BXH v Commissioner of Victims Rights

[2015] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXH v Commissioner of Victims Rights [2015] NSWCATAD 174
Hearing dates:	17 July 2015
Decision date:	21 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The decisions made by the Senior Assessor upon internal review on 28 April 2015 in relation to Applications numbered 186373 and 187174, respectively, are affirmed.  2. The Application for Administrative Review is dismissed.
Catchwords:	Victims rights and support – administrative review – application of Schedule 2 of Victims Rights and Support Act 2013 to application for compensation – No power to award statutory compensation where Application for Compensation was not finally determined before 3 June 2013 – No eligibility for victims support for immediate needs and financial support for loss of earnings where Application for Compensation was lodged under the old Act – No eligibility for special grant from Victims Compensation Fund where Application for Compensation was lodged outside the prescribed time.
Legislation Cited:	Victims Support and Rehabilitation Act 1996 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Rights and Support Regulation 2013 (NSW) Administrative Decisions Review Act 1997 (NSW)
Cases Cited:	Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355
Texts Cited:	Statutory Interpretation in Australia 5th Ed Pearce and Geddes (Butterworth's)
Category:	Principal judgment
Parties:	BXH (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: BXH (Applicant in person) S Matulewicz, Victims Services (Respondent)
File Number(s):	1510288
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

Background Summary and Original Determinations

1. BXH who is aged 48 years old (DOB: 6 April 1967) lodged two Applications for Compensation, as follows:

Application no. 186373

2. BXH lodged this Application on 10 May 2012. She alleged that she had been the victim of multiple acts of violence that occurred over a period of time from 1 January 1973 to 31 December 1981 at Bondi Junction in New South Wales, as follows:

My father anally raped me at age 6, and raped me at 14, my mother kicked me out of home when I was 12 and I was pack raped by a gang of young men in a car and left on the side of a road, and I was raped in my bed by a teacher at boarding school at 14yo.

3. BXH stated that she reported these incidents to the Police on 1 April 1997 and she reported the matters, after a delay, “as soon as I remembered, in 1997 when I stopped drinking.” She named two of the alleged offenders, but stated that the Police declined to investigate these matters “due to my psychiatric history.” She claimed compensation under Schedule 1 of the Victim Support and Rehabilitation Act 1996 (the old Act) for sexual assault and domestic violence. While she did not specifically nominate a psychological or psychiatric disorder, she requested the appointment of an authorised report writer (ARW). In addition, she indicated that she also claimed loss of earnings, but that she intended to claim moneys from other sources, as follows:

Workers Compensation – If I am able to claim workers compensation for being unable to work due to my injuries I will… from 1997-2012… ex. If it weren’t for these sexual assaults and the psychological injurys sustained I would have been able to work fulltime.

Civil or other court claim – I wish to charge the perpetrators and take legal action with legal aide to prosecute them.

Insurance payment or other source – Permanent disablement claim or income protection with hesta.

4. BXH was not been legally represented in relation to this Application for Compensation.

5. I note that BXH wrote a “cover letter” to the Respondent in relation to this Application, in which she indicated that she wished to claim “damages as a direct result of these two sexual assaults in NSW in 1981/2. Psychological injuries.” She also stated:

I am also applying for victims compensation in QLD, which requires a criminal conviction, and I will be giving the queensland police the details of the perpetrators and all relevant information.

In all, she indicated that she had been the victim of seven incidents of sexual assault and/or attempted sexual assault (4 of which occurred in Queensland, 2 occurred in New South Wales and 1 occurred in the Australian Capital Territory) and she had been sexually and emotionally abused by her mother.

6. On 30 September 2014, the Assessor (Client Claims) decided that an act of violence was not established and issued a Notice of Deferral, pursuant to Section 43 of the Victims Rights and Support Act 2013 (NSW) (“VRSA”), to allow BXH or her legal representative to lodge further reports or submissions in the matter. The Notice of Deferral was in the following terms:

Introduction

(BXH) lodged an application for statutory compensation as a primary victim under the Victims Support and Rehabilitation Act 1996 on 10 May 2012. Leave to accept the application out of time was granted on the 14 May 2012.

I note that (BXH) lodged a further application on the 7 June (file 187174) in relation to a separate allegation of sexual assault and that matter is considered separately.

On 7 May 2013 the New South Wales Government introduced changes to the types of support provided to victims of violent crime in NSW. The changes were introduced in the Victims Rights and Support Act 2013 (“the Act”), which replaces the Victims Support and Rehabilitation Act 1996 (“the previous Act”).

The Act commenced on 3 June 2013. Clauses 4 and 5 of Schedule 2 of the act effectively state that from 7 May 2013 onwards, applications that were lodged but not finally determined under the previous Act should be determined as if they were lodged under the current Act.

This means that (BXH’s) claim will be determined under the provisions of the Victims Rights and Support Act 2013 as an application for victims support.

Support available to Primary Victims

Primary victims who lodged an application for statutory compensation under the Victims Support and Rehabilitation Act 1996 are eligible to claim victims support under the current Act in the nature of counselling services, as well as payment in recognition of the trauma they have suffered. The recognition payment replaces any claim made in relation to ‘compensable injury’ under the previous Act.

Primary Victim of an Act of Violence

An act of violence is defined by section 19 of the Act as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury to a person. (BXH) is applying as a ‘primary victim’. The primary victim of an act of violence is defined as, relevantly, a person who sustains an injury as a direct result of that act (section 20).

(BXH) says in her application that when she was 6 years old, she was anally raped by the alleged offender who is her father, and that he subsequently raped her again when she was 14 years old.

I have carefully considered all the documents in the application although I may not refer to them individually in my determination.

I note a copy of a document that is titled ‘Appendix D’ that appears to have been attached to some other documents, that lists seven allegations of sexual assault of (BXH) between the ages of 2 and 14 years, five of which refer to sexual assaults by her father.

Three of these alleged assaults took place in Queensland and (BXH) has informed Victims Services that she has made an application for victims support in Queensland in relation to these matters.

