BFO v Commissioner of Victims Rights

Application for Administrative Review 15On 19 March 2014 BFV completed an Application for administrative review under the Administrative Decisions Review Act 1997 in accordance with section 51 (1) of the VRSA, in respect of each of her three claims dealt with by the Commissioner. The Applications were lodged with the Tribunal on 5 March 2014. Having regard to service, and the provisions of the Administrative Decisions Review Act 1997 BFO's application was received out of time. I will address that issue in due course. 16The applications raise the following grounds: (1)I am seeking a review of the decision regarding my not receiving the Special Grant under Clause (5) (3) of Schedule 2. (2)There was no way that I could have reported the abuse within two years of it happening or by my 18th Birthday. Further particulars were supplied by BFO which amplified her grounds. 17The Tribunal's powers in relation to an application for administrative review are governed by section 63 of the Administrative Decisions Review Act 1997, which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 18BFO's matter was initially heard before Senior Member Molony on 2 May 2014. However after the initial hearing of the matters, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 19Correspondence was sent by the Registrar of the Tribunal to the parties on 15 August 2014 in respect of the section 52 'substitution' issue. The Respondent replied by letter dated 27 August 2014 indicating that they had no objection to the proposal. BFO responded on 10 September 2014 (after contacting the Tribunal on 29 August 2014). BFO indicated that she did not object to the substitution, and desired for the Member to hear / read all submissions that transpired at the hearing prior to making a decision. 20As a result, the provisions of section 52 (2) of the NCAT Act were satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act. 21I have had the benefit of examining the full transcript of the hearing before Senior Member Molony on 2 May 2014. I have read that Transcript. I have also read all of the material provided by both BFO (her application and submissions dated 15 April 2014 and the written submissions provided at the hearing), and all of the material provided by the Commissioner under section 58 of the NCAT Act. I have taken all of that evidence and material into account even though I may not specifically refer to all the evidence, material and submissions in these reasons.

Hearing on 2 May 2014 22On 2 May 2014 the matters came before Senior Member Molony for hearing. BFO appeared in person and Mr Matulewicz appeared on behalf of the Commissioner. 23The central issue before the Tribunal is whether BFO is eligible for a Special Grant under Clause 5 of Schedule 2 of the VRSA. 24However, one preliminary issue in relation to BFO's application before the Tribunal was not addressed at the hearing. In addition I can find no evidence of it being addressed in a preliminary fashion from the material on file. That issue relates to whether the application for review was received within time. I propose to deal with that issue now for the following reasons. 25The Respondent was legally represented and (notwithstanding the short period since the amendments) was in effect highly experienced in the provisions of the Victims Compensation / Support scheme. Preparation of the matter would have indicated the factual state in respect of the lateness of the appeal, and the fact that it was not raised either means that the Respondent was unaware of the matter, or did not take issue with the matter. In any event, the fact that they proceeded to argue submissions on the substantive issues (concerning the meaning of clause 5 (3) ) shows that by the time the matter was being heard, no prejudice attached to the Commissioner. From an examination of the Transcript, it is clear that the 'late appeal' issue was not canvassed by either the Tribunal or the Parties. 26The Notice of the Internal Review appears to have been received by BFO on 28 January 2014. Using the relevant provision, the 28 days commenced after the 4th working day following posting. Therefore time ends 28 days after 28 January 2014 which means that the application needed to be received on or before Tuesday 25 February 2014. The application was received on Wednesday 5 March 2014 just over one week out of time. 27BFO understands that her applications were received out of time. On the section of the Application for Review which covers late applications, BFO nominates her matters as being out of time and provides the following explanation. Over the past 7 weeks I have been dealing with the death of my father (my main perpetrator over a 16 year period). I have not received any family support in this time. I have been flooded with flashbacks, feelings, insomnia. I completely lost track of time with all that I am dealing with as a result of family schisms as a consequence of his death. 28Section 41 of the NCAT Act provides for extensions of time in these circumstances. 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 29I note that the matters occurring during the months of January and February 2014 are understandably linked to the serious acts of violence perpetrated against BFO during her childhood. For those reasons, and accepting BFO's reasons set out above, in the exercise of my statutory discretion of my own motion I extend the time for BFO to lodge her applications for administrative review to the Tribunal until 5:00pm 5 March 2014. 