The applicant is referred to as FLI pursuant to a confidentiality order made in the proceedings on 26 August 2022. FLI seeks review of a decision of the respondent, the Commissioner of Victims Rights (the Commissioner) dated 18 May 2022.
[2]
Background to the application
The decision relates to an application for victims recognition under the Victims Rights and Support Act 2013 (the Victims Act). The application seeks that the Commissioner provide a statement of reasons in accordance with Chapter 3 Part 2 Division 2 of the Administrative Decisions Review Act 1997 (the ADR Act).
In that application to the Commissioner, FLI made an application based on being the victim of an act of violence, which occurred in the context of domestic violence. The exact specifics of the claim are not clear to the Tribunal as no documents under s 58 of the ADR Act have yet been filed by the Commissioner. However it is clear that FLI was considered by the Commissioner's delegate to be the victim of an act of violence and was assessed by the delegate as eligible for a Category D recognition payment.
A Category D recognition payment is payable in the sum of $1,500.00 to a victim of violence crime. It is clear from submissions filed by FLI in the Tribunal that they were seeking a Category C recognition payment, being a payment in the amount of $5,000.00 to recognise an act of violence in more serious circumstances or with a more significant impact. It is arguable that the disparity between the requested Category and awarded Category is the basis for FLI pursuing the matter further.
The statutory scheme provides that applicants for recognition payments under the Victims Act may apply for an Internal Review of the first instance decision. In my view the current application to the Tribunal concerns three issues:
1. Whether the Commissioner has provided reasons for the decision,
2. Whether the Commissioner is subject to the provisions of s 51 and 52 of the ADR Act and can be required by the Tribunal (on application) to provide reasons,
3. Whether an application to the Tribunal can be made in the absence of an Internal Review.
FLI applied to the Tribunal on 26 July 2022 for administrative review. In that application FLI stated that they were notified of the decision under review on 6 July 2022 and attached a copy of that decision. The decision (as attached) was the decision of the Commissioner's delegate dated 18 May 2022 determining that a Category D recognition payment was payable. However in the Administrative Review application (the process lodged with the Tribunal to commence proceedings), the following is stated under the provisions: Grounds for Application:
The Applicant complains of the following errors:
1. The decision maker erred in not providing an adequate statement of reasons in the Notice of Decision dated 18 May 2022.
2. The decision maker erred in failing to provide an adequate statement of reasons on request.
From that application it is clear that FLI is seeking an order that reasons be provided under the ADR Act. The Commissioner however submits that in the absence of an Internal Review, there is no administratively reviewable decision. As such the Commissioner's case is solely concerned with the question of jurisdiction of the Tribunal in the absence of an Internal Review.
FLI seeks that an order for reasons issue from the Tribunal on the following basis:
1. On 4 July an email from FLI's legal representatives was received by the Commissioner requesting a statement of reasons under s 49 of the ADR Act. The email stated that the decision of 18 May 2022 was an administratively reviewable decision.
2. On 6 July 2022 the Commissioner's delegate sent an email reply to FLI stating that the reasons for the decision were set out in the notice of decision.
By way of written submissions dated 9 September 2022 FLI amended their request slightly and presented it in the following terms:
1. Pursuant to s 52 (2) of the Administrative Decisions Review Act 1997, within 28 days the respondent is to provide an adequate statement of reasons for the decision made on 18 May 2022.
2. In the alternative, pursuant to s 51 (1) of the Administrative Decisions Review Act 1997, the Tribunal declares that the applicant was entitled to make the request for reasons dated 4 July 2022.
[3]
Summary of the respective positions in first instance
FLI has received a lesser recognition payment (Cat D) than the one they applied for (Cat C) as noted at [4] above. In seeking to understand or better understand the basis for this aspect of the decision dated 18 May 2022, FLI applied for a statement of reasons on 4 July 2022.
In making that request FLI noted that the Decision was an administratively reviewable decision. Section 49 of the ADR Act was referred to in the written request.
FLI submitted that the delegate did not explain in their reasons why they concluded that FLI was not entitled to a Category C payment. It appears from that submission that this is the basis for the request for 'adequate reasons'.
The Commissioner opposes any application to the Tribunal (by way of administrative review) in the absence of an Internal Review. The Commissioner submits that in the absence of an Internal Review there is no administratively reviewable decision. Because of a lack of an administratively reviewable decision, s 49 of the ADR Act does not apply.
[4]
Background to the hearing
Following the filing of the application with the Tribunal the matter was listed for directions on 26 August 2022. Various orders were made for the parties to file and serve submissions and the matter was given a hearing date on 7 October 2022 for half day.
One of the matters that arose during the direction listing was whether FLI had (in the interim) applied for an Internal Review before the Commissioner so as to preserve their rights under the Victims Act. This issue arose in the context that if the Tribunal accepted a matter in the absence of an Internal Review, and proceeded to finally determine the matter, then an applicant might be deprived of an opportunity or the step of having an Internal Review.
FLI did apply to the Commissioner for an Internal Review on 16 August 2022, within the time prescribed by the Victims Act. This application was made after the application to the Tribunal which maintains the dispute between the parties as to whether any application to the Tribunal (under either the Victims Act or the ADR Act) can be made in the absence of an Internal review.
