Victims of Crime (Financial Assistance Scheme) Regulations 2024

The Regulations introduce several tiered concepts that determine how much a victim can receive. The central organising concept is the “category of acts of violence”. Four categories exist - A, B, C and D - with A attracting the highest payments. The category is not simply a function of the offence; it depends on the outcome (injury or death), the type of victim (specified victim or not), and whether the act consists of a series of related criminal acts or a single criminal act. The Schedule 1 provisions create “escalator” rules: for example, an act that would otherwise be Category B is elevated to Category A if it directly results in a very serious physical injury (Schedule 1, clause 1(c)). Similarly, an act that would otherwise be Category C or D is elevated to Category B if it directly results in a specified victim suffering a serious injury, becoming a victim of related criminal acts, or suffering a deprivation of liberty (Schedule 1, clause 2(e)). “Specified victim” is defined in regulation 4 as a victim who, on the date of the act of violence, is under 18, elderly, or has impaired mental functioning. “Elderly” is defined differently for Aboriginal persons (55 or older) and others (65 or older) - a distinction that reflects known life expectancy disparities but also introduces a complexity in application: a practitioner must ascertain whether the victim is an Aboriginal person (per the three-part test in regulation 4: descent, self-identification and community acceptance). “Impaired mental functioning” is defined inclusively and broadly, covering mental illness, intellectual disability, acquired brain injury, autism spectrum disorder and neurological impairment including dementia. “Serious injury” means an injury that endangers life or is substantial and protracted. “Very serious physical injury” requires actual physical harm that is permanent or long-term and involves one of six listed outcomes (loss of a bodily function, disfigurement, loss of a body part, loss of a foetus, loss of fertility, or infection with a life-threatening disease). The difference between “serious injury” and “very serious physical injury” matters because the latter can escalate an act into Category A. The Regulations also define “sexual assault”, “sexual penetration”, “intimate image”, “sexual servitude offence” and “commercial sexual services offence” by cross-reference to the Crimes Act 1958. There is a residual catch-all for Category D: “an act of violence not otherwise specified as a category A, B, C or D act of violence” (Schedule 1, clause 4(c)), which ensures that every act of violence (as defined in the Act) falls into some category. The distinction between a single criminal act and a series of related criminal acts alters the payment amounts (Tables 1 and 2): for a series, the minimum and maximum are 25% higher for Category A (e.g. $11,668 vs $9,334 minimum) and roughly 25% higher for all categories. That premium reflects the recognition that repeated victimisation causes greater cumulative harm, but it also creates an incentive for applicants to frame their experience as a series of related acts (e.g. a pattern of family violence) to access higher amounts.

The Regulations primarily affect three groups. First, victims of crime who have suffered an act of violence that meets the definition in the Act and falls within one of the prescribed categories. They are the intended beneficiaries. However, the scheme is not universal: it only covers victims of “relevant offences” as defined in the Act - which includes, by regulation 5, offences against Subdivision (8FAA) or (8FAAB) of Division 1 of Part I of the Crimes Act 1958. Those subdivisions cover offences relating to sexual servitude and commercial sexual services. In practice, that means victims of forced prostitution and related offences are specifically included. Victims in other categories - such as victims of assault, robbery, sexual assault, family violence, and homicide - are covered by the main categories. A notable design feature is that the Regulations treat certain victims more generously: a “specified victim” (child, elderly person, or person with impaired mental functioning) may have a lower-graded act escalated to a higher category (e.g. Category D becomes Category C if the victim is a specified victim - Schedule 1, clause 3(d)). That shifts the payment band upward. Second, the Regulations affect courts and administrative decision-makers (likely the Victims of Crime Financial Assistance Scheme administrator) who must determine the correct category and apply the correct minimum and maximum. They must also determine factual questions - was the injury “very serious” or “serious”? Was the victim a specified victim on the relevant date? Was there a series of related criminal acts? The degree of factual analysis required is not trivial, and the Regulations give no guidance on how to value, say, “total or partial loss of a part of the body” - that requires medical evidence. Third, the Regulations affect offenders indirectly, because the State will pay victims from public funds (or from a levy or a victims fund), which may reduce the incentive for victims to pursue civil damages against the offender. But the Regulations themselves do not create any obligations on offenders. Fourth, practitioners - lawyers, victim support workers, and financial counsellors - must familiarise themselves with the categories and the escalator rules to advise clients on likely entitlements. The compliance burden on the individual victim is relatively low (filing an application), but the burden on the administrative system is potentially high if claims volumes are large, because each claim involves a cateogorisation judgment. The Regulations also affect insurers, particularly those offering personal accident or trauma insurance, because statutory payments may affect subrogation or policy terms that require disclosure of other compensation. Finally, taxpayers bear the ultimate cost. The amounts, while not high (max $25,000), are funded by the State, so there is an opportunity cost: money spent on this scheme is not spent on police, courts, or victim support services. The scheme may also create a mild moral hazard - victims may be less motivated to prevent crime or mitigate harm if they know a payment is available - but given the modest sums and the traumatic nature of the acts, this is likely a second-order effect.

