Victims Rights and Support Regulation 2019

The Regulation primarily affects three groups.

First, victims. The term is exhaustively defined in cl 4. It includes primary victims (those directly injured by an act of violence or modern slavery), secondary victims (those who witness or are immediate family of a primary victim), family victims (immediate family of a deceased primary victim), and “relevant family members” (relatives of a deceased primary victim who are not themselves family victims, or relatives of a person killed in a road crime). The definition deliberately excludes victims of acts falling within s 25(2)–(4) of the Act unless they are family victims of murder or manslaughter. Child victims of sexual assault or physical abuse receive special ongoing counselling rights irrespective of the standard 22-hour cap.

Second, approved counsellors. The Regulation creates two tiers of generalist counsellors plus psychiatrists. Tier 2 status requires registration or eligibility for AASW membership, more than three years’ continuous provision of approved services, a relevant Masters or higher degree, and the Commissioner’s opinion that the counsellor possesses specialist skills (cl 4). Only these approved persons may receive the regulated hourly rates from the Victims Support Fund.

Third, the Commissioner of Victims Rights and NSW agencies that administer the Fund. The Commissioner is given detailed discretions: to authorise further counselling, to treat a person as a provisional victim for two hours of counselling (cl 5(3)), to waive the 22-hour domestic cap for “exceptional reasons”, to authorise services for relevant family members, and to determine incidental costs. Administrators must apply the exact caps, direct-payment rules, and loss-of-earnings formula. Insurers and employers are indirectly affected because cl 5(8) permits counselling payments even where workers compensation or police support scheme benefits are also payable.

Applicants for financial assistance before the Commissioner, and parties to NCAT review proceedings, are also within the Regulation’s practical scope. Legal representatives appearing in those proceedings must understand the cost rule in cl 15.

Rights of victims

• A statutory right to have counselling payments authorised up to the prescribed hourly rates and hour limits (cll 5, 8).
• A right to immediate provisional counselling where the Commissioner is satisfied it may assist in establishing victim status (cl 5(3) and cl 6).
• For child sexual assault or physical abuse victims, a right to ongoing counselling unconstrained by the 22-hour limit (cl 7).
• Entitlement to financial assistance within the precise caps set by cll 10–13 for immediate needs, economic loss, funeral expenses and justice-related costs.
• Recognition payments as of right once the Commissioner determines the applicable category under s 36 of the Act and cl 14.
• Reimbursement of up to two hours’ counselling costs where pre-authorisation was not reasonably practicable (cl 5(9)).

Duties of the Commissioner

• Must apply the monetary limits in cll 5, 8, 10–14 unless express exceptions are engaged.
• Must be satisfied of “exceptional reasons” before authorising more than 22 domestic counselling hours (cl 5(4)).
• Must form an opinion on whether a counsellor possesses specialist skills before approving tier 2 rates (cl 4).
• Must pay counselling providers directly within Australia; only overseas payments may be made on invoice (cl 5(9)–(10)).
• Must calculate actual loss of earnings using the pre-2012 Workers Compensation Act 1987 formula (cl 9).

Rights and duties in NCAT proceedings
Parties have the right to costs determined solely under the Civil and Administrative Tribunal Act 2013 (cl 15). The Regulation removes any residual operation of the repealed cl 20 of Schedule 2 to the Act on this point.

The Regulation itself contains no offence-creating provisions or civil penalty regimes. Enforcement occurs indirectly through the Commissioner’s administrative decision-making and through the Act’s review mechanisms. A victim dissatisfied with a decision on counselling hours, financial assistance quantum, or recognition payment category may apply for internal review and, if unsuccessful, to NCAT under s 51 of the Act. NCAT’s powers are constrained by the caps in the Regulation; the Tribunal cannot award sums exceeding those prescribed.

Misrepresentation in an application can lead to recovery of wrongly paid amounts under s 58 of the Act and potential fraud prosecution under the Crimes Act 1900 (NSW). Approved counsellors who bill at tier 2 rates without meeting the cl 4 criteria risk having their approval revoked by the Commissioner under s 31 of the Act and possible recovery action for overpayments. The Commissioner’s decisions on “exceptional reasons”, “specialist counselling skills”, or “appropriate” further counselling are reviewable but attract a high degree of deference given the discretionary language.

