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[2026] QCAT 89
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2026-02-19
Original judgment source is linked above.
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - general administrative review - where the applicant applied for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) - where assistance refused by reference to Victim Assist Queensland guidelines and table of costs - where assessor failed to take relevant considerations under the guidelines into account
Victims of Crime Assistance Act 2009 (Qld), s 39, 131, s 132
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634
L Benjamin, Office of General Counsel, Department of Justice and Attorney-General
[1] The applicant, AC, has applied for a review of a decision of the Respondent ('VAQ') to refuse AC's claim for financial assistance for counselling services.
[2] AC's claim was brought under the Victims of Crime Assistance Act 2009 (Qld) ('the Act'). She claimed, and QVA has accepted, that she and her daughter had been the victims of violence committed by AC's former husband commencing in 2003. AC has been diagnosed with post-traumatic stress disorder, anxiety disorders, and depression.
[3] AC first made an application to VAQ for financial assistance on 29 September 2021, seeking recognition payments and medical expenses. On 3 April 2023, VAQ made a decision recognising her eligibility to make a request.
[4] On 21 April 203, AC requested reimbursement of fees for psychotherapy services provided by LC. At the time of the request, AC had incurred fees and expenses of $1065 between 25 August 2022 and 16 March 2023.
[5] On 23 May 2023, VAQ made a decision ('the Original Decision') to make a payment to AC in recognition of various physical and psychological injuries she had sustained. However, it refused her request for LC's counselling expenses on the grounds that LC was not a 'qualified person' for the purposes of its guidelines, namely, Victim Assist Unit Guideline 1: Granting financial assistance for counselling expenses ('Guideline 1') and Victim Assist Unit Guideline 3: Determining financial assistance for medical and counselling expenses ('Guideline 3').
[8] The Table of Costs links to, and apparently adopts, a table of costs issued by WorkCover. It states that:
The fees in the Table of Costs [i.e. the WorkCover table of costs] are payable only to health professionals who meet the provider eligibility criteria outlined in the current Medicare Benefits Schedule.
[9] The WorkCover table of costs applicable to mental health services specifies that the appropriate qualifications for a counsellor or psychotherapist are either a full clinical member of the Psychotherapy and Counselling Federation of Australia (PACFA), or a level 3 or level 4 member of the Australian Counsellors Association (ACA). Because LC was not registered as holding any of these qualifications[1], she was not a qualified person under the Guidelines. Assistance with LC's fees was therefore refused.
[10] On 2 February 2024, VAQ confirmed that decision on LC's application for internal review ('the Internal Review Decision').
[11] The Internal Review decision also took account of further submissions made on behalf of AC. Briefly, those submissions were that, because exceptional circumstances existed for AC, LC's services should not be treated as counselling expenses under s 39(a) of the Act but as "other reasonable expenses incurred, or reasonably likely to be incurred, by the victim to significantly help the victim recover from the act of violence" under s 39(g) of the Act. However, it found that the appropriate provision under which to assess counsellors' fees was s 39(a) and that, if the services did not qualify under that provision, it would be inappropriate to grant them under a different provision.
(a) Her claim is for reasonable counselling services within the meaning of s 39(a) of the Act.
(b) The Tribunal is not obliged to follow the limitations under Guideline 1 with respect to the appropriate qualifications.
[13] In interpreting the Act, it was submitted that the Tribunal should have regard to the Explanatory Notes to the Bill for the Act[2], which state that (inter alia) "it aims to provide a tailored, needs-based response." Further, as beneficial legislation, it should be given a liberal interpretation and resolve ambiguities, as far as a fair reading of the language allows, in favour of the applicant.
[14] It was submitted that LC's counselling expenses were eligible for reimbursement as 'reasonable counselling services' within the meaning of s 39(a) of the Act. There being no dispute that the expenses were for counselling, incurred by the victim, and incurred as a direct result of the act of violence: the remaining issue was whether the expenses were reasonable.
[15] It was submitted that VAQ answered this question by the application of Guideline 1: the Internal Review Decision stated that VAQ's assessors "must consider" the Guidelines and policies when assessing applications for financial decisions.
[16] However, it was submitted, the Guidelines themselves reflect that the ultimate issue is whether the statutory requirements have been met: in this case, whether the counselling expenses were reasonable. This requires an evaluative judgment having regard to all the relevant circumstances. The Guidelines assist with this function, but do not answer it and do not have statutory force. While s 131(4) of the Act requires assessors to 'have regard' to the policy, it does not prescribe that it be followed.