Of the two alleged incidents of sexual assault that (BXH) says occurred in NSW, (BXH) says she first reported the allegations to the Maroubra police in 1997. I am provided with a COPS report no. E48782956 of the 13 August 2012 in which (BXH) told police that she had reported the matters to police in July 2000 and the police report indicates that a transcript of the original report of 2000 was to be obtained from the police.

I am not provided with any further documentation from the NSW police and I note that (BXH) advised Victims Services in October 2013 that she had made submissions to the Royal Commission and intended to forward Victims Services a copy of the documents she had submitted to the Royal Commission and further information regarding reporting the matter to the police.

I do not appear to have received any further documents and I note that the matter was transferred to Karp O’Neill, Solicitors in May 2013. In our listing letter of 30 June 2014, Victims Services asked (BXH)’s legal representatives to provide medical evidence and any submissions on behalf of (BXH) by the 22 August 2014.

I am not in receipt of any further documents in relation to this application.

I am not provided with any medical or psychological evidence of (BXH) suffering physical or psychological injury as a result of the alleged sexual assaults. I note (BXG) sought approved counselling from Victims Services Approved Counselling Scheme but it is not clear that (she) has approved the consideration of the one report prepared by Madhu Misra in relation to her claim.

In order not to disadvantage (BXH), I intend to defer the final determination of this application, together with her other application (file 187174) to allow time for (BXH) and/or her legal advisors to provide further evidence in relation to details of the allegations, reports to police and evidence of any injury suffered by (her) as a result of the alleged sexual assaults.

For the above reasons, the application is deferred to the next available listing date, to allow (BXH) time to provide any further submissions or reports to Victims Services.

7. On 10 February 2015, the Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 VRSA and determined that an act of violence was established and that BXH was the primary victim of an act of violence and she was awarded a Category B recognition payment in the sum of $10,000. In making that determination, the Assessor provided the following reasons:

Introduction

(BXH) lodged an application for statutory compensation as a primary victim under the Victims Support and Rehabilitation Act 1996 on 10 May 2012. Leave to accept the application out of time was granted on the 14 May 2012.

On 7 May 2013 the New South Wales Government introduced changes to the types of support provided to victims of violent crime in NSW. The changes were introduced in the Victims Rights and Support Act 2013 (“the Act”), which replaces the Victims Support and Rehabilitation Act 1996 (“the previous Act”).

The Act commenced on 3 June 2013. Clauses 4 and 5 of Schedule 2 of the act effectively state that from 7 May 2013 onwards, applications that were lodged but not finally determined under the previous Act should be determined as if they were lodged under the current Act.

This means that (BXH’s) claim will be determined under the provisions of the Victims Rights and Support Act 2013 as an application for victims support.

Support available to Primary Victims

Primary victims who lodged an application for statutory compensation under the Victims Support and Rehabilitation Act 1996 are eligible to claim victims support under the current Act in the nature of counselling services, as well as payment in recognition of the trauma they have suffered. The recognition payment replaces any claim made in relation to ‘compensable injury’ under the previous Act.

Primary Victim of an Act of Violence

An act of violence is defined by section 19 of the Act as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury to a person. (BXH) is applying as a ‘primary victim’. The primary victim of an act of violence is defined as, relevantly, a person who sustains an injury as a direct result of that act (section 20).

(BXH) says in her application that when she was 6 years old, she was anally raped by the alleged offender who is her father, and that he subsequently raped her again when she was 14 years old.

I have carefully considered all the documents in the application although I may not refer to them individually in my determination.

I note that this application and another application for (BXH) were deferred on the 23 September 2014 to allow (BXH) sufficient time to provide further information and documents in the matter.

I note that (BXH) did make a report to police in 2000 but (she) has not provided further information in relation to that report. I note the report to the police on 13 August 2012 was in very general terms and related to both this application and (her) other application (file 187174).

I note that (BXH) undertook to provide Victims Services with copies of other documents she had submitted to the Royal Commission but I note we have not been provided with any additional documents in this regard.

I have considered the report of the Rape & Domestic Violence Services Australia report of the 28 November 2014 in which it confirmed that (BXH) reported the same incidents to this Agency in January 2013 and has had a number of counselling sessions in relation to these allegations since that time.

I note that this report opines that (BXH) suffers from PTSD which she attributes to her early alleged traumatic experiences and even though I note that (she) has suffered other traumatic incidents in her life, such as the loss of custody of her son, I am prepared to accept that her earlier traumatic experiences the subject of this application may have played a contributory role in the development of subsequent traumas that have affected (her).

For these reasons, I am prepared to accept this report as evidence that (BXH) suffered psychological harm as a result of the alleged childhood sexual assaults.

It is not necessary to have a conviction in order to succeed in an application for victims support. In this case, the history of the report of matters to the police remains unclear but given the beneficial nature of the legislation, I am prepared to accept that (BXH) attempted to report these incidents in 2000 and therefore, I am prepared to accept that (she) was the victim of violent conduct in the course of behaviour that could amount to a criminal offence.

For all the above reasons, I am prepared to find that on the balance of probabilities, an act of violence is established that meets all the requirements of section 19 of the Act.

Section 44 Consideration

I am required by the legislation to consider whether there are any factors under section 44 of the Act that would lead me to decline victims support to the applicant or to reduce any amount payable.

I note that the alleged incidents were not reported to the police at or near the time they occurred but appear to have been reported first in 2000 when (BXH) was 33 years old. Given the nature of the allegations and the very young age of (BXH) at the time of the alleged incidents, I do not intend to decline or reduce any amount I may consider approving on the basis of considerations under Section 44 of the Act.

Recognition Payments

Recognition payments under section 36 of the Act are payable to primary victims of particular types of acts of violence. Following consideration of the applicant’s original application for statutory compensation and the available evidence, it is my view that the applicant is eligible for a recognition payment in relation to the following category under Section 35:

A Category B recognition payment is a payment given in respect of an act of violence of the following kinds:

(a) A sexual assault resulting in serious bodily injury or which or which involved an offensive weapon or was carried out by 2 or more persons,

(b) A sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts.