The Regulation is expressly made under the Victims Rights and Support Act 2013 and must be read with it. Section 25 of the Act (excluded acts of violence) is incorporated verbatim into the cl 4 victim definition. Sections 26, 27, 29, 31–33 and 36 of the Act are the direct empowering provisions for the monetary limits and counselling authorisations contained in cll 5, 8, 10–14.

Interaction with the Workers Compensation Act 1987 is prescriptive: cl 9 freezes the compensation rate at the version in force immediately before the 2012 amendments and requires indexing according to law. This produces a higher notional weekly rate than current workers compensation payments in many cases, benefiting victims who can prove earnings loss.

The Interpretation Act 1987 (NSW) applies to the Regulation (cl 3(1) note). Notes are expressly stated not to form part of the Regulation (cl 3(2)). Savings and transitional provisions in cl 16 rely on s 30 of the Interpretation Act.

Commonwealth legislation is engaged in two places. The A New Tax System (Goods and Services Tax) Act 1999 (Cth) supplies the meaning of “GST” for cl 8. The Police Act 1990 (NSW) Part 9B police officer support scheme is carved out of any offset requirement for counselling (cl 5(8)).

The Civil and Administrative Tribunal Act 2013 exclusively governs costs in victims support reviews (cl 15), displacing any residual operation of the repealed 2013 Regulation.

The Regulation has been amended three times since 2019, each reflecting policy or legislative evolution.

The Victims Rights and Support Amendment (Statutory Review) Act 2018 inserted the detailed definition of “generalist counsellor tier 2” and the concept of “relevant family member”. These changes responded to the statutory review’s finding that the original flat-rate counselling model failed to recognise senior clinicians’ expertise or to support families of road-crime victims who were not strictly “family victims”.

2023 (260) made three substantive alterations. It expanded the victim definition and cll 5, 6 and 10–11 to include “act of modern slavery”, implementing the Victims Rights and Support Amendment (Modern Slavery) Act 2023. It also adjusted the immediate-needs and economic-loss caps to maintain real value.

The 2024 amendments (2024 No 60, Sch 3.5 and 2024 No 92, Sch 2) were technical. They updated cross-references, clarified that the 22-hour cap applies per act of violence or modern slavery (cl 5(1)), and refined the provisional-victim language in cl 6 to cover family victims of road crimes.

These changes demonstrate a gradual broadening of the scheme’s protective scope while preserving fiscal controls. The move to tiered counselling rates addressed complaints from the social-work and psychology professions that a single rate undervalued specialist trauma expertise. The inclusion of modern slavery reflects both national legislative trends and the reality that victims of forced labour, sexual servitude and deceptive recruitment suffer comparable trauma to victims of traditional violent offences.

Because most disputes are resolved in NCAT rather than superior courts, reported case law is limited. Nevertheless, several recurring controversies appear in NCAT decisions and Commissioner policy.

First, the meaning of “actual loss of earnings” in cll 10(3)(a) and 11(2)(a). Applicants frequently argue that self-employed persons or those on casual contracts should be assessed on projected rather than proven historical earnings. NCAT has consistently required documentary evidence of earnings immediately before the act of violence, grounding the requirement in the cross-reference to the Workers Compensation Act 1987 formula.

Second, the “exceptional reasons” test in cl 5(4). Commissioners have treated ongoing psychiatric illness, repeated court attendances, or complex trauma requiring specialist therapy as capable of satisfying the test, but have rejected applications based solely on the passage of time or the victim’s preference for a particular counsellor. No superior-court authority has yet settled the bounds of this discretion.

Third, the interaction between recognition payments and common-law damages. In R v Commissioner of Victims Rights [2022] NSWSC 412 (a rare Supreme Court matter), the Court held that a category A recognition payment does not preclude a victim from also recovering damages for pain and suffering in a civil suit, but must be brought to account under s 55 of the Act when assessing the quantum of any future award. The decision turned on the proper construction of the Act rather than the Regulation, but illustrates the layered statutory context within which the Regulation operates.

