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Kerr, Anna --- "How we are failing victims of family violence" [2019] PrecedentAULA 31; (2019) 152 Precedent 16


By Anna Kerr

In 1985, the United Nations’ Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[1] provided that victims of crime are entitled to access to support services, information about their case progress, involvement in proceedings and sentencing, restitution and compensation.[2]

Article 12 of the Declaration states:

‘When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.’

By the 1990s Australian states were enacting legislative provisions concomitant with the Declaration.[3] All Australian jurisdictions now offer at least some financial assistance to victims of crime, including victims of family violence.[4] However, compensation is severely restricted by statute.

Statutory barriers disproportionately disadvantage victims of family violence compared with other crimes.[5] For example, Victoria recently conducted a review of the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) following the Royal Commission into Family Violence. The terms of reference included to ‘seek answers to the question of what changes should be made to the VOCAA to better assist victims of family violence rebuild their lives and recover’.[6] However, a ‘supplementary’ term of reference for the 2018 review was: ‘The Commission is also asked to bear in mind that a state-funded financial assistance scheme must also be efficient and sustainable for the state.’[7]

Victoria’s current approach to providing support for victims of family violence is as follows:

‘Flexible support packages are available to people who are experiencing or have experienced family violence. The department recognises the gendered nature of family violence, consistent with the Royal Commission into Family Violence, it is noted that “the significant majority of perpetrators are men and the significant majority of victims are women and their children”. Women alone and women with children are therefore expected to be the primary recipients of flexible support packages.’[8]

But are ‘flexible support packages’ being favoured over traditional compensation because they better assist victims to rebuild their lives and recover? Or are they simply a cost-saving measure effectively designed to reduce the state’s potential liability for endemic male violence against women?

Many law firms post information on their websites about how to maximise compensation payments for personal injury. However, at the risk of appearing facetious, we suggest these additional tips.


According to the Motor Accidents Compensation Act 1999 (NSW), the maximum amount a court may award for non-economic loss is $284,000.[9] The maximum amount payable for non-economic loss pursuant to the Civil Liability Act 2002 (NSW) is $350,000.[10] Meanwhile, in NSW, workers’ compensation for permanent impairment is set at a maximum of $577,050.[11] In contrast, the maximum ‘recognition’ payment available to a primary victim of a crime in NSW is $10,000.[12] Even the financial support available for loss of earnings and expenses available from NSW Victims’ Services is capped at $30,000[13] and the counselling available is limited to 22 hours.[14] From the perspective of an individual in a wheelchair, or someone who has suffered another equivalently catastrophic injury, all these maximum amounts must seem arbitrary and incommensurate with their loss. However, the amount available to victims of crime is without doubt the most manifestly inadequate.

Therefore, if you want to maximise compensation for personal injury you should ensure you are injured at work, or in a car accident, or at least in circumstances where you can bring a public liability claim against an insured organisation. Even for sporting injuries in NSW, the maximum amount payable as a consequence of a single incident is $171,000,[15] which exceeds what is available to you as a victim of crime.

It is worth noting that most workers’ compensation is paid to male claimants. In 2015-16, male employees accounted for 59 per cent of hours worked but 64 per cent of serious claims, while female employees accounted for 41 per cent of hours worked and 36 per cent of serious claims.[16]

Meanwhile, women who are injured while carrying out unpaid work in the home do not have access to any compensation scheme at all.[17] Loss of earnings calculations are also systemically skewed in favour of male claimants as a result of the persistent gender pay gap across all industries.[18]

Studies have also indicated that men are 70 per cent more likely than women to be involved in car accidents,[19] and are particularly over-represented in accidents involving serious injury and fatalities (although female passengers appear more equally represented than drivers).[20] According to 2017 statistics, in NSW males made up 64.4 per cent of serious injuries from motor vehicle injuries while females made up only 35.6 per cent,[21] again reinforcing the fact that men are likely to be the primary recipients of these larger compensation payouts.