I have carefully considered all the material provided and on the basis of the description of the act of violence and the injuries suffered by (BXH) as a result, I consider the most appropriate classification of the act of violence is as a sexual assault that is one of a series of related acts.

On that basis, I approve a payment of $10,000 under Category B of section 35 of the Act.

Special Grant from Victims Support Fund

Clause 5(3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years of the act of violence or 2 years from the day after the applicant reached the age of 18 years, where applicable.

(BXH) applied for statutory compensation on 10 May 2012. The act of violence occurred in 1973 and again in 1981. (BXH) turned 18 years old on the 6 April 1985. Therefore, (she) lodged the application for victims support approximately 31 years after the alleged incidents and 27 years after her 20 (sic) birthday.

The applicant is therefore not eligible to receive a Schedule 2 Clause 5(3) grant.

I note that the Assessor also awarded professional costs in the sum of $825 plus GST if applicable.

8. The Respondent posted a copy of the decision to BXH on 11 February 2015.

Application no. 187174

9. This Application was lodged on 7 June 2012. She alleged that she was the victim of sexual assaults that occurred on 1 January 1981 and over a period of time from 1 January 1981 to 31 December 1982, at Bondi Junction and Orange in New South Wales, as follows:

My father raped me at … Bondi Junction when I was 14yo.

My maths teacher (name provided) raped me in my dormitory in orange when I was in yr 10 (14yo).

10. BXH stated that she reported these incidents to the Police in 2000, after a delay and provided the following reason for the delay:

I stopped drinking in 1996/97 & when I remembered all the sexual assaults I immediately went to the Maroubra Police & have 2 VHS videos of my reports of the assaults – Police would not investigate.

In relation to “Court proceedings”, BXH stated:

I went through the Childrens Court in 2008 when DoCS removed my child (3yo) from me soon after my sister died & I remembered the rape by my father.

She claimed compensation under Schedule 1 of the Victim Support and Rehabilitation Act 1996 (the old Act) for sexual assault and alleged that she had also suffered, “psychological injury; mental illness; unable to marry – fear of men; unable to have my own family; loss of career/work; financial hardship; DoCS took my child until he’s 18.” She also indicated that was claiming income protection & permanent disablement from Hesta.

11. This Application indicated that BXH was legally represented by Friend & Co, Lawyers, but there is no correspondence from that Firm in the Respondent’s s 58 documents.

12. On 30 September 2014, the Assessor (Client Claims) decided that an act of violence was not established and issued a Notice of Deferral, pursuant to Section 43 of the Victims Rights and Support Act 2013 (NSW) (“VRSA”), to allow BXH or her legal representative to lodge further reports or submissions in the matter. The Notice of Deferral was in the following terms:

Introduction

(BXH) lodged an application for statutory compensation as a primary victim under the Victims Support and Rehabilitation Act 1996 on 17 June 2012. Leave to accept the application out of time was granted on the 8 June 2012.

I note that (BXH) lodged a further application on the 10 May 2012 (file 186373) in relation to a separate allegation of sexual assault and that matter is considered separately.

On 7 May 2013 the New South Wales Government introduced changes to the types of support provided to victims of violent crime in NSW. The changes were introduced in the Victims Rights and Support Act 2013 (“the Act”), which replaces the Victims Support and Rehabilitation Act 1996 (“the previous Act”).

The Act commenced on 3 June 2013. Clauses 4 and 5 of Schedule 2 of the act effectively state that from 7 May 2013 onwards, applications that were lodged but not finally determined under the previous Act should be determined as if they were lodged under the current Act.

This means that (BXH’s) claim will be determined under the provisions of the Victims Rights and Support Act 2013 as an application for victims support.

Support available to Primary Victims

Primary victims who lodged an application for statutory compensation under the Victims Support and Rehabilitation Act 1996 are eligible to claim victims support under the current Act in the nature of counselling services, as well as payment in recognition of the trauma they have suffered. The recognition payment replaces any claim made in relation to ‘compensable injury’ under the previous Act.

Primary Victim of an Act of Violence

An act of violence is defined by section 19 of the Act as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury to a person. (BXH) is applying as a ‘primary victim’. The primary victim of an act of violence is defined as, relevantly, a person who sustains an injury as a direct result of that act (section 20).

(BXH) says in her application that when she was 14 years old, she was raped in her school dormitory by the alleged offender who was her maths teacher at the time.

I have carefully considered all the documents in the application although I may not refer to them individually in my determination.

I note a copy of a document that is titled ‘Appendix D’ that appears to have been attached to some other documents, that lists seven allegations of sexual assault of (BXH) between the ages of 2 and 14 years, one which relates to the alleged rape by her teacher at the age of 14..

Three of these alleged assaults took place in Queensland and (BXH) has informed Victims Services that she has made an application for victims support in Queensland in relation to these matters.

The other matters are the subject of BXH’s other application (file 186373) that matter is decided separately.

(BXH) says she first reported the allegations to the Maroubra police in 2000. I am provided with a COPS report no. E48782956 of the 13 August 2012 in which (BXH) told police that she had reported the matters to police in July 2000 and the police report indicates that a transcript of the original report of 2000 was to be obtained from the police.

I am not provided with any further documentation from the NSW police and I note that (BXH) advised Victims Services in October 2013 that she had made submissions to the Royal Commission and intended to forward Victims Services a copy of the documents she had submitted to the Royal Commission and further information regarding reporting the matter to the police.

I do not appear to have received any further documents and I note that the matter was transferred to Karp O’Neill, Solicitors in May 2013. In our listing letter of 30 June 2014, Victims Services asked (BXH)’s legal representatives to provide medical evidence and any submissions on behalf of (BXH) by the 22 August 2014.

I am not in receipt of any further documents in relation to this application.

I am not provided with any medical or psychological evidence of (BXH) suffering physical or psychological injury as a result of the alleged sexual assaults. I note (BXG) sought approved counselling from Victims Services Approved Counselling Scheme but it is not clear that (she) has approved the consideration of the one report prepared by Madhu Misra in relation to her claim.