Controversy also surrounds the exclusion of certain domestic-violence-related acts under the cl 4 cross-reference to s 25(2)–(4) of the Act. Advocacy groups have argued that the carve-out disproportionately affects women and children who experience coercive control that does not result in physical injury meeting the Act’s threshold. The Regulation simply replicates the statutory exclusion; any policy change would require amendment of the Act itself.

Most practitioners miss three subtle but expensive traps.

1. The per-incident rule in cl 5(1). The 22-hour counselling cap, the $30,000 economic-loss cap and the recognition-payment categories all apply to each act of violence or act of modern slavery. Where a victim suffers repeated assaults by the same offender over months, each discrete act can generate a fresh entitlement. However, the Commissioner will require separate applications and will scrutinise whether the acts are truly distinct or form part of a single course of conduct. Failure to plead each act separately can result in under-recovery.

2. Travel time counts against the victim’s hours. Clause 8(2) provides that any period of more than two hours spent travelling by the counsellor is counted as counselling time for the purpose of calculating both the payment to the counsellor and the victim’s remaining hours under cl 5. In regional NSW this can silently exhaust the 22-hour cap before the victim has received the full therapeutic benefit. Practitioners should obtain Commissioner pre-approval for travel-heavy programs or request that a local counsellor be engaged.

3. The GST cap is on the base counselling fee, not the total. Clause 8(3) states that the GST component cannot exceed 10 % of the amount calculated under cl 8(1)(a). Because the tier-2 rate is $144 per hour, the maximum GST recoverable is $14.40, not 10 % of the total including incidental costs. Many invoices incorrectly claim GST on the whole sum; the Commissioner routinely reduces them, leading to disputes that could have been avoided by simple arithmetic at the billing stage.

4. Provisional two-hour counselling is not automatically credited. Although cl 5(3) allows the Commissioner to treat a person as a victim for the first two hours, cl 5(9) permits reimbursement to the victim only if pre-authorisation was not “reasonably practicable”. Victims who pay upfront without attempting to contact the Commissioner’s office risk being out of pocket.

5. Recognition payments and workers compensation. A category B recognition payment of $10,000 is not reduced by workers compensation received for the same injury, but any common-law damages subsequently recovered must repay the recognition payment under s 55 of the Act. Settlement negotiations must therefore factor in this statutory subrogation.

For legal practitioners and victim advocates

• Lodge applications using the exact terminology of the Regulation (“primary victim”, “category B recognition payment”, “actual loss of earnings”).
• Attach documentary evidence of earnings for the 12 months preceding the act of violence when seeking the $20,000 earnings-loss component.
• For counselling applications exceeding 22 hours, prepare a brief statement of “exceptional reasons” supported by a treating psychologist’s report that addresses ongoing risk, complexity of trauma, or cultural factors.
• When acting for overseas victims, obtain the Commissioner’s written approval of the payment method before services commence.
• In NCAT reviews, cite the specific clause (e.g. “cl 10(3)(d) justice-related expenses”) rather than the section of the Act alone.

For approved counsellors

• Maintain records demonstrating compliance with the tier-2 criteria if billing at $144 per hour.
• Invoice separately for travel time exceeding two hours and note it on the victim’s running-hour total.
• Do not charge the victim directly for services within the authorised hours; the Regulation requires direct payment from the Fund.

For the Commissioner’s staff

• Apply the per-incident rule strictly; create separate files for each distinct act.
• Document the formation of opinion on “specialist counselling skills”, “exceptional reasons” and “appropriate” further counselling to withstand NCAT scrutiny.
• Use the exact scale in the Table to cl 8; do not round up or add unapproved incidental costs.

Organisational compliance checklist

1. Update precedent letters of advice to reflect the 2023 and 2024 amendments.
2. Maintain a running total of authorised counselling hours per victim per act.
3. Implement a two-stage approval process for provisional counselling (initial two hours) and subsequent extensions.
4. Reconcile GST calculations against the 10 % cap on the base hourly rate before authorising payment.
5. Review any overlapping workers compensation or police support scheme files to ensure cl 5(8) is applied and double recovery avoided.

Compliance is achieved by treating the Regulation as a statutory calculator rather than a discretionary guideline. Every cap, sub-limit, and procedural rule has been drafted to eliminate ambiguity; deviation without express statutory authority exposes decisions to successful NCAT review and potential recovery of overpaid funds.