A further issue arising concerns the pending Internal Review. Section 49 of the Victims Act provides the following:
49 Internal review of victims support decisions
(1) An applicant for victims support may apply to the Commissioner for an internal review of the decision made by a person to whom the Commissioner has delegated the Commissioner's functions with respect to an application for victims support (in this Division called the decision maker).
(2) The application must be made within 90 days after the day on which the applicant is given notice of the decision maker's decision.
(3) An application for an internal review must be in writing and state fully the grounds of the application.
(4) An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the application for support to which the review relates was originally received.
(5) Within 42 days after the application for the internal review is lodged (or such other period as the Commissioner and the applicant agree on), the Commissioner must notify the applicant in writing of -
(a) the outcome of the internal review, and
(b) the reasons for the decision in the internal review, and
(c) the right of the person to have a decision with respect to a recognition payment administratively reviewed by the Tribunal under section 51.
(Emphasis added)
When the matter was first returnable before the Tribunal on 26 August 2022 the Tribunal observed the provisions of s 49 (5) of the Victims Act noting that if the Commissioner determined the Internal Review within 42 days as per the section of their own volition then such action may render these proceedings academic in nature. Whilst not having jurisdiction to make any order in this regard it was suggested that the parties could by agreement give the Commissioner until some time after the conclusion of these proceedings to finalise the review in accordance with the alternate provision in parenthesis s 49 (5).
In this regard the Tribunal indicated to the parties that it could not compel the Commissioner in any manner in respect of s 49 but did observe the existence of the 'consent' provision in 49 (5) of the Victims Act. In the orders / directions issued by the Tribunal a 'note to parties' to that effect was made at the end of the orders issued on 26 August 2022. The Tribunal understands that the Commissioner has come to an agreement with FLI not to determine the Internal Review application until these current issues concerning reasons under the ADR Act are finalised.
[5]
Jurisdiction
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:
(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.
The preliminary issue in these proceedings is whether the Tribunal has jurisdiction to determine FLI's application because it arises in the absence of a completed Internal Review (or was made prior to an application for an Internal Review), and is the decision for which the review is sought under the ADR Act an administratively reviewable decision.
The Tribunal has defined jurisdiction under the Victims Rights and Support Act 2013. The issue in these proceedings being that the Commissioner submits that the jurisdiction is subject to preconditions. Section 51 makes provision for administrative review by the Tribunal of certain applications concerning victims support. The Tribunal also has jurisdiction in respect of restitution by offenders. Those matter under Part 5 Division 2 of the Victims Act do not concern these proceedings.
Under s 51 the jurisdiction is expressed in then following manner:
51 Application to Tribunal for administrative review of decision concerning recognition payment
(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment.
(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
As noted from the section above, if an application under s 51 of the Victims Act was being considered, it is an administrative review. In such a case the Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law.
There is however a preliminary dispute between the parties as to whether the Tribunal has jurisdiction to make orders under Chapter 3, Part 2 Division 2 of the ADR Act. The Commissioner submits that there is no administratively review decision as at the date of the application to the Tribunal and as a result the Tribunal does not therefore have jurisdiction to conduct any review or exercise any power.
[6]
FLI's case
FLI submits that the decision of the Assessor as delegate of the Commissioner is an administratively reviewable decision. FLI submits that the Tribunal as a result has jurisdiction potentially under two provisions: (a) under s 52 (2) of the ADR Act which provides:
52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons
(1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.
(2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.
The other provision grounding jurisdiction being s 51 (1) of the ADR Act and was submitted as an alterative basis for jurisdiction. The section provides:
51 Tribunal may determine whether person entitled to reasons or made request within reasonable time
(1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.
FLI submitted that the Victims Act contains numerous references to the 'Commissioner' which includes references to matters performed by the Commissioner's delegate. The Commissioner considers applications for Victims Recognition under the Victims Act, the Commissioner either approves or dismisses applications under the Victims act, and may delegate these functions under that Act. FLI submitted that whilst an applicant may apply to the Commissioner for an Internal Review, the right to apply for Internal Review under the Victims Act excludes any Internal Review right under the ADR Act. This is because of the operation of s 50 of the Victims Act which precludes an Internal Review of a recognition payment decision from being carried out under s 53 of the ADR Act. That section provides:
53 Internal reviews
(1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section.
Whereas s 50 of the Victims Act provides:
50 No internal review under Administrative Decisions Review Act 1997
(1) The procedure for internal review of a decision provided for by this Part applies to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 in the case of a decision with respect to a recognition payment.
(2) A reference in the Administrative Decisions Review Act 1997 to internal review of an administratively reviewable decision under that Act is, in its application to a decision with respect to a recognition payment under this Part, to be read as a reference to internal review of the decision under this Part.
FLI's application does not concern the Internal Review provisions of the ADR Act, and they conceded that s 50 of the Victims Act precludes such a request. The matter which forms the substance of their grievance is a request for written reasons under the ADR Act. FLI made a request and was provided with an answer that the Notice of Assessor's decision was sufficient for the purposes of the request.