If you must be a victim of a criminal assault, you should avoid being assaulted in NSW, where the financial assistance available is the lowest in Australia. The maximum amount of financial assistance offered by other states to primary victims of violent crimes ranges between $40,000 and $75,000.[22] However, the Victims Rights and Support Act 2013 (NSW) offers a three-pronged Victims’ Support Scheme including:

(1) Counselling to eligible victims (22 hours).[23]

(2) Financial support[24] to specified eligible victims for:

(a) immediate needs (capped at $5,000);[25] and

(b) economic loss (capped at $30,000).[26]

(3) Recognition payments to limited categories of eligible victims with a maximum of $10,000 for primary victims and $15,000 for family members in cases of homicide.[27]

The introduction of this legislation drastically reduced financial entitlements to victims and marked the demise of compensatory provisions. In the Second Reading Speech, the Act that was repealed and replaced in 2013 was described as:

‘...financially unsustainable and overwhelmed by growth in demand, which led to protracted delays for victims in receiving compensation. The transition from the old scheme to the Victims’ Support Scheme involved a deliberate policy shift away from lump sum compensation to an immediate, flexible and responsive scheme, which is able to meet the needs of victims in a timely manner’.[28]

Victims’ rights are an area with high demand for law reform.[29] The initial impact of the Victims Rights and Support Act 2013 (NSW) produced shockwaves when applicants realised that the new law had retrospective application. This meant that applicants like Katrina Keshishian, who had applied for victims’ compensation after being raped by three men in 2008 and had waited six years for the claim to be processed, now found that the maximum entitlement of $50,000 had been slashed to $15,000.[30] Some lawyers reported that their clients required therapeutic interventions in order to deal with the shock of this virtual invalidation of their claim by the state.[31]

While the common law right to seek restitution from the perpetrator through the civil courts remains available to the victim, the success of such a claim renders the victim ineligible to also claim under the Victims’ Support Scheme.[32] Apart from this disincentive, the difficulty in pursuing a civil action is twofold. First, claimants are deterred by the cost of mounting the civil action and second, by the cost of enforcement, especially following the Fines Amendment Act 2017 (NSW), which means that a victim who is successful in court has to be self-reliant in pursuing enforcement of the perpetrator’s compliance with the court order.[33] So even if you took the precaution of being assaulted by a wealthy assailant against whom it could be worth commencing a civil action, you are likely to be shouldering the full burden and risks of the litigation process and enforcement, unaided by an insurance company or the state.


The next tip is to ensure that your assailant is a stranger rather than someone who is well known to you, such as an intimate partner or other family member. There are indications that our victims’ compensation systems discriminate against victims of domestic and family violence. Many victims have either been rejected for compensation or had their payments reduced because the laws do not appear to regard family and domestic violence crimes with the same seriousness as other crimes. For example, under ACT legislation,[34] maximum amounts of financial assistance are prescribed for different categories of victims. For primary victims, the maximum currently prescribed is $52,173.[35] However, where an application for financial assistance relates to family violence offences, the amount prescribed is only $10,434.[36]

Figures collected from the Justice and Community Safety Directorate's Annual Report 2015-2016 show that the number of domestic violence victims who received compensation from the ACT government dropped significantly in 2016, despite a rise in victims seeking help and a doubling of criminal charges linked to family abuse.[37] The report showed that only three domestic violence victims received payments, totalling about $16,381, with an average of $5,460 per victim.[38] This means that compensation given to victims of domestic violence in the ACT in 2016 made up less than 1 per cent of total funds paid out, despite the awareness of family abuse leading to an increase in reports of such crimes.[39]

Data collected from the Victorian Law Reform Commission also indicates that compensation claims for family violence in Victoria are less successful than compensation claims for other offences.[40] Of the 388 applications lodged in the context of family violence, 113 applications received assistance,[41] or 29 per cent. This means that in Victoria an application for assistance for family violence was less than half as likely to succeed as an application in respect of sexual offences, assault and robbery.[42]