30This is not a case concerning a consideration of the evidence to prove the allegations of act of violence on the balance of probabilities, or the existence of injury. This matter relates to a consideration of the relevant statute as a whole, and the interpretation of the ordinary meaning of a specific clause. However, I believe that any consideration of such matters in this jurisdiction should also consider (as preliminary point) the impact that such provisions may have on a victim of violent crime, as the scheme is both beneficial and (subject to need), entitlement based. Such an approach is also consistent with addressing the matters raised by BFO at her hearing, and thus affords procedural fairness and natural justice to the parties in reaching my decision. 31BFO provided a compelling and insightful testimony into her victimology and the broad and life changing impacts that these serious and tragic matters have had on her. To endure abuse in the manner outlined by BFO, whilst of such young age, and evident vulnerability is a matter of great concern, and is indicative (at the extreme end of the scale) of the immediate and ongoing detriment that perpetrators are responsible for when they violently commit crime against their victims. To endure such abuse at the hands of immediate family and close relatives, in authority over her, makes BFO's experiences particularly tragic. The purpose of the schemes is to provide some remedy by way of support and rehabilitation to address in some way the damage to victims. 32BFO outlined in her testimony and submissions a number of issues relating to Clause 5. BFO advised the Tribunal about matters relating to the long term impacts of trauma, violence sexual abuse and child sexual abuse on an individual. Her evidence was that she was abused and tormented daily for many years over almost her entire childhood. Twelve years of twice weekly therapy / counselling sessions have occurred from BFO's late thirties when physical conditions arising from stress stated to become chronic. Many years of treatment have gone some way to mitigating the damage, but the impacts remain long term. BFO submitted that the VRSA discriminates against victims that do not bring their claims within two years or two years of reaching their legal majority at 18 years of age. BFO submitted that such compliance from a child abuse victim is emotionally impossible when familial abuse has occurred. 33BFO gave submissions which in essence go to the conflict between the objects of the scheme and the disentitling of certain victims to benefit from those objects. BFO submitted that the clause appears wrong and needs to be changed to benefit her and other victims in a similar situation to her. 34The Respondent submitted that the Clause does not permit any discretion. The Respondent also submitted that the structure of the VRSA (in respect of which remedies are available under it) arises from the New South Wales Government commissioned review into the Victims Compensation Scheme in 2012.

The Statutory Scheme 35Under the former scheme, BFO may well have been entitled to significant compensation for all of her successful claims combined. The nature and seriousness of abuse and the impact on victims has always been recognised by statutory victims compensation schemes in New South Wales. 36Whilst not as generous in respect of monetary compensation as former schemes, the VRSA does graduate the recognition payments into various classes, recognising the circumstances and impacts of different assaults on victims. Sections 35 and 36 of the VRSA outline three classes of awards for primary victims of violent crime. This is consistent with the various awards available by the decision maker on an assessment of the facts under the old Act, and its predecessor the Victims Compensation Act 1987 by way of the appropriate assessment of common law damages. 37Under the 1987 scheme, common law assessment of damages provided for up to $40,000 for pain and suffering, with up to $10,000 available for past and future expense, for each act of violence (including series of related acts). The 1996 scheme provided for up to $50,000 per act of violence (including series of related acts). That $50,000 was awarded from a table of compensable injuries, and if less than $40,000 was awarded, then up to $10,000 (from a combined ceiling of $50,000) was potentially available for past expenses. 38From an examination of Hansard, it is clear that each of the former schemes over time were considered to be financially unsustainable and as a result those schemes ceased, with the 1987 scheme being replaced by the 1996 scheme, and the 1996 scheme now replaced by the 2013 scheme under the VRSA. During the life of each scheme significant amendments occurred to both restrict the types of successful claims that could be brought, and lower the eligibility for some discrete claims (e.g.: the change in the definition of injury in late 2006). 39Other amendments focused on treatment and other methods of victims support and assistance. It is fair to say that broadly, on the face of the statute the VRSA provides a greater range of support and assistance for victims of violent crime. On the other hand, the financial 'compensation' potentially available is significantly reduced under the VRSA from the old Act, and unlike the move from the 1987 scheme to the 1996 scheme, the 2013 amendments were in effect retrospective. No doubt those matters arise from the financial considerations which in part drove the Governments reform of the scheme in recent years. 40I have set out the matters above concerning the different schemes and their various provisions for two reasons. One is to give some context to the grounds raised by BFO concerning the abuse that she endured, and the making of a claim under the 1996 scheme (including its eventual consideration by the Assessor and Review). The other reasons being what I infer to be the basis of the insertion into the schedule of the Clause 5 provision. That is that the provision (where it actually applies beneficially) only applies to claims which were captured by the retrospective action of the new scheme and the provisions of the VRSA.

