Victims Rights and Support Act 2013

Primary, secondary and family victims are the central beneficiaries. A primary victim (s 20) is anyone injured or killed as a direct result of an act of violence, modern slavery or (in limited cases) while preventing or assisting after such an act. A secondary victim (s 21) is a person who suffers psychological harm from witnessing the act or, in the case of a parent or guardian of a child under 18, from subsequently learning of it. A family victim (s 22) is a member of the immediate family (spouse, de facto partner of two years, parent, child, sibling) of a deceased primary victim; the 2024 amendments extended this to family of persons killed in road crimes.

Offenders are directly affected by restitution orders (Part 5) and the victims support levy (Part 7). The definition of “relevant offence” (s 58) is broad: it includes the offence giving rise to the act of violence, any offence for which support is given, and offences taken into account on sentence. Convicted inmates are generally ineligible for support (s 25(4)) unless “special circumstances” exist (s 25(5)–(6)), a test the Commissioner may satisfy where the inmate is seriously and permanently injured.

Government agencies bear positive duties. “Victims rights agencies” listed in s 3 (DCJ, Cabinet Office, local health districts, Mental Health Review Tribunal, NSW Police Force, ODPP and victims-register custodians) must have regard to the Charter (s 7(2)). The Commissioner may compel information from any Government agency (s 12) and publish guidelines (s 10(1)(c)). Responsible agencies for the three statutory victims registers (Children (Detention Centres) Act 1987, Crimes (Administration of Sentences) Act 1999 and Mental Health and Cognitive Impairment Forensic Provisions Act 2020) must facilitate notification to registered victims.

Non-government organisations funded by the State to provide victim support services are “agencies” for Charter purposes (s 3) and may receive funding from the Commissioner (s 10(1)(b1)). Legal practitioners, counsellors and medical reporters are indirectly affected through evidentiary requirements (s 39) and the inadmissibility rule in s 113.

Finally, the Act affects the broader community through the Victims Advisory Board (Part 8), which must consult victims, community groups and agencies, and advise the Minister on policy and reform (s 111).

The Charter (s 6) is not merely aspirational. Section 7(1) requires it to “as far as practicable and appropriate” govern the treatment of victims in the administration of the affairs of the State. Subsection (2) imposes a mandatory relevant consideration on any agency or official exercising non-judicial functions. Specific rights include:

• Information at the earliest practical opportunity of services and remedies (s 6.2) and progress of investigation (s 6.4).
• Consultation before charge modification or withdrawal in serious sexual or personal violence matters (s 6.5(2)), subject to victim opt-out or inability to locate.
• Protection from unnecessary contact with the accused (s 6.7), non-disclosure of residential address or telephone number unless a court directs otherwise (s 6.8), and relief from attendance at committal hearings (s 6.9).
• Prosecutor’s duty to place the victim’s protection needs before any bail authority (s 6.11) and to inform the victim of special bail conditions or outcomes in sexual or serious violence cases (ss 6.12–6.13).
• Access to assistance for victim impact statements (s 6.14) and, on request, information about release, escape or parole (ss 6.15–6.16).

Section 6.17 expressly entitles victims of sexual or serious personal violence to claim under the Scheme. Section 6.18 guarantees the right to complain about breaches and to be told how to do so.

For forensic patients, s 6A.3 requires timely information about Mental Health Review Tribunal matters and leave or release decisions as required by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Section 7(2A) (inserted 2025) carves out an exception to the non-disclosure rule in s 6.8 to permit sharing of contact details between victims rights agencies for notification and register purposes.

On the duty side, the Commissioner must consider every duly made application (s 42), determine it by approval or dismissal (s 43), and give detailed reasons (s 43(5)–(6)). When deciding quantum or refusal, the Commissioner must have regard to victim contributory behaviour, failure to assist authorities, failure to mitigate loss, collateral benefits (insurance, workers compensation, civil damages) and, in modern slavery cases, the nature of the relationship between victim and perpetrator (s 44(1)–(3A)). Post-approval conditions include repayment if further collateral benefits are received (s 48(2)).

The Act creates few direct criminal offences. Section 12(3) makes it an offence (maximum 100 penalty units for a corporation, 50 for a natural person) to give the Commissioner information known to be false or misleading in a material particular. Section 89 creates two offences punishable by a fine equivalent to the value of the property or two years’ imprisonment, or both: (a) knowingly contravening a restraining order, and (b) knowingly disposing of property as part of a scheme to avoid restitution liability. Proceedings for s 89 may be dealt with on indictment or summarily (s 115(2)–(3)).

Enforcement of victims support decisions occurs primarily through administrative and civil mechanisms. Unpaid restitution becomes a debt to the Commissioner (s 70A) and is referred to the Commissioner of Fines Administration for court fine enforcement under Part 7A of the Fines Act 1996 (s 72). Set-off of support payments against restitution liabilities is expressly authorised (s 45). Fraudulent claims may result in a Tribunal restitution order (s 56) recoverable as a fine.

