(2)(a). Causation disputes are inevitable, especially where the victim has pre existing conditions or where multiple factors contribute to the injury.

The definition of “related criminal acts” is also a potential source of litigation. Without a statutory definition, tribunals may adopt different tests. For example, are two separate sexual assaults by the same offender on different days “related”? What about assaults by different offenders that occur in the same incident? The Regulations do not require that the acts be committed by the same person, but the term “related” suggests some connection.

The differential age threshold for Aboriginal persons could be challenged under the Equal Opportunity Act 2010 (Vic) as direct discrimination on the basis of race. However, the Regulations are made by the Governor in Council and may be exempt if they are authorised by another Act or are a special measure. The Act does not explicitly authorise different treatment based on race; it leaves the definition of “elderly” to the Regulations. A court would need to determine whether the distinction is reasonable and proportionate. Given the lower life expectancy of Aboriginal Australians, the distinction may be defensible, but it is a potential litigation risk.

Several traps for the unwary exist in these Regulations. The first is the relationship between the categories and the amounts. A victim may assume that because their injury is severe, they will receive the Category A maximum of $10,000. But if the act of violence is only a Category D act (such as an assault with no weapon) and the victim is an adult with no impaired mental functioning and no related criminal acts, the maximum base amount for Category D applies. The victim could only access the $10,000 if they meet the conditions in regulation 7: very serious physical injury, life threatening disease, or a series of sexual penetration or assault acts. A serious injury that does not meet the “very serious” threshold would only qualify for the $3,250 higher amount under regulation 8, and only if the victim is also child, elderly, or impaired. So a 30 year old non Aboriginal victim of an assault who suffers a fractured skull (serious but not meeting the very serious definition) would receive only the base Category D amount, which is unspecified in these Regulations (the base amount is set by the Act, not these Regulations). The Regulations only prescribe higher maximum amounts; the base amounts are in the Act.

The second trap is the requirement in regulation 7 that the very serious physical injury, infection, or series of related criminal acts must be “as a direct result of the act of violence”. This causation standard is strict. A victim who suffers a very serious injury but has a pre existing condition that contributed to the severity may find the injury not directly caused by the act. Similarly, if the infection takes time to manifest and the victim engaged in other risk behaviours, causation may be contested.

The third trap is the exclusion in regulations 8 and 9: the higher amounts under those regulations are only available “other than in the circumstances set out in regulation 7”. This means that if the victim qualifies for regulation 7, they cannot also claim the lower regulation 8 or 9 amounts. But if the victim does not realise they qualify for regulation 7 and instead applies under regulation 8, they may receive a lower amount. Conversely, if they try for regulation 7 and fail, they may still be eligible under regulation 8 or 9, but the Regulations do not require VOCAT to consider lower tiers automatically. The applicant must raise the alternative.

The fourth trap is the definition of “related criminal acts”. It is not defined, so its scope is uncertain. The term appears in all three regulation higher amount conditions, but with different formulations. In regulation 7(2)(c), the series must be “criminal acts that are acts of sexual penetration or sexual assault”. So only sexual offences count for the $10,000 amount. In regulation 8(2)(a)(ii), the condition is simply “a victim of related criminal acts” without limiting the type of offence. In regulation 9(2)(a), it is the same. So a victim of a series of armed robberies could qualify for the $3,250 or $1,300 amounts, but not the $10,000 amount, unless the robberies also included sexual penetration or assault. The lack of a definition of “related” could lead to inconsistent interpretation: are two robberies by the same offender two weeks apart “related”? What about three assaults by different offenders in the same night?

For a victim seeking special financial assistance, compliance with the Regulations means ensuring that the application includes sufficient evidence to establish both the category of the act of violence and, if applicable, the circumstances for a higher amount. The first step is to identify the offence that constitutes the act of violence. This will typically be established by a police report, a charge, or a conviction. The category is determined by the nature of the offence, not by the injury. For example, an armed robbery is always Category B, regardless of injury. A threat of death is Category C. If the offence is not clearly listed, the residual Category D catch all applies.

The second step is to assess whether any higher amount is available. For regulation 7 (the $10,000 amount), the victim needs evidence of a very serious physical injury (medical reports confirming permanence or long term duration and one of the five specified consequences), or evidence of infection with HIV or another life threatening disease (test results, medical opinion), or evidence that the victim was a victim of a series of related criminal acts that are sexual penetration or sexual assault (police reports, witness statements). The evidence must show the causal link: “as a direct result of the act of violence”.

For regulation 8 (the $3,250 amount), the victim must show either a serious injury (not defined in the Regulations, but presumably something less than very serious: the Act may define it), or that they were a victim of related criminal acts, or that they suffered deprivation of liberty. Additionally, the victim must show that on the date of the act they were a child (under 18), elderly (55 for Aboriginal, 65 for others), or had impaired mental functioning. Evidence of age is straightforward. Evidence of impaired mental functioning requires medical or psychological reports that fit within the definitions in the Mental Health Act 2014, Disability Act 2006, or the other conditions listed (acquired brain injury, autism, neurological impairment). Note that the victim does not need to have a formal diagnosis; evidence of the condition at the time of the act is sufficient.

For regulation 9 (the $1,300 amount), the conditions are similar but only require either related criminal acts or the vulnerable status; no serious injury or deprivation of liberty is needed.

Practitioners should also be aware that the Regulations set maximum amounts, not entitlements. VOCAT retains discretion to award less. The application should therefore present the claim in the strongest possible light, particularly on causation and injury severity. For victims with limited resources, the cost of obtaining medical reports should be weighed against the likely award. For a Category D case where the victim may only qualify for the base amount (unknown from these Regulations) or at most $1,300, it may not be economically rational to incur significant evidence gathering costs unless legal aid or pro bono assistance is available.