The Regulations themselves do not impose duties; they prescribe matters under the Act. But the Act, through the Regulations, gives victims a right to apply for special financial assistance in a certain amount. That right is not automatic - the Act conditions it on the victim cooperating with police (unless exempted) and not having been convicted of a serious offence related to the act of violence. The Regulations fix the range: an applicant can receive no less than the minimum and no more than the maximum for the relevant category, except that the Act may allow reductions (for example, if the victim contributed to the offence). The decision-maker has a duty to properly categorise the act of violence. That duty requires them to consider: (a) which offence was committed; (b) whether it is a single act or a series of related acts; (c) the injury outcome; (d) the victim’s status (specified or not); and (e) whether there is a pattern of family violence. The escalator provisions create a hierarchy: the decision-maker must check whether any of the escalation triggers apply. For example, if a victim suffers a “very serious physical injury” from what would otherwise be a Category D assault (e.g. a punch that causes permanent loss of sight), the act is escalated to Category A (Schedule 1, clause 1(c)). In family violence contexts, related criminal acts that occur in that context and would otherwise be Category B are escalated to Category A (clause 1(d)), and similar escalations exist for Category C and D (clauses 2(f), 3(e)). The decision-maker has a duty to apply the correct table - Table 1 for single acts, Table 2 for series of related acts. The distinction is not always clear: for example, a victim of repeated assaults over three years by the same partner might claim a series of related acts, but the decision-maker must determine whether they are “related” (the Act does not define “related” in the Regulations, but the Act likely defines it - the Regulations do not help). Practitioners must also note that the minimum amount is a floor, not an entitlement in all cases. The Act permits the decision-maker to reduce an award if the victim’s conduct contributed to the act of violence, or if the victim failed to take reasonable steps to mitigate loss (if loss-related), or if the victim was convicted of a serious violent offence in the preceding five years. So the minimum is not guaranteed. There is no duty to pay within any timeframe specified in the Regulations - that is a matter for the Act. The Regulations do not create a right of review or appeal; those are in the Act (likely internal review and VCAT review). The Regulations also do not create any duties on third parties - for example, no duty on employers to report, or on doctors to document injuries in a particular way - but in practice medical evidence will be critical for establishing whether a very serious physical injury or serious injury has occurred.