Consideration 41Schedule 2 of the VRSA is titled: 'Savings, transitional and other provisions' The actual clause to be considered provides that: 5 Applications for compensation under statutory compensation scheme (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support. (2) The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both. (3) The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund. (4) In subclause (3): prescribed period means: (a) the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or (b) if the victim concerned was a child when the relevant act of violence was committed-within 2 years after the child reaches 18 years of age. (5) Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act. (6) The amount determined to be payable to the applicant under this clause is to be reduced by the amount of any interim award of statutory compensation made to the applicant under section 33 of the repealed Act. (7) The applicant is not required to refund any part of an interim award of statutory compensation made to the applicant under section 33 of the repealed Act that is more than the amount determined to be payable under this clause. 42It is clear from the wording of the clause, that the provisions of Clause 5 only apply to claims which were lodged under the old Act, but determined in the first instance under the new Act. I infer this from the wording of the Schedule, and the words 'statutory compensation scheme' as they appear in the clause. In addition, with the wholesale repeal of the old Act (but for the provisions relating to sections 36-38 as set out in Clause 16 of the Victims Support Regulation 2013 - "the Regulation"), Clause 5 both enlivens the retrospectivity of the VRSA to existing claims, but also provides the only legal power to consider those pending applications. 43Clause 5 (2) provides that the pending matters become eligible for victims support under the new scheme in the nature of approved counselling services, a recognition payment or both. The first passage of Clause 5 (3) however prevents such pre-existing or pending matters from receiving victims support in the nature of financial assistance for immediate needs or financial assistance for economic loss. 44The second passage of Clause 5 (3) provides for the issue under consideration in BFO's appeal. That is the 'special grant'. On one reading of subclause 3, the special grant could be considered to be offered in lieu of financial assistance for immediate needs or economic loss. I make this point because the Regulation makes provisions for financial assistance for immediate needs in the same amount. ($5,000). Economic loss is calculated slightly differently from immediate assistance. 45However, notwithstanding those amounts, as the 'special grant' appears unconditional (as long as an applicant is a victim of an act of violence and had lodged their claim within 2 years of the incident or before their 20th birthday), on one analysis the grant could be considered to offset the limited award available under the new Act, due to the claim not being determined prior to 4 June 2013. This offset may be because the recognition payments are in the main lower than the former compensation for compensable injury, and that these claims are prohibited from the financial support set out in Clause 8 of the Regulation. 46In addition to examining the acts and regulations that apply to the current and former schemes, I have examined the Hansard records and amendment instruments of the VRSA when it was before the Parliament. 47Mr Brad Hazzard MP on behalf of the then Attorney General gave the second reading speech in the Legislative Assembly on 7 May 2013. The relevant commentary in respect of the Clause is as follows: The Victims Compensation Scheme will be closed immediately. All existing claims that have not yet been finalised will be transferred to the Victims Support Scheme. This will provide a speedier resolution for victims with existing claims, who will be able to seek counselling and a recognition payment right away plus an additional payment of $5,000, provided they lodged their claim within two years of the incident or of turning 18 if they were a child at the time. This will enable the contingent liability to be addressed expeditiously. (Emphasis added) 48On 29 May 2013 the Hon Michael Gallacher gave the second reading speech in the Legislative Council. That speech referred to the Clause / additional payment for existing claims in identical terms to Mr Hazzard MP. 49In debate on 7 May 2013 in the Legislative Assembly, Mr Andrew Rohan MP (for Smithfield) spoke in response to objections to the Bill. He reiterated the comments concerning the additional payment and provisions for existing claims. Transitional provisions provide for the immediate closure of the Victims Compensation Scheme, with all claims outstanding to be transferred to the new scheme. This will enable victims with existing claims to receive immediate recognition payments and access counselling as well as a payment of $5,000 rather than having to wait and receive a contingent payment - provided that they meet the lodgement requirements. (emphasis added) 50On analysis it would appear that there are a number of reasons for the provision which limits the availability of special grants to old claims. On one assessment, the provision introduces the new limitation periods for lodging claims under the new Act, to old Act matters. That is the general requirement to lodge a claim within two years of the incident or two years from turning 18 years of age, will apply equally to all claims dealt with under the VRSA, irrespective of whether they were lodged under the old Act or the VRSA. But I note that this provision only applies to old Act matters in respect of a special grant, and not counselling or recognition payments. This would appear somewhat inconsistent. 