Compensation directions made by criminal courts under Part 6 are enforced by filing a certificate in a civil court registry; the resulting judgment is enforceable as an ordinary debt (s 101). The State is subrogated to the victim’s civil rights to the extent of support paid (s 55), but a confirmed restitution order extinguishes the State’s right to pursue the offender in civil proceedings (s 74(3)).

The Commissioner may register restraining orders over real and personal property (s 86) and seek Supreme Court orders setting aside dispositions made in breach of a restraining order or as part of an avoidance scheme (s 90). Ancillary examination orders are available (s 85).

The Act is deliberately integrated with a web of criminal, civil and administrative statutes. Definitions of “act of violence” (s 19) and “sexual assault and domestic violence” (s 19(8)) incorporate offences from the Crimes Act 1900 (ss 80A, 91C, 91FB, Division 10 of Part 3) and the Crimes (Domestic and Personal Violence) Act 2007. Modern slavery references the Modern Slavery Act 2018 (s 19A). Forensic patient provisions cross-link to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for both the Charter (s 6A) and the Victims Register (s 10(1)(h1)).

Procedural fairness and review rights engage the Administrative Decisions Review Act 1997. Internal review under s 49 excludes the statutory internal review provisions of that Act (s 50) but supplies an equivalent process; subsequent Tribunal review of recognition payments is available (s 51). The Act modifies the operation of the Fines Act 1996 for restitution enforcement (ss 70B, 72) and expressly authorises set-off (s 45).

Privacy and health records legislation is overridden in defined circumstances. Sections 112A and 112B permit victims rights agencies to disclose personal and health information to victims or to register custodians despite the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002. Section 113 renders applications, supporting documents and certain medical reports inadmissible in subsequent civil or criminal proceedings (subject to limited exceptions), replicating and expanding the former s 35 of the 1996 Act.

Interaction with civil damages is governed by subrogation (s 55) and collateral-benefit reduction rules (s 44(4)). Workers compensation, motor accident schemes and the Compensation to Relatives Act 1897 trigger postponement of determination until entitlements are quantified (s 44(5)–(6A)). Court-ordered compensation under Part 6 is capped at $50,000 for injury (s 94) and cannot duplicate Scheme payments (s 95(2)).

The Confiscation of Proceeds of Crime Act 1989 and Criminal Assets Recovery Act 1990 supply the bulk of the Victims Support Fund (s 15(a)–(b)). Restraining orders under the Act can coexist with those statutes (s 83(4)–(5)).

The Act has been substantively amended on at least eight occasions since 2013, reflecting statutory review recommendations, changing community expectations and gaps exposed by high-profile cases.

The Victims Rights and Support Amendment (Statutory Review) Act 2018 implemented the 2016 statutory review. Key changes included: extending time limits for child sexual abuse claims (s 40(7)); allowing amendment of determination notices to correct errors (s 43(7)); new repayment obligations for previously undisclosed collateral benefits (s 48(2A)–(2B)); clarification of onus and grounds in Tribunal reviews (s 66); and medical-report non-disclosure to applicants in Tribunal proceedings (s 113(2A)). These addressed administrative inefficiencies and protected sensitive medical evidence.

The Victims Rights and Support Amendment (Motor Vehicles) Act 2018 and the Crimes Legislation Amendment Act 2018 responded to cases where families of homicide victims killed by motor vehicles were excluded from support because the death occurred in a “motor accident”. New s 25(2A) created an exception where the act was intentional killing and murder charges were laid; s 25(2B) extended eligibility for terrorist acts. These changes prevented arbitrary exclusion based on the instrument of death rather than culpability.

The 2018 Modern Slavery amendments (Victims Rights and Support Amendment (Modern Slavery) Act 2018) inserted ss 19A, expanded the definition of victim of crime (s 5(1)(b)), and applied the Scheme to modern slavery victims. This aligned New South Wales with national efforts to treat slavery, servitude and forced labour as violent crimes.

The Victims Rights and Support Amendment (Victims Support Counselling) Act 2024 was the most recent expansion. It inserted “road crime” (s 19AB), amended eligibility (ss 17, 23, 25, 29A) and created a dedicated counselling pathway for families of road-crime fatalities without opening the full financial support scheme. The amendment also adjusted the definition of family victim (s 22(1A)) and added a combination-of-acts rule (s 30A) to prevent double-dipping. The explanatory materials cited community concern after fatal crashes where families received no counselling because the death was classified as a motor accident rather than an act of violence.

These changes demonstrate a legislative trend toward progressive widening of the victim cohort while maintaining fiscal controls through strict eligibility gates and recovery mechanisms.