The Regulations themselves do not create any penalties or enforcement mechanisms. They are purely prescriptive - they set amounts and categories. The enforcement teeth are in the Act: if a person makes a false or misleading statement to obtain assistance, that may be an offence under the Act or under the Crimes Act 1958 (obtaining financial advantage by deception). The Regulations do not create any criminal offences. However, there is an indirect enforcement effect: if the administrator gets the categorisation wrong, a victim may apply for internal review or appeal to VCAT, and the decision may be overturned. That is a form of enforcement through accountability. The Regulations also have no compliance burden on regulated entities - they do not require businesses to file reports, keep records, or train staff. The compliance burden falls entirely on the administrative agency that processes claims. That agency must ensure that its officers correctly apply the escalator rules and the Tables. The risk of error is real because the definitions are layered: an injury might be “serious” but not “very serious physical injury”; a person might be 54 but not yet “elderly” (for non-Aboriginal people) - the eligibility for escalation changes on a birthday. The Regulations do not set a statute of limitations for claiming; the Act presumably does. The sunset provision (10 years) is a legislative risk: if the Regulations are not remade before 12 November 2034, they lapse, and the Act would have no operative categories or amounts - the scheme would grind to a halt. That is a rare enforcement mechanism: the automatic expiry forces a government to actively re-make the instrument, which provides an opportunity for review and amendment. There is no penalty for the administrator failing to pay on time, but the Act may provide for interest or other remedies. The Regulations also do not include any indexation mechanism: the dollar amounts are fixed in 2024 dollars and will erode with inflation. That is a structural feature - no automatic adjustment - which means a victim in 2034 will receive the same nominal amount as a victim in 2024, reducing real compensation. This could be seen as a hidden penalty on later claimants.

The Regulations are part of a wider legislative matrix. They are made under the Victims of Crime (Financial Assistance Scheme) Act 2022, which repealed the Victims of Crime Assistance Act 1996. The 2022 Act establishes a new scheme with a different name (“financial assistance” rather than “compensation”) and different rules. The Regulations replace the previous categories and amounts that were in the 1996 Act’s regulations. By cross-referencing specific offences in the Crimes Act 1958, the Regulations incorporate by reference definitions of sexual penetration, sexual assault, intimate image, sexual servitude offence, commercial sexual services offence, and threat to commit a sexual offence. This means any amendment to those Crimes Act provisions automatically changes the scope of the categories - a risk that is not mitigated by any grandfathering. The Regulations also cross-reference the Summary Offences Act 1966, Division 4A of Part I, which deals with stalking. That means stalking is a Category D act of violence (unless escalated by injury or specified victim status). The definitions of “impaired mental functioning” reference the Mental Health and Wellbeing Act 2022 and the Disability Act 2006, so changes to those Acts (e.g. renaming a condition or expanding the definition of intellectual disability) will flow through. The Regulations also implicitly interact with the Family Violence Protection Act 2008, because patterns of family violence are a trigger for escalation to a higher category (e.g. Category B related acts in a family violence context become Category A). This interaction may require evidence from family violence intervention order proceedings or police reports. The Subordinate Legislation Act 1994 governs the making and sunsetting of these Regulations - they expire after 10 years unless remade. There is interaction with the Interpretation of Legislation Act 1984 for rules about headings, examples, and punctuation in statutory rules (as noted in the Endnotes). The Regulations do not directly interact with the Wrongs Act 1958 (tort law), but they are an alternative to civil damages; a victim cannot double-dip, but the Act likely has provisions requiring repayment if damages are later recovered from the offender. Practitioners must check whether accepting a special financial assistance payment affects a victim’s right to pursue common law damages or statutory compensation from other schemes (e.g. the Transport Accident Commission or WorkCover). The Regulations themselves are silent on this, but the Act or other Victoria legal principles may preclude double recovery. There is also potential interaction with the Commonwealth’s National Redress Scheme for Institutional Child Sexual Abuse, because a victim of institutional abuse could potentially qualify under both schemes - but the Act likely prohibits double recovery for the same harm.

These Regulations are version 001 - the original made version. The Endnotes state there are no amendments made to these Regulations by statutory rules, subordinate instruments or Acts. They were made on 12 November 2024 by the Governor in Council and came into operation on 18 November 2024. The sunset date is 12 November 2034. Any amendment will appear in future versions. Given that the Act itself (Victims of Crime (Financial Assistance Scheme) Act 2022, No. 21/2022) has been operational for some time but the Regulations are new, this is the first time a comprehensive tariff has been set under the new Act. It replaced the previous regulations under the 1996 Act. There is no amendment history yet, so readers should monitor the Victorian legislation website for future changes. The table of amendments in the Endnotes is blank. The Regulations were gazetted in S.R. No. 127/2024. The version as at 18 November 2024 is the only version. There is no indication of any transitional provisions in the Regulations, but the Act may contain transitionals. The absence of any indexation mechanism means that if costs rise, the government will need to amend the Tables in regulation 7 to adjust the amounts - political pressure may build for that as inflation erodes the real value. Any future amendment would likely be prompted by review under the Subordinate Legislation Act 1994, which requires periodic review.