51Additionally, the assessment outlined above is complicated by the fact that fresh claims lodged under the VRSA (whilst generally required to be lodged as outlined in paragraph 50 above), may in certain instances be lodged up to 10 years after the act of violence, or up to 10 years after the applicant turns 18 (if the Act of violence occurred before they turned 18), whichever is the more beneficial to the applicant. (See section 40 (5) of the VRSA). Such provisions apply in acts of violence which constitute domestic violence, child abuse or sexual assault. This provision in part replicates the favourable limitation provisions for those types of discrete claims that were referred to in section 26 (3) (b) of the old Act. 52In any event other than for obvious continuing financial viability considerations of the scheme, on my assessment there is no one specific explanation of the basis for the limitation imposed by the clause, on access to special grants for claims lodged under the old Act. 53I note that the objects of the VRSA are contained within section that precedes the relevant Parts of the Act. The various objects are: Object of Part 2 Victims Rights (4) The object of this Part is to recognise and promote the rights of victims of crime. Object of Part 4 Victims Support Scheme (17) The object of this Part is to establish a scheme for the provision of support for victims of acts of violence. 54The relevant object of the old Act was: Objects of Act The objects of this Act are as follows: (a) to provide support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme, 55It is interesting to note that the objects of the various Acts covering the schemes from time to time will always be in some way in conflict with certain provisions of those Acts. For example, the limitations under the old Act in respect the amount available for each injury, emphasising or providing provisions which rewarded certain types of assaults over other types of assault (such as whether an assault was deemed to have occurred within a domestic violence circumstance rather than an assault from a stranger, where certain victims received greater benefits irrespective of needs. 56Not only have the schemes provided greater benefits and accessibility to benefits for certain claimants over others, but they have provided limitations on all claims, so that full recovery and rectification (as in the nature of tortious damages) were never available under the State based schemes. Since the 1987 Act, the dozen or so significant changes (other than those of December 2006 in respect of the definition of injury under the old Act), have all reduced accessibility to lump sum compensation, presumably for reasons of financial viability. Coupled with this however has been the increase in the provision and access to services which support and rehabilitate victims of violent crime, such as counselling, victims assistance, interim payments, and now the broad suite available under the VRSA. The High Court has previously commented on the limitations which must apply to any state based scheme predominantly funded from the consolidated fund. 57In VCFC v Brown HCA 54 [2003] at 33 when referring to the old Act, Heydon J said: Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. 58I have carefully considered all of the material before me in this case. I note that on the facts of BFO's matters, she would never have been able to lodge her claims for victims compensation under either the provisions of section 26 of the old Act (two years from the Act of violence), or section 40 of the VRSA (2 years or two years of turning 18). That is because a statutory compensation scheme was not even in existence at the time that BFO would have needed to comply with these provisions. 59The Victims Compensation Act 1987 commenced in February 1988, some nine years after the cessation of the acts of violence and some six years after BFO turned 18 years of age. The Victims Compensation Act 1996 (later the Victims Support and Rehabilitation Act 1996) commenced on 2 April 1997, some 16 years after the cessation of the acts of violence and some 15 years after BFO turned 18 years of age. It is arguable that had the current provision of section 40 (5) of the current VRSA applied at the time of the commencement of the schemes, then BFO may have been eligible. That consideration is however immaterial as (a) the provision did not exist and the clause does not provide for the benefit of section 40 (5) but only the two year or two years from turning 18 years of age limitations. 