FLI is only concerned with an order for reasons by the Tribunal. They rely only on Chapter 3 Part 2 Division 2 of the ADR Act. Sections 49 and 50 under that Part provide:
Division 2 Duty to give reasons on request
49 Duty of administrator to give reasons on request
(1) If an administrator makes an administratively reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.
(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.
(3) The statement of reasons is to set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the administrator's understanding of the applicable law,
(c) the reasoning processes that led the administrator to the conclusions the administrator made.
(4) The regulations may:
(a) exclude any class of administratively reviewable decisions from the application of this section, or
(b) alter the period within which a statement of reasons under this section must be given.
50 Administrator may refuse reasons in certain cases
(1) An administrator may refuse to prepare and provide a statement of reasons requested by a person under this Division if:
(a) the administrator is of the opinion that the person is not entitled to be given the statement, or
(b) in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person - the request was not made within 28 days after the person was provided with the document, or
(c) in any other case - the request was not made within a reasonable time after the decision was made.
(2) An administrator who refuses under subsection (1) to prepare and provide a statement of reasons must notify the person requesting the statement, in writing, of the administrator's refusal and the reasons for the refusal as soon as practicable (and in any event within 28 days) after the request.
(3) The administrator is not to refuse to prepare and provide a statement of reasons if:
(a) in the case of a refusal based on subsection (1) (a) - the Tribunal declares, on an application made under section 51 (1), that the person who made the request was entitled to make the request, or
(b) in the case of a refusal based on subsection (1) (c) - the Tribunal declares, on an application made under section 51 (2), that the person who made the request did so within a reasonable time.
(4) If an administrator cannot refuse to comply with a request for a statement of reasons because of a decision of the Tribunal referred to in subsection (3), the administrator must prepare the written statement of reasons that was originally requested and provide it to the person who requested it as soon as practicable (and in any event within 28 days) after the Tribunal's decision.
FLI relies upon their written request dated 4 July 2022 as satisfying the provisions of s 49 (1) of the ADR Act. FLI submits that the Commissioner's response by email dated 6 July 2022 stating: The reasons for the decision are listed in the Notice of Decision dated 18 May 2022. .. , constitutes a refusal to provide reasons, requested in accordance with s 49 of the ADR Act. FLI says that the response provided in the Notice of Decision (on the substantive application) does not satisfy s 49 (3) and 52 (3) of the ADR Act. Section 52 provides:
52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons
(1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.
(2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.
(3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3).
FLI submits that to ground their standing under the ADR Act the decision of the assessor must be an administratively reviewable decision as referred to in the ADR Act. Section 7 (1) defines administratively reviewable decision. The section provides:
7 Meaning of "administratively reviewable decision"
(1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Section 9 of the ADR Act expands upon s 7 by setting out the circumstances of administrative review. Section 4 covers the term 'enabling legislation' as it appears in that Act.
9 When administrative review jurisdiction is conferred
(1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the legislation, or
(b) in the exercise of any other functions of the administrator identified by the legislation.
(2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.
(3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:
(a) a decision made by a person to whom the function of making the decision has been delegated,
(b) if the provision specifies the administrator by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c) a decision made by any other person authorised to exercise the function of making the decision.
(4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:
(a) the person for the time being holding or performing the duties of that office or appointment, or
(b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists - such person as the President (or another person authorised by the President) specifies.
(5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
Section 4 provides:
Definitions
(1) In this Act:
…
enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:
(a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or
(b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
FLI submitted that s 51 (2) of the Victims Act is the relevant enabling legislation that engages the definition of 'administrative review jurisdiction' in s 9 (1) of the ADR Act. FLI submitted that was because s 51 of the Victims Act expressly referred to administrative review to the Tribunal for an applicant for a recognition payment who is aggrieved by the decision of a decision maker.
FLI submitted that s 51 (2) of the Victims Act provides for applications to the Tribunal in respect of decisions of assessors (first instance decision makers). This was argued as being because s 9 (3) (a) and (c) of the ADR Act provided that references in s 51 (2) of the Victims Act extend to decisions of the Commissioner and decisions of the Assessors as the Commissioner's delegates.
FLI also submitted that the above construction was consistent with s 49 of the Interpretation Act 1987 which relevantly provides:
49 Delegation of functions
(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.
(2) A delegation -
(a) may be general or limited,
(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and
(c) may be revoked, wholly or partly, by the delegator.
(3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
(4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function.
(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.
(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.
(Emphasis added)
FLI also submitted that an Assessor's decision in this context is an administratively reviewable decision because the Tribunal has conducted administrative reviews previously under the Victims Act in the absence of an Internal Review having occurred.
The following cases were put in support of this proposition: BXB v Commissioner for Victims Rights [2015] NSWCATAD 173 at [14] - [19], CQP v Commissioner of Victims Rights [2016] NSWCATAD 202 at [33]-[37], BWL v Commissioner of Victims Rights [2016] NSWCATAD 242 at [17]-[21] and FCB c Commissioner of Victims Rights [2021] NSWCATAD 365 at [25] - [26].