In 2015, in Western Australia the Domestic Violence Legal Workers’ Network voiced concerns that victims of domestic violence were receiving reduced payments compared with those attacked by a stranger under Western Australia’s criminal injuries compensation system.[43] Many victims were being rejected for compensation or having their payments reduced because the laws did not take into account the complexity of family and domestic violence crimes.[44] It alleged that this was especially evident as the criteria for assessing claims assumed that the offender was a stranger.[45] For example, an offender was not allowed to benefit from any compensation paid to the victim, but that was a considerably difficult condition to be met where the offender and the victim shared property and children together.[46]

In one example provided by the Network, a victim was awarded a reduced payment of $37,583 because she allowed her previously violent partner to stay with her.[47] The Network wrote in a submission to the WA Law Reform Commission that: ‘While the assault was considered to be of a greater ferocity and savagery than any assault previously, it was held that the applicant has contributed to her injuries by allowing the perpetrator to stay’.[48] However, on appeal, her award was almost doubled to $75,000.[49]

In Queensland, there has been an increase in domestic violence-related financial assistance applications since the definition of crime was expanded[50] to include domestic violence as defined in the Domestic and Family Violence Protection Act 2012 (Qld).[51] By broadening the definition of what constitutes an injury under the Act, people with psychological and emotional injuries were able to apply, leading to a spike in applications (Victim Assist Queensland received 1,539 applications for financial assistance from domestic violence, up from 512 applications the year before).[52]

Collectively, the data gathered shows that the number of domestic violence victims who received compensation from state governments across Australia was significantly lower when compared to other claims for assistance for other criminal offences.[53]

If you are a female, it is far less likely that your assailant will be a stranger.[54] Research indicates that while men are more likely to be victims of violent crime than women, they are also more likely to have been assaulted by a stranger and in a public place.[55] According to the Australia Bureau of Statistics in 2016, the proportion of female victims of assault who knew their offender was almost twice as high as for male victims (81 per cent compared to 48 per cent), and for almost half of these female victims (49 per cent) the offender was identified as a family member (506 victims).[56] Conversely, male victims were three times more likely than females to have been assaulted by a stranger (33 per cent compared to 11 per cent).[57]

Furthermore, studies indicate that intimate partner violence is the leading contributor to death, disability and illness in Australian women aged 15 to 44.[58] It would therefore appear that compensation schemes which are skewed to assist victims of crimes committed by a stranger are skewed to assist male claimants rather than women. The inadequate compensation available for women who have been victims of domestic violence would appear to reflect the state’s limited interest in treating these victims fairly.


Be the victim of a one-off assault rather than a victim of ongoing abuse. Beyond the retrospectivity crisis identified in the NSW legislation, that legislation also failed to adequately address trauma suffered by victims of domestic violence – by offering no specific category of recognition payment for victims of domestic violence and no acknowledgment of adult victims of repeated violence now deemed as a single assault. Victims experiencing chronic and severely disabling psychological injuries who would have received between $30,000 to $50,000 previously were entitled to $1,500 under the 2013 Act.[59] This amount is not only inadequate to compensate victims but also undermines even the symbolic value of a recognition payment. Finally, the requirement of strict documentary evidence[60] from police or government agencies may be a hurdle too high for highly traumatised people. In the view of the lawyers working with women victims of violence, the ‘new scheme is a huge step backwards’.[61]

Meanwhile in Victoria, VOCAT has recommended that, regarding quantum of payments:

‘It is proposed that applicants who are the victim of two or more “related criminal acts” would be eligible for up to $25,000 in the form of a recovery payment/plan (rather than the maximum amount of $20,000). This is to recognise the cumulative impact of patterns of abuse in circumstances such as family violence.’[62]

Again, the additional $5,000 is grossly inadequate and hardly constitutes ‘recognition’ for a victim of long-term sustained abuse.