[17] Therefore, it was submitted, the statutory question of whether the counselling expenses were reasonable should generally involve consideration and synthesis of such matters as:
(a) the costs, including whether they are comparable to the Table of Costs;
(b) whether the counselling is demonstrably beneficial;
(c) whether the counselling achieves the objective of being 'tailored and needs-based';
(d) the counsellor's knowledge, qualifications and expertise;
(e) whether there are any other alternative treatments;
(f) the applicant's preference, as referred to in Guideline 1; and
(g) any other matter in the relevant Guidelines.
[18] Because the Internal Review Decision did not give real consideration to the statutory question of whether the counselling expenses were reasonable, it was submitted that it fell into error.
[19] It was submitted that the correct and preferable decision would be to find that the expenses were reasonable, taking into account:
(a) Treatment by other mental health professionals, including a clinical psychologist and a psychiatrist, had been ineffective;
(b) LC's training in trauma-focused therapy has had a positive effect on AC, such that she was able to discontinue certain medications and reduce her dosage for others;
(c) The opinion of AC's GP of 40 years that LC's counselling had been effective;
(d) The expenses were in line with the Table of Costs;
(e) VAQ had acknowledged that AC's request was not unreasonable;
(f) Guideline 1 imposes an arbitrary distinction between full clinical members and certified practising members of the PACFA.
(a) It was incorrect to say that AC's application for financial assistance was refused because it was unreasonable; rather it was refused because LC was not registered in accordance with the Guidelines.
(b) The operation of section 131 of the Act requires the decision-maker to have regard to the Guideline in determining what is reasonable in the circumstances. The Guidelines are therefore a relevant factor. The present case is an example of a lawful policy that leaves the range of discretion intact while the guiding the exercise of power and where policy provides assistance in arriving at the relevant decision.
(c) There are three recognised grounds for not applying policy or giving it little or no weight:
(i) The policy requirements are no in accordance with the law; or
(ii) The merits of the case warrant departure from the policy (justice to the individual requires it); or
(iii) The policy is obsolete or outdated.
(d) The facts show that AC had access to the professional standards requirements as set out in the Guideline before electing to accept services from LC and had nonetheless elected to proceed with LC.
(e) In circumstances where the assessor and the Tribunal are not in a position to individually assess the suitability of each treating professional who might propose to treat particularly vulnerable people, the preferable decision is rely on the guidance and safety offered by the Guideline in order properly to protect victims in line with the objects of the Act.
(f) There were no persuasive reasons offered for the Tribunal to depart from the Guideline and the protection offered by appropriately qualified practitioners. The preferable decision must be that financial assistance should not be granted for a practitioner who does not meet the professional standards outlined in the Guideline.
[21] It was submitted for AC, in reply to VAQ's submissions:
(a) VAQ's submissions wrongly elevate the Guideline to an additional or adjunct requirement for approval of counselling expenses. VAQ abdicated its decision-making obligation by slavishly following it. The Guideline is, rather, a policy which must be considered in determining whether the expenses are reasonable. Accordingly, whether the professional standards are met is just one consideration in that analysis. Discretion cannot be truncated by policy to preclude consideration of the merits.
(b) VAQ's submission rely blindly on the application of the Guideline with respect to the qualification and fail to engage in a proper analysis of the broader question of whether the costs claimed are reasonable. The matters listed at paragraph [18] above are persuasive reasons to depart from the Guideline. VAQ's failure to engage with these reasons is illustrated by its criticism of AC's decision to cease treatment with her previous practitioners and to engage LC, when her evidence was that the previous practitioners were not helpful to her, while LC demonstrably was. A departure from the Guideline in these circumstances is consistent with the object and purpose of the Act to provide a 'tailored, needs-based response."
(c) There is no evidence to support any suggestion that LC poses a risk to vulnerable persons.
[22] Both parties made further submissions on the application of the Human Rights Act 2019 (Qld) to the decision under review. It is not necessary, for the purposes of this decision, to traverse them.
[23] The central issue in this matter is the proper application of departmental policy to a discretion exercised under a statute.
[24] As noted above, AC has made a claim for counselling expenses pursuant to s 39(a) of the Act. Section 131 of the Act provides for the making of guidelines for, inter alia, the performance of functions or exercise of power by a government assessor with responsibility for deciding such applications for assistance. Relevantly, s 131(4) provides that an assessor "must have regard" to the guidelines when performing the function or exercising the power.