In BXB the Tribunal observed the following in the absence of an Internal Review, that:
14. In a case BGD v Commissioner of Victims Rights [2014] NSWCATAD 181 published on 27 October 2014 I made a decision which in part addressed the problem facing the applicant in these proceedings. I worked through the apparent conflict between parts of Division 7 of the Victims Rights and Support Act 2013 and also tried to examine and apply the relationship between that Act and the Administrative Decisions Review Act 1997 which I refer to as the "ADR Act".
15. In that decision I focused on section 55 of the ADR Act where I looked at the provisions. Quoting my decision from 'BGD' at paragraph 34, I said the following:
Section 55 (3) of the ADR Act provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However section 55 (4) provides discretionary exceptions to that requirement.
At paragraph 35 of 'BGD' I stated:
Section 55 (4) (a) provides that I can review the matter (in the absence of an internal review) if I am satisfied that the Commissioner 'unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision'.. . (emphasis added)
16. At paragraph 36, I went on to consider that in the facts before me in that matter the provision did not apply. However I moved on to s 55(4) (b) at paragraph 38 of 'BGD' where I decided that there is a discretion to consider a matter where there has been no internal review. Quoting from paragraph 38,
Alternatively, the provisions of section 55 (4) (b) provides a discretion to consider a matter where there has been no internal review. That provision provides that I can deal with the matter if: it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
The issue relating to the 'applicant's interests' goes to the substance of BGD's claim and is bound up in the substantive issue. As the substantive issue before the Tribunal will fail, for reasons that I will set out later, unfortunately I am unable to make a finding in accordance with section 55 (4) of the ADR Act and accept the application for review.
17. These proceedings differ from 'BGD' in that the current proceedings, I am of the view that the substantive claim will succeed. On that basis under section 55(4)(b) of the ADR Act I propose to determine the matter as
"It is necessary for the Tribunal to deal with the application in order to protect the applicant's interest and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned."
18. In that regard the application to this Tribunal was lodged on 11 June and bearing in mind the applicant's return from overseas and the discussion between her and the Commissioner's delegates in February and March as to how the matter cannot be dealt with by the Commissioner, I give leave for the application to proceed in the absence of a review.
Like BXB the issue of whether the substantive claim of FLI will succeed is relevant. The substantive claim concerns whether FLI can establish that as a direct result of the act of violence they sustained an injury which could be characterised as causing grievous bodily harm. Because under the Victims Act a claimant can introduce fresh evidence at administrative review stage, and the substantive case turns on medical issues, there is some likelihood that either on current or with further evidence that the Tribunal may as the finder of fact reach a different conclusion.
In CQP the Tribunal observed:
33. S 55 (3) of the ADR Act provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However s 55 (4) provides discretionary exceptions to that requirement and empowers this Tribunal to hear an application for administrative review (in the absence of internal review) if it is satisfied that it is necessary to deal with that application in order to protect the applicant's interests and the application was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
34. In the current matter, the evidence indicates that the respondent posted copies of the Assessor's decisions to CQP at an address in Dubbo, NSW, on 21 August 2014. CQP then had 28 days in which to apply to the respondent for an internal review of the decisions, but she did not do so until 2 December 2015.
35. However, CQP's evidence in relation to this issue is that she did not receive the respondent's letters dated 14 August 2014, and that she first became aware of the decisions when she received copies of them by post on 24 November 2015. Therefore, her application for internal review was made 8 days after she received copies of the decisions from the respondent.
36. The issue relating to the 'applicant's interests' goes to the substance of CQP's claims and is bound up in the substantive issue of whether or not she was the primary victim of the alleged acts of violence. For the reasons set out below, I am persuaded on the evidence that is before me that CQP was the victim of acts of violence, as alleged in each of the applications for compensation, and that she suffered injury as a direct result of those acts.
37. I therefore grant leave for the Application for Administrative Review to proceed pursuant to s 55 (4) of the ADR Act and I accept it.
BWL focused on the applicant's interests in considering the objects of the Victims Act and the scheme. Implicitly the Tribunal found that BWL's victimology was part of the reason for the Tribunal to exercise the discretion under s 55 (4) (b) of the ADR Act.
17. I am satisfied that s 51 of the Act confers jurisdiction upon the Tribunal to administratively review a decision made in matter number 233065 regarding an application for a recognition payment.
18. However, s 55 (3) of the ADR Act provides:
If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
19. In the current matter, there is no evidence that BWL requested an internal review of the Commissioner's decision regarding dated 5 August 2016 before lodging the current application for administrative review. However, this Tribunal has a discretion to deal with the current application, in the absence of a request for internal review.
19. In relation to this issue I note that s 55 (4) of the ADR Act provides, relevantly:
(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
...
(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
20. In view of the signs of extreme emotional distress displayed by BWL during the hearing on 7 October 2016, I am satisfied that it is necessary for the Tribunal to deal with the current application for administrative review, in the absence of a request for internal review, in order to protect the applicant's interests and that the application was lodged within a reasonable time following the decision dated 5 August 2016.
