We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.
Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.
On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.
While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.
So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.
Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.
As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.
Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.
We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?
At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.
In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:
Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.
This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.
Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?c