[25] Extracts from the relevant guidelines, Guideline 1 and Guideline 3, are at paragraphs [6] and [7] above. Both guidelines require reference to the Table of Costs. Guideline 1, in stating that assistance is available "where the counsellor has the appropriate qualifications" requires reference to the Table of Costs, and thence to the WorkCover table of costs, to find the appropriate qualifications.
[26] Section 132 of the Act provides for the Table of Costs. Subsection 132(4) provides:
In having regard to the table of costs, a person must give proper weight to, but is not bound by, the table.
[27] Accordingly, there are two policy sources to which an assessor under the Act is directed: the Guidelines and the Table of Costs. An assessor is required to "have regard" to the Guidelines and, in having regard to the Table of Costs, "give proper weight" to it without being bound by it.
[28] I have been mindful of VAQ's submissions concerning the proper regard to which the Tribunal should have to government policy on the exercise of the discretion by assessors in light of ss 131 and 132, particularly the formulae in Drake v Minister for Immigration and Ethnic Affairs[3]and Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[4]. In doing so:
(a) I consider that the guidelines and the Table of Costs, read with ss 131 and 132, are lawful policies which 'leave the range of discretion intact while guiding the exercise of power'[5]; and
(b) I observe that, as appropriate guiding policy, the Guidelines and Table of Costs should be applied insofar as they produce a just result[6].
[29] The Original Decision cited Guideline 1 and Guideline 3, but apparently relied only upon paragraph 5 of Guideline 1 (the extract quoted in paragraph [6] above) as the basis for the refusal.
[30] The Decision, while acknowledging receipt of material that AC's GP supported the use of LC's services and that AC had claimed not to have experienced similarly successful results with other practitioners, determined:
Victim Assist Queensland supports an applicant's ability to choose a preferred counsellor and receive financial assistance as per the published Victim Assist Queensland Table of Costs, where the counsellor has the appropriate qualification.
The VAQ table of costs refers assessors to consider the WorkCover table of costs. It is VAQ's policy that medical and counselling expenses should be considered in line with the WorkCover table of costs, this includes who is a suitably qualified practitioner, what treatments are approved, and the appropriate cost of services.
As per WorkCover's published 'Mental health Services - Table of Costs', a suitably qualified psychotherapist is a full clinical member of the Psychotherapy and Counselling Federation of Australia (PACFA). Therefore, it is VAQ's policy that if an applicant is requesting assistance with the cost of counselling from a PACFA member, they must be a full clinical member.
[LC] does not meet this registration standard, and therefore, I must confirm the assessor's decision to refuse counselling costs for services provided by [LC].
[31] There is no evidence in the Original Decision or the Decision that the assessors took into account paragraphs 1 and 2 of Guideline 1:
[32] The author of the Decision, while acknowledging the receipt of AC's GP's assessment and AC's report of her experience with other practitioners, made no further reference to that material. There was no indication that, despite the reports of both AC and her GP, that any consideration was given to the question as to whether assistance with LC's fees would assist AC's recovery from her injuries, as per paragraph 1 of the Guideline. There was also no indication that this information was used "as a basis" for the Decision (as per paragraph 2 of the Guideline) or, indeed, that it was taken into account at all.
[33] I consider that these matters are material to the exercise of the discretion. In particular, having regard to subsections 131(4) and 132(4), information of this nature should have been weighed against the (non-binding) requirement for a counsellor to have full clinical membership of the PACFA.
[34] I do not have sufficient material before me to set aside the Decision and substitute my own decision. In particular, I do not have any material that would assist a determination of the substitutability, in AC's specific circumstances, of counselling services provided by a certified practising member of the PACFA for those of a full clinical member of the same body. I would not consider simple reference to the relevant WorkCover item number to be a genuine application of paragraphs 1 and 2 of Guideline 1.
[35] In these circumstances, pursuant to s 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the most appropriate course is to set aside the Decision and return it to the decision-maker with a direction that AC's request for assistance be reconsidered in accordance with these reasons.
[1] LC is a certified practicing member of the PACFA, rather than a full clinical member of that organisation.
[2] Tabled in Parliament on 18 August 2009.
AC
Scheme Manager, Victim Assist Queensland, Department of Youth Justice and Victim Support [2026] QCAT 89
(1979) 24 ALR 577