In FCB the Tribunal rejected the Commissioner's submission that the decision of an Assessor was not an administratively reviewable decision. The Tribunal observed:
24 However, the Act does not exclude the operation of s 55(4) of the ADR Act in relation to an application for administrative review of a decision made under the terms of the Act. In my view, the decision in CWS is not authority for the proposition that a decision of an Assessor, which is an administratively reviewable decision for the purposes of an application for internal review to the Respondent, is not an administratively reviewable decision for the purposes of an external review by this Tribunal.
25 Section 55(5)(c) of the ADR Act confers a wide discretion on this Tribunal in determining whether the application was made within a reasonable time following the Assessor's decision and it allows the consideration of evidence that the Tribunal considers relevant. In my view, FCB's oral evidence, her submissions to Victims Services and to this Tribunal and the medical evidence from Dr Ghodusi are relevant to the determination of this issue and based on that evidence, I am satisfied that FCB filed her application for administrative review within a reasonable time.
26 Accordingly, I am satisfied that the requirements of s 55 of the ADR Act have been satisfied, as it is necessary for the Tribunal to deal with the application in order to protect FCB's interests, and that the Tribunal has jurisdiction to determine the matter.
FLI referred to other cases and the Tribunal has also in a number of instances (unreported) applied the same approach (when the evidence and facts support such a finding) to proceed in the absence of an internal review.
FLI submitted that the above line of authority as well as the construction for s 55 (4) and (6) of the ADR Act establish review jurisdiction.
[7]
Commissioner's case
The Commissioner's position is that only decisions of the Commissioner (or their delegate) on Internal Review, were administratively reviewable. They submitted that in the absence of an internal review decision, the Respondent submits that there is no 'administratively reviewable decision'.
The Commissioner submitted that s 51 (2) of the Victims Act only conferred administrative review jurisdiction on the Tribunal in the absence of an Internal Review, in circumstances whereby the Commissioner had made the first decision or determination in respect of a recognition payment, personally.
The Commissioner submitted that s 49 of the Victims Act, provided for Internal Review of decisions made only by a delegate of the Commissioner. This provision ensures that an applicant is not precluded from applying for an administrative review of a decision made personally by the Commissioner.
The Commissioner submitted that in the current matter, as the precondition being that there be a decision made personally by the Commissioner had not been satisfied, then there is no 'administratively reviewable decision' and the Tribunal does not have jurisdiction to make an order under s 51 or 52 of the ADR Act.
The Commissioner also relied on submissions that the statutory text of the Victims Act differentiated the terms 'Commissioner' and 'decision maker' in s 51 (1) and 51 (2), with decision maker drafted in s 51 (1) and 'Commissioner in s 51 (2).
The Commissioner submitted quoting Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [71] that .. in construing a statutory provision a court must strive to give meaning to every word so that no clause, sentence or word shall prove to be superfluous, void or insignificant, if by any other construction they may all be made to be useful and pertinent. In this context the Commissioner submitted that the reference to the decision of the Commissioner in s 51 (2) of the Victims Act cannot be read to include a decision of a delegate of the Commissioner as this would render the inclusion of the term 'decision maker' and the preconditions set out n s 51 (1) otiose, superfluous and insignificant.
The Commissioner submitted that the absence of any provision to accommodate the making of a request for reasons pursuant to s 49 of the ADR Act, or otherwise extend time, is consistent with the intention that s 49 of the ADR Act will not apply to the first instance decision made by a delegate.
They submitted that in the alternative, s 49 of the Victims Act provided a mechanism for a new decision to be made, that can be subject to external merits review to NCAT should the applicant be aggrieved by that decision.
The Commissioner also submitted that the provisions of s 9 (3) of the ADR Act cannot be extended to decisions of the Commissioner's delegate in order to ground administrative review jurisdiction. This is because the (as submitted by the Commissioner):
The juxtaposition of section 51 (1) and (2) of the VRS Act and the introduction of the term "decision maker" for the sole purpose of Division 7 make clear that the legislature intended to draw a distinction between sections 9 (1) and (2) of the ADR Act which limits administrative review jurisdiction to decisions provided for by enabling legislation and subject to any conditions set out therein.
The Commissioner referred to the cases of: White v Sutherland Shire Council [2019] NSWCATAD 100 and Anthony Horden and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 in support of this position.
The Commissioner made submissions about the previous cases decided by the Tribunal on this issue, BXB, CQP, BWL and FCB as set out above. Broadly the Commissioner submitted that the Tribunal in those cases exercised its discretion as identified in s 55 (4) of the ADR Act. The Commissioner submitted that the current applications could be opposed essentially because in the earlier decisions the Tribunal had not made an express finding that the decision being reviewed was an administratively reviewable decision.
The Commissioner also submitted that s 43 (4) and (5) of the Victims Act provides adequately for the giving of reasons.
Further submissions made by FLI at hearing concerned s 51 and 52 of the ADR Act being central to administrative review. Section 49 of the ADR Act is about seeking reasons, which is the basis of this application to the Tribunal. In FLI's submission the whole matter turns on whether the first instance decision of the Assessor can constitute an administratively reviewable decision for the purpose of the ADR Act.