In order not to disadvantage (BXH), I intend to defer the final determination of this application, together with her other application (file 186373) to allow time for (BXH) and/or her legal advisors to provide further evidence in relation to details of the allegations, reports to police and evidence of any injury suffered by (her) as a result of the alleged sexual assaults.

For the above reasons, the application is deferred to the next available listing date, to allow (BXH) time to provide any further submissions or reports to Victims Services.

13. On 10 February 2015, the Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 VRSA and determined that an act of violence was established and that BXH was the primary victim of an act of violence and she was awarded a Category C recognition payment in the sum of $5,000. In making that determination, the Assessor provided the following reasons:

Introduction

(BXH) lodged an application for statutory compensation as a primary victim under the Victims Support and Rehabilitation Act 1996 on 7 June 2012. Leave to accept the application out of time was granted on the 8 June 2012.

On 7 May 2013 the New South Wales Government introduced changes to the types of support provided to victims of violent crime in NSW. The changes were introduced in the Victims Rights and Support Act 2013 (“the Act”), which replaces the Victims Support and Rehabilitation Act 1996 (“the previous Act”).

The Act commenced on 3 June 2013. Clauses 4 and 5 of Schedule 2 of the act effectively state that from 7 May 2013 onwards, applications that were lodged but not finally determined under the previous Act should be determined as if they were lodged under the current Act.

This means that (BXH’s) claim will be determined under the provisions of the Victims Rights and Support Act 2013 as an application for victims support.

Support available to Primary Victims

Primary victims who lodged an application for statutory compensation under the Victims Support and Rehabilitation Act 1996 are eligible to claim victims support under the current Act in the nature of counselling services, as well as payment in recognition of the trauma they have suffered. The recognition payment replaces any claim made in relation to ‘compensable injury’ under the previous Act.

Primary Victim of an Act of Violence

An act of violence is defined by section 19 of the Act as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury to a person. (BXH) is applying as a ‘primary victim’. The primary victim of an act of violence is defined as, relevantly, a person who sustains an injury as a direct result of that act (section 20).

(BXH) says in her application that when she was 14 years old she was raped in her school dormitory by the alleged offender who was her maths teacher at the time.

I note that this application and another application for (file 186373) were deferred on the 23 September 2014 to allow (BXH) sufficient time to provide further information and documents in the matter.

I note that (BXH) did make a report to police in 2000 but (she) has not provided further information in relation to that report. I note the report to the police on 13 August 2012 was in very general terms but confirmed the allegations made in this application.

I note that (BXH) undertook to provide Victims Services with copies of other documents she had submitted to the Royal Commission but I note we have not been provided with any additional documents in this regard.

I have considered the report of the Rape & Domestic Violence Services Australia report of the 28 November 2014 in which it confirmed that (BXH) reported the same incidents to this Agency in January 2013 and has had a number of counselling sessions in relation to these allegations since that time.

I note that this report opines that (BXH) suffers from PTSD which she attributes to her early alleged traumatic experiences and even though I note that (she) has suffered other traumatic incidents in her life, such as the loss of custody of her son, I am prepared to accept that her earlier traumatic experiences the subject of this application may have played a contributory role in the development of subsequent traumas that have affected (her).

For these reasons, I am prepared to accept this report as evidence that (BXH) suffered psychological harm as a result of the alleged childhood sexual assaults.

It is not necessary to have a conviction in order to succeed in an application for victims support. In this case, the history of the report of matters to the police remains unclear but given the beneficial nature of the legislation, I am prepared to accept that (BXH) attempted to report the incident in 2000 and therefore, I am prepared to accept that (she) was the victim of violent conduct in the course of behaviour that could amount to a criminal offence.

For all the above reasons, I am prepared to find that on the balance of probabilities, an act of violence is established that meets all the requirements of section 19 of the Act.

Section 44 Consideration

I am required by the legislation to consider whether there are any factors under section 44 of the Act that would lead me to decline victims support to the applicant or to reduce any amount payable.

I note that the alleged incidents were not reported to the police at or near the time of its occurrence. However, given the nature of the allegations and the very young age of (BXH) at the time of the alleged incidents, I do not intend to decline or reduce any amount I may consider approving on the basis of considerations under Section 44 of the Act.

Recognition Payments

Recognition payments under section 36 of the Act are payable to primary victims of particular types of acts of violence. Following consideration of the applicant’s original application for statutory compensation and the available evidence, it is my view that the applicant is eligible for a recognition payment in relation to the following category under Section 35:

A Category C recognition payment is a payment given in respect of an act of violence of the following kinds:

(a) A sexual assault other than one referred to in subsection 2(b),

(b) An attempted sexual assault resulting in serious bodily injury,

(c) An assault resulting in grievous bodily harm,

(d) physical assault of a child that is one of a series of related acts.

I have carefully considered all the material provided and on the basis of the description of the act of violence and the injuries suffered by (BXH) as a result, I consider the most appropriate classification of the act of violence is as a sexual assault.

On that basis, I approve a payment of $5,000 under Category C of section 35 of the Act.

Special Grant from Victims Support Fund

Clause 5(3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years of the act of violence or 2 years from the day after the applicant reached the age of 18 years, where applicable.

(BXH) applied for statutory compensation on 7 June 2012. The act of violence occurred in 1981 when (BXH) was 14 years old. (She) did not apply for victims compensation within 2 years after turning 18, that is by 1987 and for this reason, the application does not meet the statutory requirements of the Act in relation to the Special Grant.

The applicant is therefore not eligible to receive a Schedule 2 Clause 5(3) grant.

I note that the Assessor also awarded professional costs in the sum of $825 plus GST if applicable.