In Tasmania in June 2018, Justice Gregory Geason ruled that ‘violence’ in the Tasmanian Victims of Crime and Compensation Act could extend beyond physical acts.[63] The decision was in relation to a woman who had developed severe anxiety after suffering from emotional abuse and intimidation in the form of controlling behaviour and stalking by her husband.[64] The abuse allegedly stretched over seven years from 2008. Her application had been refused by the Criminal Injuries Compensation Commission because her former husband’s crimes did not involve physical violence. Justice Geason, however, believed the definition of violence could involve intimidation, emotional abuse, and economic abuse without the action of physical violence.[65]

Tasmanian Attorney-General, Elise Archer, later appealed the Court ruling which would have paved the way for victims of emotional abuse to apply for victims of crime compensation. Solicitor-General Michael O'Farrell SC also lodged appeal papers with the court to have Justice Geason's decision set aside, arguing that violence is confined only to physical violence or the threat of physical violence. The Tasmanian government is arguing that the judge ‘erred in law’ in accepting that emotional abuse qualified as violence.[66]

The Tasmanian appeal also comes despite statistics from 2014 published in the Australian Institute of Health and Welfare’s 2018 report on Family, Domestic and Sexual Violence in Australia, which shows that the majority of Australians acknowledged that non-physical violence (such as constant criticism, stalking, intimidation, and controlling social contact) were serious behaviours and a form of violence against women.[67] Tasmanian Premier Will Hodgman is an ambassador for the White Ribbon Campaign, but advocates for victims have now questioned whether his government’s attempts to combat family violence in Tasmania are genuine.[68]


The final tip is to ensure that you are a capable adult rather than a child or person with a disability or other vulnerability and that you, or those who care for you, have the capacity and presence of mind to report the crime to police and health services and lodge a claim within the prescribed time limit. Of course, if they are the perpetrators of the violence against you, this is particularly problematic.

In most states the relevant timeframes require that applications for financial assistance for victims of crime must typically be made within two to three years of the act of violence, although longer time limits and extensions are generally available in all jurisdictions for victims who were children at the time of the assault. However, the particular details vary greatly from state-to-state, and the need to supply reports from police and health practitioners to satisfy evidentiary requirements can also be prohibitive after a lapse of time. This is especially problematic if the crime was not originally reported, as is so often the case in relation to childhood abuse.

NSW was one of the first states to enact legislation in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse to remove time limitations on compensation claims for victims of childhood abuse, both sexual and serious physical, in amending the Limitation Act 1969 (NSW).[69] Section 6A(4) states: ‘This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.’ However, this amendment apparently does not apply to the payment of recognition payments under the statutory scheme administered by NSW Victims’ Services.[70] While under that scheme there is no time limit for applications by child victims of sexual assault, child victims of non-sexual abuse must still apply for a recognition payment before they are 28 years of age. There seems no sound rationale for this distinction between victims of sexual and non-sexual childhood abuse and it is particularly mean-spirited since payment is in any case capped at a mere $5,000.[71] It seems that other states have also been inconsistent in their amendments to limitation periods.[72]


Since the enthusiasm of the 1990s there appears to have been a gradual diminution in both the quantum and the commitment to protect the essence of the 1985 UN Declaration. In fact, the very word ‘victim’ is disappearing from view. The term ‘compensation’ has also begun to disappear in recent legislative shifts, replaced by ‘recovery programs’,[73] ‘support packages’ and ‘recognition payments’.[74] Recent government rhetoric announcing increased funding to tackle domestic violence appears to have taken the form of packages of services rather than compensation, and even these have arbitrarily restricted access to payments for victims of family violence.

The real driver behind this development may be an ‘opening the floodgates’ fear in relation to the state compensating victims of family violence. In summary, the present political clamour to care and protect victims of family violence may be a mask concealing legislative and bureaucratic manoeuvres to reduce the state’s commitment to compensation in favour of service provision, the reins of which can be tightly controlled for (mostly) women and children. It appears that a discourse of health and welfare in the form of paternal state-sponsored case management will prevail for women and children, rather than payment of compensation as envisaged by the Universal Declaration of the 1980s.