Potentially sections 7, 8 and 9 of the ADR Act provide the answer. Sections 7 and 9 of the ADR Act are set out at [23] and [33] above. Section 8 provides:
Chapter 2 Administrative review jurisdiction of Tribunal
8 Meaning of "administrator"
(1) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note -
There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, subsection (2) and sections 6 (2)-(5) and 9 (3) and (4).
(2) The person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision.
Thus in s 8 the term 'administrator' is defined. Under s 43 of the Victims Act the Commissioner determines applications. Under s 9 of the Victims Act the Commissioner may delegate a function:
9 Functions generally of Commissioner
(1) The Commissioner has and may exercise such functions as are conferred or imposed on the Commissioner by or under this or any other Act.
(2) The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to the following -
(a) any member of staff referred to in section 8,
(b) any person of a class prescribed by the regulations.
FLI submitted that under s 51 (2) there is a right to apply for Internal Review of the decision of the Commissioner or their delegate.
FLI also submitted that the Tribunal had jurisdiction to grant the relief sought under the ancillary jurisdiction as set out in s 30 (2) (b) of the NCAT Act.
30 Administrative review jurisdiction
(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Note -
See section 9 of the Administrative Decisions Review Act 1997.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction -
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
FLI submitted that s 51 (1) of the Victims Act occurs in the context of a decision already having been made. They agreed that s 55 of the ADR Act cannot be applied directly to the current case because an administrative review under Chapter 3, Part 3 Division 1 of the ADR Act is only available following an Internal Review.
[8]
Consideration
I note that the Interpretation Act 1987 provides that when considering the meaning and purpose of a function under an Act, (by way of interpretation) regard should be had to the objects and purpose of that Act. Section 33 provides:
Interpretation Act 1987 No 15
33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
I also note that in this application FLI is seeking that the Tribunal conduct an administrative review of the decision of the Commissioner (via their delegate) to not provide reasons for decision, or to not provide reasons for decision in a sufficient form.
From the preliminary listings of this matter and matters said on record by FLI's legal representatives the purpose of the proceedings is to require the Commissioner to explain or expose their delegate's reasoning as to why the principal point of FLI's application for a recognition payment (Category C payment) was not accepted. Having failed to receive the Category C payment or award as a recognition for the harm suffered by FLI s a result of a serious assault, a request was made for a statement of reasons. Whilst this ensured the preconditions of s 49 (1) of the ADR Act were met, it was more clearly directed at resolving FLI's query. There is no evidence that had the Commissioner responded to the s 49 (1) request in the manner sought, any proceedings before the Tribunal would have been lodged by FLI at this time. It appears that the apparent refusal to engage on the request has caused these proceedings.
When looking at the overall purpose and objects of the Victims Act (and as enabling legislation), it is beneficial legislation to support and recognise victims of violent crime. The scheme that underpins the current legalisation and its predecessors has been considered by the High Court as beneficial legislation. (Victims Compensation Fund Corporation v Brown [2003] HCA 54).
In this regard, when considering the application the Tribunal must have regard to that beneficial aspect (within limits) when applying the provisions of the enabling legislation. The objects of Part 4 of the Victims Act which deals with the Victims Support Scheme are as follows:
17 Object of Part
The object of this Part is to establish a scheme for the provision of support for victims of acts of violence and acts of modern slavery.
Turing to the substantive question as to whether the Tribunal has administrative review jurisdiction I note from the Victims Act that:
42 Consideration of applications
(1) Each duly made application for victims support is to be considered by the Commissioner.
(2) The Secretary or any other Public Service employee may not direct, overrule or interfere with a determination of the Commissioner with respect to an application for victims support.
Section 43 of the Victims Act sets out that the Commissioner must determine the applications and arrive at one of two possible conclusions:
43 Determination of applications
(1) After considering an application for victims support, the Commissioner must determine the application -
(a) by approving the giving of the victims support, or
(b) by dismissing the application.
If the Commissioner approves the giving of support or dismisses the application they must provide a statement of reasons.
(5) If approval is given, the notice must include a statement of the amount (if any) payable by way of financial support (including whether for immediate needs or economic loss, or both) or by way of recognition payment, together with a statement of the reasons for approving the giving of those amounts.
(6) If the application is dismissed, the notice must include a statement of the reasons for the dismissal.
It is clear and uncontroversial that the Victims Act is enabling legislation for these current purpose. Section 51 (2) of the Victims Act engages the Tribunal via the definition of administrative review jurisdiction in s 9 (1) of the ADR Act. Applications for victims support are to be considered by the Commissioner. These applications are determined by the Commissioner.
Having considered the submissions of the parties and the legislation and principles of statutory interpretation (and having regard to the beneficial nature of the legislation), I find that there is administrative review jurisdiction because there is an administratively reviewable decision.
This is because I find that the references s 51 (2) of the Victims Act to decisions of the Commissioner, extend under s 9 of the ADR Act to decisions of the Commissioner's delegates such as Assessors. As noted in more detail above s 9 relevantly states:
(3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:
(a) a decision made by a person to whom the function of making the decision has been delegated,
b) if the provision specifies the administrator by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c) a decision made by any other person authorised to exercise the function of making the decision.