14. The Respondent posted a copy of this decision to BXH on 11 February 2015.

Applications for Internal Review

15. On 24 February 2015, BXH wrote to the Respondent and requested an internal review of both decisions that were made by the Assessor (Compensation Claims) on 10 February 2015. She made the following submissions in support of her requests for review:

I have received the ‘Acceptance of Payments’ forms for recognition of 2 of the 7 sexual assaults I suffered, and copies of the decision. After reading the information, I am concerned that you may not have received the original police reports, victims impact statement and other documents I posted via registered post several weeks ago. Therefore I am returning the documents, and have underlined the areas of concern in the decision and am resending the police reports with further documentation, to satisfy the assessors of my actual eligibility for financial compensation.

I would like to request a full review of my cases, taking into consideration my current crisis living in DOH with AVO court proceedings in progress against an abusive neighbour and the fact that I was recently a victim of a religious FRAUD and lost $2500, and would like to open 2 new victims compensation claims for counselling related to these issues and apply for Financial assistance for immediate needs to be housed safely until the AVO hearing in court on the 19/5/15, after which my transfer application can be processed by DOH.

I have filled out the application for support for primary victims form, and would like to apply for all 4 categories of assistance; namely counselling, financial assistance for immediate needs, financial assistance for economic loss (lost earnings) and the recognition payment for the other 5 assaults which I have already accepted and signed for 2 assaults. I would like to receive the maximum amount of financial assistance please, and will enclose all the relevant documents and evidence to support this payment.

My pre-disability earnings were $65,237.23pa for justice Health and $62,000pa for HCA. My income protection form Comminsure (for JH job) ceased in January 2014, due to my p/t work as a swim instructor, only a few hours per week. JH caused my Nurses registration to be suspended which meant that I had to stop work with HCA. The progress of my victims services claim has been delayed by the difficulties with victim services approved counsellors.

Please note that I am also applying for a review of the NRB decision as Justice Health’s assessment of my clinical skills at the time of my termination from the jail is not congruent with my employment with NAA (nursing agency Australia/now HCA healthcare Australia) where I was working as an agency RN in high dependency areas in several private hospitals at the same time as I was working in Justice Health. I also have a comprehensive psychiatric report commissioned by DoCS, now FACS in 2008 by Clive Smith where he describes the phenomena that I am sane and normal and health in neutral environments but become mentally unstable and show symptoms when dealing with the issues related to my sexual abuse such as my child and DOCS and this would include working in the mens prison where I was exposed to dealing with convicted rapists and paedophiles.

I may need to take legal action against the police, justice health and Comminsure, and make a comprehensive notification to AHPRA about my victims services approved counsellor Madhu Misra, who caused my victims compensation claim to be delayed. I am also in communication with the nurses registration board in regard to removing conditions on my registration so I can renew my registration.

Please find enclosed the following documentation:

- Application for support for primary victims form186373A & 187174A Acceptance of Payments form and decisions, with underlined areas of concern, signed and witnessed

- Copies of all documents sent 2 weeks ago – coverletter, NSW & QLD police reports, victims impact statement, statement to the royal commission, witness statement relating to current avo court action

- Correspondence with police throughout my claim; emails, complaints, letters from ombudsman

- Child support debt letter (DoCS removed my child from me in 2007)

- Centrelink debt letter

- Separation Certificate Justice Health

- Documentation from Justice Health

- Documentation from Nursing & Midwifery Council

- CV and Stat Dec & 2012 nurses registration

- HCA (NAA) employment statement and clinical assessment

- Comminsure monthly medical assessments and pre-disability earnings

- Notification to AHPRA – Madhu Misra

- Rape & Domestic Violence Report

- AVO documents from current crisis situation (court hearing scheduled 19/5/15 downing centre)

Please let me know if there is any further information that would be helpful to assess my claim. I can ask my rape and domestic violence counsellor to write another report, that is more comprehensive and this may make my situation more clear.

In summary, I experienced 7 sexual assaults between the ages of 2-14.

Drank and used drugs between the ages of 12-28.

Saw psychiatrists and took medication between ages 22-44, however no longer see psychiatrists or take any medication as I am lactose intolerant and choose to get counselling from Rape and Domestic Violence. I disagree with the label of Bipolar and believe I suffer with ptsd, which has been supported and confirmed by several female doctors, psychologists and counsellors.

Graduated as a registered nurse in 1990 and have accrued as an 8th year fulltime RN since then working as best as I could.

Remembered the sexual assaults in 1998 after going to AA and ceasing use of alcohol and drugs, reported the sexual assaults to police in 2000, began an extensive journey of therapy and counselling and support groups.

Lost custody of my 3yo child via DOCS intervention in 2007 following the tragic death of my sister, whom I witnessed being repeatedly raped and taken for 2 abortions when she was 16 and I was 10yo. This destabilised me & I lost my employment and nurses registration in dec2011 after working in a mens jail because the NRB placed conditions on my nurses registration preventing me from working as an RN pending a psychiatric review, after termination by Justice Health, who asked me to resign but I refused.

I commenced a victims compensation claim in 2012 and progressed my complaint with police, made police reports and statements, went to the royal commission and have had extensive counselling since 2012, I would like to claim the maximum amount to cover my Centrelink debt ($23,000), child support debt ($8,500) compensate me for other losses and pay for accommodation until the DOH can transfer me to a safer property.

I would like all documents returned to me via post after my review assessment, and if possible a statement from victims services outlining the area I have been compensated for and the outcome, for use in regards to my outstanding issues with DOCS in the childrens court and the NRB. I also noted that the offer of the 2 recognition payments relates to only 2 of the 7 sexual assaults I suffered do I need to go to the ACT for the pack rape assault? And QLD for the other assaults? I would like to receive JUSTICE and have the whole 7 episodes of sexual assault recognised…

16. On 28 April 2015, the Senior Assessor completed the internal review of both decisions made by the Assessor (Compensation Claims) and issued Notices of Review Decisions pursuant to s 49 VRSA.

Application No. 186373

17. On 28 April 2015, the Senior Assessor determined that the evidence establishes that BXH was the primary victim of an act of violence and that she is eligible for a recognition payment under Category B pursuant to s 35(2) (b) VRSA and approved payment in the sum of $10,000 pursuant to s 35(1) (c) VRSA and cl 12 of the Victims Rights and Support Regulation 2013 (NSW). In making that decision, the Senior Assessor confirmed that cl 4 and cl 5 of sch VRSA effectively state that from 7 May 2013 onwards, applications that were lodged under the old Act but not finally determined under that Act should be determined as if they were lodged under VRSA and that the application was therefore determined under the provisions of VRSA as an application for victims support.