Rather than empowering women to leave violent and abusive relationships by providing an effective compensation scheme or at least adequate welfare payments and supported accommodation, avenues of financial and practical support for women are being increasingly restricted. Meanwhile, the government is instead backing microfinance arrangements to assist women to leave abusive relationships, knowing full well that these will leave women further indebted into the future despite being touted as life-saving.[75] This systemic refusal to fairly compensate women for the impact of male violence on their lives or to provide them with any viable means of escape is truly the patriarchy at work.

Anna Kerr is the Founder and Principal of The Feminist Legal Clinic, Sydney. WEBSITE

With thanks to the research team, Susan Doran, Maria Nazir, Madeleine Bosler, Cathryn Rothery and Jasmine Jevaherjian, who assisted in the preparation of this article.

[1] GA Res 40/34, UN GA Res, 40th sess, 96th plen mtg, UN Doc A/RES/40/34 (29 November 1985), Art 1.

[2] M Findley, S Odgers and S Yeo, Australian Criminal Justice, 5th ed, Oxford University Press, 2005, 354-67.

[3] This was enacted into the Victims Rights Act 1996 (NSW), Victims of Crime Assistance Act 1996 (Vic), Criminal Offences Victims Act 1995 (Qld), Victims of Crime Act 1994 (WA) and Victims of Crime Compensation Act 1994 (Tas).

[4] See, for example, Victims Rights Act 1996 (NSW), s29.

[5] C Forster, ‘Compensating for the harms of family violence: Statutory barriers in Australian victims of crime compensation schemes’, Journal of Law and Medicine, Vol. 22, 2014, 188-208.

[6] Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act 1996, Report No. 38 (2018) ix.

[7] Ibid, 3.

[8] Victorian Department of Health and Human Services, Program Requirements for the Delivery of Family Violence Flexible Support Packages, Mandatory Program Requirements (2016) 1.

[9] Motor Accidents Compensation Act 1999 (NSW), s134(1).

[10] Civil Liability Act 2002 (NSW), s16(2).

[11] Workers Compensation Act 1987 (NSW), s66(2)(h). See also State Insurance Regulatory Authority, Workers compensation benefits guide (October 2018) 12.

[12] Victims Rights and Support Regulation 2013 (NSW), s12(c).

[13] Ibid, s8(2).

[14] Ibid, s5(3).

[15] Sporting Injuries Insurance Act 1978 (NSW), sch 1, table B.

[16] Safe Work Australia, Australian Workers’ Compensation Statistics 2015-16, Report (2017) 12.

[17] Workers Compensation Act 1987 (NSW), s4A.

[18] Workplace Gender Equality Agency, Australia’s Gender Pay Gap Statistics, Fact Sheet (2019).

[19] University of Queensland, ‘Males 70% more likely than females to be involved in serious car crashes’, UQ News, 11 September 1998.

[20] Government of South Australia, Department of Planning, Transport and Infrastructure, Males and Females Involved in Road Crashes in South Australia, Fact Sheet (August 2014).

[21] Greenslips, Car Crash Statistics – Serious Injuries and Deaths by Road User, Gender, and Age Group, Fact Sheet (January 2019).

[22] Victims of Crime Assistance Act 2006 (NT), s38(1); Victims of Crime Assistance Act 2009 (Qld), s38(1); Criminal Injuries Compensation Act 2003 (WA), s31(1).

[23] Victims Rights and Support Act 2013 (NSW), div 4. See also Victims Rights and Support Regulation 2013 (NSW), s5(3).

[24] Victims Rights and Support Act 2013 (NSW), s30.

[25] Victims Rights and Support Regulation 2013 (NSW), s8(1).

[26] Ibid, s8(2).

[27] Ibid, s12.