As of the date of publication, no litigation has been reported on these Regulations. They are too new. The Endnote on “Explanatory details” states “No entries at date of publication.” Because the Regulations are subordinate legislation, they cannot be challenged on their merits, but they could be challenged on ultra vires grounds (e.g. if they prescribe a category or amount that exceeds the power in section 73 of the Act) or on procedural grounds (if the making process was flawed). The Act’s decision-making under these Regulations will likely generate litigation at VCAT and before the Supreme Court (on questions of law). Future litigation could test the interpretation of “very serious physical injury” - e.g. whether “permanent or of long-term duration” means six months or five years, or whether “loss of a bodily function” includes loss of smell or loss of a finger. The distinction between “serious injury” and “very serious physical injury” is fact-intensive and will generate disputes. The escalation provisions - particularly the tests for “in the context of a pattern of family violence” and “series of related criminal acts” - are likely to be litigated because they increase the payment band significantly. The definition of “specified victim” for “elderly” will be tested: a person who turns 65 on the date of the act but whose birthday is after the act? The regulation says “on the date of an act of violence” - so exact date matters. The “Aboriginal person” definition also invites dispute: the three-part test (descent, self-identification, community acceptance) may be difficult to prove in an administrative setting, especially if the victim has lost connection with community. There may also be litigation about the relationship between these Regulations and the Act’s power to reduce awards - whether the minimum amounts are truly floors or can be reduced below the minimum in certain circumstances (the Act may have its own provisions; the Regulations do not address this). Practitioners should watch for early VCAT decisions on these points.

Several traps in the Regulations can trip up applicants and their advisers.

Injury escalation is not automatic. An act of violence that directly results in a very serious physical injury is only escalated to Category A if it would otherwise be a category B, C or D act of violence (Schedule 1, clause 1(c)). So if the underlying act is already a Category A (e.g. murder), no further escalation applies. Similarly, for a specified victim suffering a serious injury, the escalation to Category B only applies if the act would otherwise be Category C or D. Practitioners must check the base category first.

Family violence escalation requires related criminal acts. The escalation to Category A for family violence only applies if the act consists of related criminal acts that occur in the context of a pattern of family violence and the act would otherwise be Category B. A single act of family violence (e.g. one assault) does not get the family violence escalation to Category A - it stays in Category D or C (unless injury elevates it). The “series of related criminal acts” concept is thus critical.

Defined terms are imported from other Acts, but the Regulations do not reproduce the full definitions. For example, “sexual assault” is defined by reference to Crimes Act 1958 s 40(1), but that section uses the term “sexual assault” in a specific way - it requires penetration. So “sexual assault” in these Regulations means a penetration offence, not a broader meaning. That may confuse lay readers who think of sexual assault as including non-penetrative acts. Non-penetrative sexual offences (e.g. indecent assault) likely fall under “sexual activity” or “category B” (because attempted sexual penetration or sexual assault with a specified victim may capture them, or they could fall under category D if not otherwise specified). But careful cross-referencing is needed.

The “series of related criminal acts” distinction changes amounts by exactly 25%. Check Tables 1 and 2: the minimum for Category A single act is $9,334; for a series it is $11,668 (25% more). The maximum goes from $20,000 to $25,000 (25% more). The same ratio applies to all categories. This is mechanically simple, but it means the decision-maker must determine whether the criminal acts are “related”. The Act may define “related” - if not, common law principles of same series, same offender, same context will apply. This invites argument.