60The former Criminal Injuries Compensation Act 1967 was in force for the later period of the assaults against BFO, however, that system was not part of the scheme, and was discretionary, upon the perpetrator being charged and proceeding to trial. It is not considered part of a state based victims compensation scheme, and I note that the commencement of the scheme is referred to in the Hansard speeches as coinciding with the 1987 Victims Compensation Act. 61Additionally a relevant issue that arises in BFO's appeal is the issue of statutory interpretation. In note that this was in part raised at the hearing of the matter. 62A general authority for the correct approach to take in such instances, arises in the case of Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355. In that Case Brennan CJ noted the following: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 63Whilst it is fair to observe that there are a small number of conflicts within both the VRSA and the old Act as well as conflicts between those Acts, the predominant observation that I make is that those conflicts seek to limit rather than exclude recovery for victims of violent crime. 64In Statutory Interpretation In Australia (5th Edition Pearce and Geddes) the issue of beneficial legislation is addressed. (pg 15) Remedial or Beneficial Acts The courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. ..... What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under a threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches.' 65In my view it is clear that the VRSA does proscribe certain conduct under a threat of a penalty. That conduct (or action) in this instance relates to the time for lodging of claims. The VRSA takes away any discretion that existed under the former Acts in respect of extending the limitation period for lodging claims. It only provides for an assessment of the nature of the claim in determining whether an extended lodgement period is available, but even that provision is capped. (see section 40 (5) of the VRSA). 66In addition, the provision of the Clause (as it relates to pending applications under the old Act), is proscriptive and in my view unambiguous. Having examined the Legislative Review Committee Report on the Bill that became the VRSA, it is clear that the issue in BFO's case was of some concern to the Committee. Retrospectivity affecting victims 133. Clauses 4 and 5 of Schedule 2 to the Bill require compensation applications that have not been finalised before the Bill was introduced into Parliament to be dealt with under the new support scheme proposed by the Bill rather than the Victims Support and Rehabilitation Act 1996. Given the potential for different compensation outcomes under the provisions of the Bill compared to the Victims Support and Rehabilitation Act 1996, the Committee refers to Parliament whether it is appropriate to require existing applications for victims compensation to be dealt with under the provisions of the Bill rather than the Victims Support and Rehabilitation Act 1996. 67Given the concerns of the Committee, it would appear that these issues were considered and seen of no great concern by not being included in the various amendments that occurred to the VRSA following its introduction, and subsequent passing by the two chambers of the Parliament. In any event, the significant issues in respect of BFO's entitlements under the scheme were affected by the repeal of the old Act. (See paragraph 35 above). 68Having regard to the provisions relating to statutory interpretation, and giving the words their ordinary meaning, the clause in my view specifically places the condition of the 'prescribed period' on the eligibility for and consideration of awarding a 'special grant'. 69Based on the above analysis and consideration, whilst there appear to be somewhat contradictory and in some ways competing provisions impacting on BFO's (and similar) claims, and whilst the specific basis for the reason is neither specified or can be construed, the provision is clearly explicit and deliberate. 70Whilst such a position would appear contrary to the current and former objects of the legislation administering the schemes, such an approach is not inconsistent with the operation of the victims compensation schemes over the last quarter of a century. 71As a result, having considered all of the circumstances of the matter, the legislature has determined that a claim lodged under the old Act cannot receive a special grant under the VRSA, unless it's lodgement was within two years of the act of violence, or where relevant, prior to a claimants twentieth birthday. 72As a result the applications for review must be dismissed.

Conclusion 73I make the following orders: In claim 1410104 (1)The decision made by the Senior Assessor upon Internal Review on 2 January 2014 is affirmed; (2)The Application is dismissed; (3)No order as to costs. In claim 141015 (1)The decision made by the Senior Assessor upon Internal Review on 2 January 2014 is affirmed; (2)The Application is dismissed; (3)No order as to costs. In claim 1410106 (1)The decision made by the Senior Assessor upon Internal Review on 2 January 2014 is affirmed; (2)The Application is dismissed; (3)No order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2014