If in victims recognition applications the legislature sought to exclude external reviews (by way of administrative review) to matters only where an Internal Review had occurred, then both the ADR Act and the Victims Act would have been drafted differently and clear provisions would have ensued.
I agree with FLI's submission that the extrinsic material provides only limited assistance in the interpretation of s 51 of the Victims Act. I also agree that the Tribunal has jurisdiction (on a discretionary basis under s 55 (4) and (6) of the ADR Act) to deal with an Assessor's decision (being a decision in the absence of an Internal Review). The application of that discretion has been examined in detail by the Tribunal in the line of cases extracted above being: BXB, CQP, BWL and FCB.
In addition on the principle of comity as the above decisions do stand for the proposition that an Assessor's decision is an administratively reviewable decision (in certain specific circumstances), that is a further reason not to depart from the earlier findings of the Tribunal. Because of the finding that I have made at [75] that the reference to Commissioner in s 51 (2) extends to delegates (including Assessors) comity becomes a matter which supports the substantive conclusion that I have already made.
In my view the discrepancies in the language of Commissioner and Decision Maker in this Part of the Victims Act cannot with any certainty be considered in the manner put forward by the Commissioner when one has regard to the overall purpose of the Victims Act. I observe that the actual meaning and basis of s 51 (2) of the Victims Act as currently drafted has not been settled by any adjudication of this Tribunal or a Court of record.
As has been explored since the commencement of the current Victims Act, it is difficult to conceive when a decision personally made by the Commissioner concerning a recognition payment would arise. It is clear that if the Commissioner did exercise their power to determine a recognition application in the first instance then they would be removing a right of an applicant to review. The unfairness of such a circumstance appears obvious and my well explain why in practice the provision has only been agitated before the Tribunal concerning limitation issues and rejections of the receipt of applications for recognition payments. As noted above the extrinsic material does not expand on these issues.
I now turn to the specific application before the Tribunal having found jurisdiction. FLI submitted that having the Tribunal order that the administrator provide an adequate statement of reasons is the primary power invoked before the Tribunal.
Without engaging in conjecture, the basis for reasons for decision or a requirement for a sufficiency of reasons is well know in respect of legal decisions not just administrative review matters. A failure to give reasons / sufficient reasons can amount to an error of law whereby the decision maker below (Court or Tribunal) is required to provide reasons in accordance with law (as stated by the body above hearing the appeal).
The clear purpose of this requirement is to enable a party to understand the basis for the decision. This provides an understanding to a party and enables them to consider where their case had strengths or weaknesses and if applied to a losing party, how they might run a case differently in future, or in some instances whether there is any basis for an appeal. In my view it is clear from oral submissions made by FLI's legal representatives in the prehearing stage that they required the reasons in order to determine how they might approach the Internal Review or other applications arising out of FLI's claim.
The Commissioner relied on s 43 (4) and (5) of the Victims Act when responding to FLI's request for reasons. Those sections provide:
43 Determination of applications
(1) After considering an application for victims support, the Commissioner must determine the application -
(a) by approving the giving of the victims support, or
(b) by dismissing the application.
(2) The Commissioner may defer the determination of the application if the Commissioner is of the opinion that there are relevant matters requiring further consideration or clarification.
Note -
Section 11 enables the Commissioner to carry out inquiries and investigations with respect to applications.
(3) The Commissioner must not approve the giving of victims support unless satisfied that the person to whom the application relates -
(a) is a primary victim, secondary victim or family victim of an act of violence or act of modern slavery or is a parent, step-parent or guardian who is caring for a child who is a primary victim of an act of violence or act of modern slavery, and
(b) is eligible to receive the victims support concerned.
(4) Written notice is to be given to the applicant of the determination of the application.
(5) If approval is given, the notice must include a statement of the amount (if any) payable by way of financial support (including whether for immediate needs or economic loss, or both) or by way of recognition payment, together with a statement of the reasons for approving the giving of those amounts.
(6) If the application is dismissed, the notice must include a statement of the reasons for the dismissal.
(emphasis added)
The Commissioner in their written response to FLI's request clearly relies on the reference in s 53 (5) to the: 'statement of reasons for approving the giving of those amounts'. However when the statement of reasons is examined, there is in my view no reason given as to (a) why a Category D payment is approved (other than the Assessor stating that it is appropriate), and there is also no reason given as to why the nominated Category C payment (which was the basis of the claim) was not approved. In my view the Assessor simply does not engage on this issue in any manner. Whilst overall the reasons contain some detail, those matters are quarantined to the preliminary and threshold issues concerning making a finding that FLI is a victim of an 'act of violence' as set out at s 19 of the Victims Act . Whilst that finding is important, once that matter is successfully passed the merit of the claim concerns the consideration of the appropriate recognition payment category, which goes to both the circumstances of the assault and the overall impact on the victim (FLI) of the assault.
As noted above s 51 of the ADR Act (having found jurisdiction) provides for the Tribunal's powers and functions on the administratively reviewable decision.
51 Tribunal may determine whether person entitled to reasons or made request within reasonable time
(1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.
(2) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.