The “specified victim” definition depends on age or impairment at the exact date of the act. If a victim turns 65 the day after the act, they are not a specified victim. Similarly, if a person has impaired mental functioning but not on the specific date (e.g. they develop an acquired brain injury later from the act), they are not a specified victim for the purpose of that date. The Regulations are clear: “on the date of an act of violence or the date of a criminal act forming part of an act of violence”. This may be harsh for victims whose impairment is caused by the act itself - they cannot rely on being “specified” for the escalation, though they may still qualify for injury escalations.

The minimum amounts are not indexed. $260 in 2024 will be worth much less in 2034. This is a de facto reduction in real assistance over time. There is no provision for CPI adjustment.

Category D includes a catch-all for acts not otherwise specified. That means any criminal act that is an act of violence (per the Act) will always fit somewhere, but the catch-all may include minor offences that the drafter did not anticipate. It also means that an offence not listed in Categories A-C may still attract the lowest band. But the catch-all does not save an act that is not a “relevant offence” under the Act - the Regulations do not expand the Act’s scope.

The definition of “serious injury” uses “substantial and protracted” - no quantitative thresholds. This is a classic litigation magnet. A broken leg that heals in six months may be “substantial and protracted” or not. The absence of a minimum duration creates uncertainty.

Practitioners should not confuse “special financial assistance” with other payments. The Regulations set amounts only for “special financial assistance” under s 11 of the Act. There may be other payments (economic loss, medical expenses, funeral expenses) under other parts of the Act that are not regulated by these Regulations. The Regulations only deal with the fixed tariff.

Compliance with these Regulations is not about filing forms; it is about correctly applying the categorisation system to ensure victims receive the correct amount. For a practitioner advising a victim, the steps are:

1. Identify the act of violence. Determine the specific criminal conduct (e.g. assault, robbery, sexual penetration) and whether it is a single criminal act or a series of related criminal acts. Gather police reports, evidence of pattern (e.g. multiple occasions, same offender, family violence context).

2. Determine the base category. Use Schedule 1 to find the lowest category that matches the offence. For example, a non-aggravated burglary without injury might be Category D (assault? No - burglary is not listed specifically; but if it involves an assault, it may be in Category D under “assault” or the catch-all. A simple assault is Category D clause 4(a)(iv). An assault causing serious injury would be Category C (conduct inflicting serious injury). Check all applicable subclauses.

3. Check escalation triggers. In order: (a) Did the act directly result in death or very serious physical injury? If yes, escalate to Category A (even if base is lower). (b) Is the victim a specified victim? If yes, check escalation rules for specified victims (e.g. if base is Category D and victim is specified, escalate to Category C - clause 3(d)). (c) Is there a pattern of family violence? If yes, and the act consists of related criminal acts, check the escalation rules for that context. (d) Did the act directly result in a serious injury to a specified victim? If yes, and base is Category C or D, escalate to Category B (clause 2(e)).

4. Determine whether it is a single act or a series. If the criminal acts are related (e.g. same offender, same pattern, close in time), use Table 2 amounts. Otherwise use Table 1.

5. Apply the minimum and maximum. The decision-maker has discretion within the range, subject to the Act’s reduction provisions. A victim should be prepared to provide evidence of harm to support a higher award within the range - but the Regulations give no criteria for where within the range the award should fall. That is in the Act or guidelines.

6. Document all evidence - medical reports for injury severity, age verification for specified victim, evidence of Aboriginality if relevant, and evidence of the pattern of family violence (e.g. intervention orders, police call-outs).

7. Apply promptly. The Act likely has a time limit (not in Regulations).

8. Be aware that the amounts are not compensation for economic loss. If the victim has lost income, they must apply under other parts of the Act (if available). The special financial assistance is in addition to but not duplicative of other payments.

For the administrator, compliance means training staff on the hierarchy of definitions and the escalator logic. Checklists should be designed to catch all possible escalations. The risk of underpayment (if an escalation is missed) leads to internal review and potential VCAT orders to pay the correct amount. The risk of overpayment leads to recovery actions. Given the modest amounts, litigation may be costly relative to the sum in dispute, but principles matter.