18. The Senior Assessor also considered and discussed the further evidence and submissions made by BXH in her request for internal review and stated, relevantly:

24. After carefully reading the information the applicant has submitted with her application it appears that the incident that occurred when she was six (as stated in her original application form) occurred in another jurisdiction. There were other incidences of sexual and physical violence involving the alleged offender that occurred in Queensland and there is evidence on file that the applicant has made a statement to police about those incidences in that jurisdiction.

25. I also note the applicant alleges her mother sexually abused her when she was aged 6 or 7 years at their then home in Canberra.

26. …victims services have advised the applicant that incidences that have occurred outside of NSW will unfortunately necessitate the applicant making inquiries with relevant agencies in those jurisdictions about the options available to her in relation to any additional victims support she may be able to seek in those jurisdictions.

…

28. The report of Ms Helen Basili, Social Worker, from the Rape and Domestic Violence Services Australia whom the applicant saw over a period of 18 sessions (when the report was written on 28 November 2014) concludes that the applicant presented with a number of trauma related symptoms against a background of childhood sexual assault and she was clinically assessed as having significant levels of Post-Traumatic Stress Disorder (PTSD) symptoms.

29. I also note that there has been further trauma in the applicant’s life associated with the removal of her then three year old son from her care and her de-registration as a nurse when exposed to working in Long Bay with men who were incarcerated for sex offences.

30. Ms Basili says that it is likely that an intensification of the applicant’s PTSD symptoms has result due to further traumas in her life…

19. The Senior Assessor referred to the original decision and noted that while the Assessor (Compensation Claims) approved a Category B recognition payment, the evidence indicated that BXH was sexually assaulted by her father in NSW on only one occasion, when she was 14 years old. The Senior Assessor concluded, relevantly:

35. I do note that the applicant alleges she witnessed multiple sexual violence perpetrated against her two sisters at different times including NSW.

36. With the benefit of the totality of the evidence on file and the propensity of alleged sexual violence perpetrated by the applicant’s father towards the applicant over a period of time and allegedly towards her sisters, I have taken a beneficial approach and will make a finding that it is more likely than not that there was more than one occasion of sexual violence perpetrated against the applicant as a child in NSW by her father that would amount to a series of related acts.

However, the Senior Assessor determined that BXH was not eligible for a special grant from the Victims Support Fund and in relation to the claim for financial assistance for immediate needs and/or economic loss, stated:

50. In the most recent application the applicant lodged on 24 February 2015 with the request for internal review which appears to relate to the same acts of violence for which claims 186373 and 187174 have been lodged the applicant is seeking financial assistance for loss of earnings relating to her job loss in 2011.

51. As stated in paragraph 17 above, applicants who lodged applications under the repealed Act unfortunately are not entitled to receive financial assistance under the new Act.

20. The Respondent posted a copy of the Review Decision to BXH on 1 May 2015.

Application no, 187174

21. On 28 April 2015, the Senior Assessor determined that the evidence establishes that BXH was the primary victim of an act of violence and that she is eligible for a recognition payment under Category B pursuant to s 35(2) (b) VRSA and approved payment in the sum of $10,000 pursuant to s 35(1) (c) VRSA and cl 12 of the Victims Rights and Support Regulation 2013 (NSW). In making that decision, the Senior Assessor confirmed that cl 4 and cl 5 of Sch VRSA effectively state that from 7 May 2013 onwards, applications that were lodged under the old Act but not finally determined under that Act should be determined as if they were lodged under VRSA and that the application was therefore determined under the provisions of VRSA as an application for victims support.

22. The Senior Assessor also considered and discussed the further evidence and submissions made by BXH in her request for internal review, and stated, relevantly:

24. According to the statement the applicant gave to police sometime in 1982 the applicant was in a dormitory at the … School in Orange lying down as she was sick. On the first occasion which the applicant described as “attempted rape” her maths teacher and house master got into bed with her and ordered to remove her clothes and was behind her. He then got out of the bed and went away.

26. On the second occasion the applicant says after she moved across the hall to another dormitory the alleged offender came back into the room, got on top of her and vaginally sexually assaulted her with his penis…

27. it is not entirely clear what time had elapsed between the first incident described above to the second.

28. The report of Ms Helen Basili, Social Worker, from the Rape and Domestic Violence Services Australia whom the applicant saw over a period of 18 sessions (when the report was written on 28 November 2014) concludes that the applicant presented with a number of trauma related symptoms against a background of childhood sexual assault and she was clinically assessed as having significant levels of Post-Traumatic Stress Disorder (PTSD) symptoms.

29. I also note that there has been further trauma in the applicant’s life associated with the removal of her then three year old son from her care and her de-registration as a nurse when exposed to working in Long Bay with men who were incarcerated for sex offences.

30. Ms Basili says that it is likely that an intensification of the applicant’s PTSD symptoms has result due to further traumas in her life…

23. The Senior Assessor referred to the original decision and noted that while the Assessor (Compensation Claims) approved a Category C recognition payment. However, based upon the totality of the evidence on file the Senior Assessor implied that there were two distinct separate acts of sexual violence perpetrated against BXH as a child by her maths teacher that would amount to a series of related acts for the purposes of s 19(4) VRSA. Therefore, the Senior Assessor approved a Category B recognition payment in the sum of $10,000. However, the Senior Assessor agreed that BXH was not eligible for a special grant from the Victims Support Fund and in relation to the claim for financial assistance for immediate needs and/or economic loss, stated:

50. In the most recent application the applicant lodged on 24 February 2015 with the request for internal review which appears to relate to the same acts of violence for which claims 186373 and 187174 have been lodged the applicant is seeking financial assistance for loss of earnings relating to her job loss in 2011.