Because most determinations are made administratively by the Commissioner and internal review is mandatory before Tribunal review of recognition payments (ss 49–51), reported case law is limited but instructive.

The Civil and Administrative Tribunal (NCAT) has repeatedly emphasised that the Scheme is not a common-law damages regime. In a series of unreported decisions, the Tribunal has held that psychological injury must be “direct” and not merely consequential upon property damage (consistent with the exclusion in s 18). Disputes about whether a series of acts constitutes a “single act of violence” under s 19(7) have generated detailed factual analysis, with the Tribunal applying the three-limb test in s 19(4).

Controversy has surrounded the interaction with motor vehicle schemes. Pre-2018 decisions often left families of homicide victims killed by motor vehicles without support, prompting the legislative amendments described above. The 2024 road-crime amendments are likely to generate new litigation about the boundary between “road crime” and ordinary motor accidents, particularly the “balance of probabilities” test in s 19AB(1)(b)(ii) where the offender is unidentified.

Restitution litigation has focused on the “relevant offence” definition. In one Tribunal matter the Commissioner’s attempt to recover from an offender convicted only of a summary offence taken into account on sentence was upheld on the basis of the broad wording of s 58(c). Challenges to the Commissioner’s discretion under s 44 to reduce or refuse support on contributory-behaviour grounds have succeeded only where the Commissioner failed to consider the domestic-violence relationship factor mandated by s 44(3).

Section 113’s inadmissibility rule has been tested in subsequent civil proceedings; courts have applied it strictly to prevent victims’ Scheme applications being tendered as admissions. The privacy overrides in ss 112A–112B have not yet been judicially considered but are likely to be challenged if victims allege improper disclosure.

No constitutional or High Court challenges have arisen, reflecting the Act’s administrative character and the State’s plenary power over criminal justice and victim compensation.

Most practitioners miss three recurring traps. First, the “series of related acts” rule (s 19(4)–(7)) can cap a victim at one recognition payment even though the conduct spans years and multiple charges; the Tribunal or Commissioner has a discretion under s 19(5) to treat acts as unrelated, but this is rarely exercised once support has already been granted for an earlier act (s 19(6)).

Second, collateral-benefit postponement rules in s 44(5)–(6A) are mandatory. If the Commissioner suspects an entitlement to workers compensation, police officer support scheme payments or Motor Accident Injuries Act 2017 damages (in the s 25(2A) intentional-killing exception), determination must be deferred. Failure to advise the Commissioner of parallel claims can trigger repayment conditions under s 48(2).

Third, the s 113(2A) medical-report non-disclosure rule applies once a report is lodged with NCAT or admitted in review proceedings. Applicants and their lawyers often assume they will see the very report that determines their recognition payment category; the Tribunal will withhold it, creating obvious natural-justice concerns that have survived statutory challenge.

Another subtle trap is the interaction between s 25(3A) and road-crime family victims. A family member who is also a family member of the alleged offender remains eligible for support in relation to the deceased victim, but only if they are not the offender’s immediate family in their own right—an easy factual misstep.

Finally, many lawyers overlook that recognition payments are not “compensation” for the purposes of the Civil Liability Act 2002 or insurance subrogation; they are statutory ex gratia payments. This can produce unexpected double-recovery arguments in subsequent common-law proceedings.

For government agencies and victims rights agencies, compliance begins with embedding the Charter in policies, training and information systems. Section 10(1)(c)–(d) empowers the Commissioner to issue guidelines and recommend training; agencies should maintain auditable records of Charter consideration, particularly in bail applications (s 6.11), charge negotiations (s 6.5) and release notifications (s 6.15). Information-sharing protocols under ss 112A–112B should be documented to rely on the statutory override.

Victims’ legal representatives should lodge applications on the approved form with all mandatory documentary evidence (s 39). For recognition payments, a police or agency report plus a medical or counselling report verifying injury is required. Economic-loss claims must particularise every head of loss with receipts or employer statements. Time limits are strict but subject to the child-sexual-offence exemption in s 40(7); practitioners should diarise the ten-year limit for domestic violence and sexual assault.

When acting for offenders or insurers, advise clients that restitution liability survives bankruptcy and can be enforced via attachment of earnings or land charges under the Fines Act 1996. Early negotiation with the Commissioner under s 68 for a reduced-payment arrangement can avoid full enforcement but must occur before referral to the Fines Commissioner.

Organisations holding victims-register data must have systems to identify registered victims and provide timely notification of parole, leave or release decisions. Breach of Charter obligations can result in a formal complaint to the Commissioner, a recommendation for apology (s 10(1)(f)), or a special report to Parliament (s 13(2)).

All parties should monitor the Victims Support Fund balance and the annual levy adjustment notice published under s 107(3), as CPI increases flow through to maximum grant amounts prescribed by regulation. Regular liaison with the Commissioner’s office on guideline updates remains the most practical compliance tool.