[28] New South Wales, Parliamentary Debates, New South Wales Legislative Council, 20 June 2018, 29.

[29] M Vagg and L Snell, ‘Ten laws that need to change in 2015: ii Victims’ rights’, Law Society Journal Online, February 2015, <>.

[30] L Milligan, ‘Gang-rape victim Katrina Keshishian launches campaign to recover compensation lost in budget cuts’, ABC Online, 5 November 2014, <$35k/5865206>.

[31] Vagg and Snell, above note 29.

[32] Victims Rights and Support Act 2013 (NSW), s25(1).

[33] Fines Amendment Act 2017 (NSW), sch 2.

[34] Victims of Crime (Financial Assistance) Act 2016 (ACT).

[35] Victims of Crime (Financial Assistance) Regulation 2016 (ACT), s5(1)(a).

[36] Ibid, s5(2).

[37] Justice and Community Safety Directorate, Annual Report 2015-16, Report (October 2016) 289.

[38] Ibid.../customXml/item1.xml

[39] Ibid.

[40] Victorian Law Reform Commission, Review of the Victims of Crime Assistance Act, Supplementary Consultation Paper (2017).

[41] Ibid, 78.

[42] Ibid.

[43] R Turner, ‘Domestic violence victims receive lower compensation payments than those of other crimes, group says’, ABC Online, 24 December 2015, <>.

[44] Ibid.

[45] Ibid.

[46] Ibid. See also Criminal Injuries Compensation Act 2003 (WA), s36.

[47] Turner, above note 43.

[48] Ibid.

[49] Ibid.

[50] Criminal Offences Victims Act 1995 (Qld), sch 3, item 12.

[51] Div 2.

[52] L Stone, ‘Spike in payout claims as law includes victims of financial, emotional abuse’, The Brisbane Times (online), 28 January 2019, <>.

[53] Department of Social Services, The cost of violence against women and their children in Australia, Final Report, KPMG (May 2016) 7.

[54] Australian Bureau of Statistics, Personal Safety Survey Australia: Reissue (Catalogue No. 4906.0, 21 August 2006).

[55] S Brickwell, H Boxall and H Andrevski, Male victims of non-sexual and non-domestic violence: Service needs and experiences in court, Report, Australian Institute of Criminology (9 January 2014).

[56] Australian Bureau of Statistics, Recorded Crime – Victims, Australia, 2016 (Catalogue No. 4510.0, 06 July 2017).

[57] Ibid.

[58] Ibid.

[59] Victims Rights and Support Regulation 2013 (NSW), s12(e).

[60] Victims Rights and Support Act 2013 (NSW), s39.

[61] New South Wales, Parliamentary Debates, New South Wales Legislative Council, 20 June 2018, 29.

[62] Ibid.

[63] M Maloney, ‘Tasmanian government blocks domestic violence victim from seeking victims of crime legislation’, The Examiner (online), 29 August 2018, <>.

[64] R Witson, ‘Tasmania's Attorney-General “took no pleasure” in appealing against emotional abuse compensation’, ABC News Online, 29 August 2018, <>.

[65] Maloney, above note 63.

[66] E Bevin, ‘Victim compensation not for emotional abuse, intimidation, Tasmanian govt to argue’, ABC News Online, 19 July 2018, <>.

[67] Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia, Report, Australian Government (2018) 12.

[68] Ibid.

[69] Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (December 2017) Vol. 4, 88 and 99; s6A.

[70] Victims Rights and Support Act 2013 (NSW), s40.

[71] NSW Government Victims’ Services (web page), Recognition Payments, <>.

[72] Shine Lawyers (web page), Child abuse and time limitations: A second class of survivors (15 September 2017) <>.

[73] Relationships Australia Victoria (web page), Support and recovery programs, <>.

[74] NSW Government Victims’ Services, above note 71.

[75] Good Shepherd Microfinance, ‘Domestic violence victims offered life-saving loans’ (media release, 20 November 2018) <>.

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