51. As stated in paragraph 17 above, applicants who lodged applications under the repealed Act unfortunately are not entitled to receive financial assistance under the new Act.

24. The Respondent posted a copy of the Review Decision to BXH on 1 May 2015.

Application for Administrative Review

25. On 28 May 2015, BXH lodged the current Application for Administrative Review of the Senior Assessor’s decisions in relation to applications numbered 187174 and 186373. She did not set out any particular grounds, but instead attached a letter dated 26 May 2015, in which she asserted, relevantly:

Application no. 187174

…I have read through the decision and have elected to have the decision reviewed by NCAT as I disagree with point 5. In the introduction which states that ‘under the new legislation the matters lodged under the old legislation should be determined as if they were lodged under the current act’. I will dispute this. The fact remains that I lodged the Application in 2012 under the old legislation. The maximum payment for Category B assault is $50,000.

In number 25 of the decision I need to point out a correction. In the attempted rape in 1981 in my yr9 dormitory bed the perpetrator did not get into bed with me but appeared to be negotiating how he would get into bed with me, before he aborted his attempt, never the less I was stunned and traumatized by the violation of my privacy and the use of teacher authority over telling me to remove my clothes. In the 2nd incident in 1982 in my yr10 dormitory across the hall he actually got into my bed and sexually assaulted me.

In number 31 of the decision I disagree with the view that my current traumatic living conditions in dept. of housing and the AVO matter before the courts is unrelated to the assaults. I would like the opportunity to prove that the current trauma is directly related to these assaults. I would not be in my current traumatic predicament in DOH with no money and no job and no family support or protection, if it wasn’t for the fact that I was raped by my father and teacher at age 14.

In regards to no. 44 of the special Grant from the victims support Fund, I believe I AM ENTITLED TO BE PAID THE GRANT as I repressed the memory of the sexual assaults straight away at age 14yo after they happened and reported them in 2000 to police within 2 years of remembering them in 1998.

26. BXH also made submissions regarding her income protection claim and the alleged circumstances in which Justice Health terminated her employment and maintained that she wanted to claim financial assistance for immediate needs and/or economic loss.

Application no. 186373

27. In relation to this Application, BXH stated that she disputed the contents of paragraphs 5 and 34 of the decision and that she wishes to be recognised and compensated for all of the damage to her psyche at the age of y years, including assaults that occurred in the ACT and QLD. She also stated, relevantly:

In number 43 it states in the decision that I am entitled to the highest award for sexual assault being a Categorie (sic) 3 recognition payment, and according to my schedule (enclosed) is $50,000.

Once again in no. 48 I am entitled to the special grant as I repressed the memory of the abuse/assaults as soon as they occurred and reported them to police within 2 years of remembering them.

In no. 50 and 51 I am entitled to claim for immediate needs so I can travel to Canberra and Brisbane to deal with victims services and complete my healing and closure for the sexual assaults that occurred there (see table of 7 sexual assaults enclosed) and I am entitled to claim for economic loss as if I wasn’t dealing with the situation I would be earning over $65,000 per year as a registered nurse. Therefore I am entitled to over $195,000 from lost earnings in 2012, 2013, 2014 etc.

My Solicitor has informed me that should I choose to accept the current recognition payment offer of $10,000, I will only have to pay it back if I win the civil action against the (…) school and (… the teacher), currently in progress.

Therefore in conclusion, please be advised that I am rejecting the 2 offers enclosed and wish to progress my complaint to NCAT. In making this decision I have also taken into consideration the fact that I owe Centrelink over $23,000 (see enclosed debt letter), most of this Centrelink overpayment was spent on healing purposes. I had my child removed from me in 2000 and have a $10,000 child support debt (see enclosed debt letter) the $10,000 offer wouldn’t cover my costs. I am seeking enough money to be able to buy a small unit in a safe environment where I can live in peace and perhaps go back to work and pay off a small mortgage. For this to happen I will require a payment of at least $500,000 between NSW, QLD & ACT including a calculated increase in the SPI since the assaults applied to my final payout.

I am entitled to this as I have lived in DOH with constant trauma and problems with abusive neighbours for 20 years and had the abuse not occurred I would certainly have been able to marry well, develop my career as a nurse and have a family etc. and live in a safe house.

The damages from the 7 sexual assaults should amount to the outright cost of a two bedroom flat in Sydney in a safe area…

28. As the Senior Assessor’s decisions were served by post on 1 May 2015, the current Application for Administrative Review was lodged within time.

Consideration (Both Applications for Compensation)

29. This Tribunal’s powers in relation to an application for administrative review are governed by Section 63 of the Administrative Decisions Review Act 1997 (NSW) (“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.

30. The Application for Administrative Review came before on 17 July 2015, when BXH appeared in person and Mr Matulewicz appeared for the Respondent. The Respondent had lodged the documents required by Section 58 of ADR Act and these were comprehensive and complete.

31. BXH made submissions that were consistent with her letter dated 26 May 2015 and she advised the Tribunal to the effect that she wished to pursue her agenda and that this involved lodging an Appeal in the Supreme Court of NSW if the Tribunal did not award her the compensation and damages that she feels entitled to.

32. I have read and considered all of the evidence that was before the Assessor (Client Services) and the Senior Assessor (upon Internal Review) in relation to both applications numbered 186373 and 187174, respectively, and the documents that BXH lodged with her current Application for Administrative Review. I have also considered the s 58 documents lodged by the Respondent. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons.

Act of Violence

33. Section 23(1) VRSA provides that a primary victim of an act of violence is eligible for the support under the Scheme described in Section 26 VRSA. Further, “act of violence” is defined in Section 19 VRSA as follows, relevantly:

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

(2) For the avoidance of doubt, the reference to an offence in subsection (1) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

34. The onus is on BHH to prove the allegations of sexual assault on the balance of probabilities and based upon the available evidence, I am satisfied that she has discharged that onus of proof and that acts of violence have been established as alleged.

35. Section 20(1) VRSA defines “primary victim of an act of violence” as “… a person who is injured… as a direct result of that act.” Based on the available evidence, I am satisfied that BXH suffered a psychological injury as a result of the acts of sexual assault alleged in the Applications for Compensation.