It is clear that the request for reasons was made within a reasonable time. No argument to the contrary had been run by the Commissioner. The Assessor made their substantive decision on the application on 18 May 2022. On 4 July 2022 FLI sought reasons from the Commissioner. Whilst this is a period of some six weeks it is well within the time provided for Internal Review applications under s 49 (2) of the Victims Act (90 days).
If FLI was wishing to understand the basis as to why their substantive claim was not awarded (Category C payment) so that they might consider their options to either accept the award or seek an Internal Review, then it seems appropriate that having regard to the 28 day requirement under s 49 (2) of the ADR Act, that any period up to 62 days after the decision would constitute a reasonable time. This is because an applicant having 90 days to seek Internal Review and the Commissioner only having 28 days maximum to provide reasons in response to a request for reasons, would, allow up to 62 days to make the request having regard to the constrains imposed by s 49 (2) of the Victims Act.
Again I note that no submissions were made to the contrary, merely that the reasons provided in the Notice of Decision were deemed sufficient by the Commissioner to address any request.
I therefore find that by applying 43 days after the decision FLI has made a request for reasons within reasonable time. In addition I note that the request was considered by the Commissioner (albeit referring to the reasons for which the request was made).
The actual decision (as noted at [85] above), does not engage the primary matter.
After determining 'act of violence' and that there were no disentitling matters engaging s 44 of the Victims Act and describing categories of recognition payments in generic terms, the Assessor says the following:
To determine the category of recognition payment, I have considered the nature of the violence committed against (FLI) and the medical evidence. Based on supporting evidence, I approve the following:
Category D: an assault (not resulting in grievous bodily harm) s 35(4) (d) $1,500.00
In my view as expressed above there is no engagement in how or why the medical evidence did not equate to grievous bodily harm, which an be the only evidential and the statutory basis for rejecting the Category C application.
In my view it is clear form the above words that the reasoning is not exposed and the reasons do not demonstrate how the decision maker arrived at that conclusion other than that they looked at the evidence and made the finding. When an applicant seeks a discrete remedy from the Scheme in my view at the very least the decision should reflect why that remedy was or was not granted.
The well established legal principle of a sufficiency of reasons has a large body of case law behind it. The often quoted case of Soulemezis v Dudley Holdings (Pty Ltd ) (1987) 10 NSWLR 247 sets out the basis for a requirement to give reasons: McHugh JA in observed in that decision:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment 'is not only to do but to seem to do justice': (The Writing of Judgments (1948) 26 Can Bar Rev at 491). Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
... A requirement that judges give reasons for the decisions - grounds of decision that can be debated, attacked, and defended - serves a vital function in constraining the judiciary's exercise of power.
Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases: (Taggart 'Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases' (1983) 33 University of Toronto Law Journal, 1 at 3-4). Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future. (emphasis added)
McHugh JA as he was, refers specifically to judicial bodies, but Soulemezis has been taken as authority for what is considered as the duty to give adequate reasons for all decision makers whether they be Courts or not and hat the failure to do so amounts to an error of law or otherwise.
Whilst cases such as Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 have since narrowed the breadth of the duty to give reasons, nothing from Beale in my view supports the proposition that the decision of the Assessor provides a sufficiency of reasons in the substantive determination.
[9]
What action to take on review
In granting the application, the ADR Act provides the following powers to the Tribunal under s 63 (3):
63 Determination of administrative review by Tribunal
…
…
(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.
In my view, the substantive decision ultimately is the Assessor's decision. However both parties wish to preserve any right in respect of that matter and as noted above there is an Internal Review pending on that decision.
Having regard to Chapter 3 Part 2 Division 2 of the ADR Act, having found administrative review jurisdiction, the matter before the Tribunal now appears confined to the sufficiency of reasons argument.
The relevant provisions of the ADR Act applicable are:
51 Tribunal may determine whether person entitled to reasons or made request within reasonable time
(1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.
(2) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.
I determine that in effect FLI was reused a request for reasons as their request as not dealt with by the provision of any new reasons, merely that the existing reasons satisfied the request. As I have already found, the request was made within a reasonable time.
The ADR Act further sets out the Tribunal's powers in this Division.
52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons
(1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.
(2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.
(3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3).
Section 49 (3) sets out what constitutes an adequate statement of reasons:
49 Duty of administrator to give reasons on request
(1) If an administrator makes an administratively reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.
(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.
(3) The statement of reasons is to set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the administrator's understanding of the applicable law,
(c) the reasoning processes that led the administrator to the conclusions the administrator made.
I find that in respect of the recognition payment category awarded, the Assessor (and Commissioner) has not met the requirements of s 49 (3) of the ADR Act. .
[10]
Conclusion
In making the following orders, this will finalise this application before the Tribunal. Once the orders as made are complied with, the parties should determine a date to finalise the pending Internal Review application. What action if any arises from that will be a matter for their consideration of Part 4 Division 7 of the Victims Act.
I therefore make the following orders.
[11]
Orders
1. Pursuant to s 52 (2) of the Administrative Decisions Review Act 1997, I order the Commissioner as administrator to provide a statement of an adequate statement of reasons in accordance with the requirements of s 49 (3) of that Act within 28 days of the date of publication of these reasons for decision.
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: 13 December 2022