Eligibility for Compensation

36. It is necessary to determine BXH’s eligibility to compensation in relation to the acts of violence that have been established. However, BXH asserts an entitlement to statutory compensation under Schedule 1 of the old Act on the basis that she lodged both Applications for Compensation under the old Act. She has described the determinations made by the Senior Assessor upon internal review as “offers” of compensation and outlined her demands for compensation and/or damages in her letter dated 26 May 2015 (the relevant parts of which have been extracted previously in this decision).

37. With respect to BXH, this Tribunal does not have power to grant her the relief that she set out in her letter dated 26 May 2015 and this is particularly the case in relation to “damages” for economic loss and/or loss of earnings. It can only approve a grant of victims support for economic loss where it is specifically empowered to do so under legislation that is in force at the date of its determination.

38. In the current matter, while the Applications for Compensation were lodged while the old Act was in force, they were not finally determined by the Respondent before 3 June 2013, being the date upon which the old Act was repealed and VRSA commenced and the determination of the Applications for Compensation are therefore subject to by Sch 2 VRSA.

39. Sch 2 VRSA provides, relevantly:

Schedule 2 Savings, transitional and other provisions

Part 2 Provisions consequent on enactment of this Act

2   Interpretation

(1)  In this Part:

introduction day means the day the Bill for this Act was first introduced into Parliament.

statutory compensation means statutory compensation within the meaning of the repealed Act.

the repealed Act means the Victims Support and Rehabilitation Act 1996 as in force immediately before its repeal by this Act.

(2)  For the purposes of this Part, proceedings are not finally determined if:

(a)  any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b)  any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).

…

.

4   Statutory compensation scheme closure

(1)  Statutory compensation is not payable after the introduction day unless an application for the statutory compensation was finally determined before that day.

(2)  Statutory compensation that would have been payable (less any deductions under section 19A of the repealed Act) from the Victims Compensation Fund pursuant to an application that was finally determined before the introduction day is payable (less such deductions) from the Victims Support Fund under this Act.

5   Applications for compensation under statutory compensation scheme

(1)  An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.

(2)  The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both.

(3)  The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund.

(4)  In subclause (3):

prescribed period means:

(a)  the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or

(b)  if the victim concerned was a child when the relevant act of violence was committed—within 2 years after the child reaches 18 years of age.

(5)  Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act.

(6)  The amount determined to be payable to the applicant under this clause is to be reduced by the amount of any interim award of statutory compensation made to the applicant under section 33 of the repealed Act.

(7)  The applicant is not required to refund any part of an interim award of statutory compensation made to the applicant under section 33 of the repealed Act that is more than the amount determined to be payable under this clause.

40. In the case of Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355, Brennan CJ noted the following matters:

69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

63 Whilst it is fair to observe that there are a small number of conflicts within both the VRSA and the old Act as well as conflicts between those Acts, the predominant observation that I make is that those conflicts seek to limit rather than exclude recovery for victims of violent crime.

64 In Statutory Interpretation In Australia (5th Edition Pearce and Geddes) the issue of beneficial legislation is addressed. (pg 15)

Remedial or Beneficial Acts The courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. ..... What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under a threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches.'

41. In my view, it is clear that cl 5 of sch 2 VRSA proscribes certain conduct under a threat of a penalty and in the current matters, this conduct (or action) relates to the time for lodging of Applications for Compensation. VRSA removes any discretion that existed under the old Act in respect of extending the limitation period for lodging Applications and it only provides for an assessment of the nature of the claim by determining whether an extended lodgement period is available. Even then, that provision is capped (see: s 40(5) VRSA).

42. Further, in relation to pending applications under the old Act, cl 5 is proscriptive and unambiguous. I have examined the Legislative Review Committee Report on the Bill (which became VRSA) and have determined that it is clear that the issue in BXH’s matters were of some concern to the Committee, as follows:

Retrospectivity affecting victims

133. Clauses 4 and 5 of Schedule 2 to the Bill require compensation applications that have not been finalised before the Bill was introduced into Parliament to be dealt with under the new support scheme proposed by the Bill rather than the Victims Support and Rehabilitation Act 1996.

Given the potential for different compensation outcomes under the provisions of the Bill compared to the Victims Support and Rehabilitation Act 1996, the Committee refers to Parliament whether it is appropriate to require existing applications for victims compensation to be dealt with under the provisions of the Bill rather than the Victims Support and Rehabilitation Act 1996.

43. Given the concerns of the Committee, it appears that these issues were considered and were seen to be of no great concern as they were not included in the various amendments to VRSA following its introduction and subsequent passing by the two chambers of the Parliament. In any event, the significant issues in respect of BXH’s entitlements under the scheme were affected by the repeal of the old Act.

44. It follows that by operation of cl 4(1) of sch 2 VRSA, BXH is not eligible for statutory compensation pursuant to Sch 1 of the old Act as her Applications for Compensation (x 2) were not finally determined before the repeal of the old Act on 3 June 2013.

45. Further, by operation of cl 5(1) and cl 5(3) of sch 2 VRSA, BXH is not eligible for financial support for immediate needs or financial assistance for economic loss as her Applications for Compensation were lodged before 3 June 2013, being the date of commencement of VRSA.

46. In addition, by operation of cl 5(3) of sch 2 VRSA, BXH is not eligible for a special grant from the Victims Compensation Fund as she did not lodge either of her Applications for Compensation either within two years of the act of violence, or where relevant, prior to her twentieth birthday.

47. For these reasons, this Tribunal is required to assess each Application for Compensation as if it was an Application for Victims Support lodged under VRSA. This means that BXH is eligible for a recognition payment in respect of each of her Applications for Compensation and based upon a consideration of all of the available evidence, I am satisfied that the Senior Assessor correctly determined her eligibility for a recognition payment in respect of each Application for Compensation. It follows that I am satisfied that the Senior Assessor’s decisions to approve the grant of a Category B recognition payments in respect of each of the Applications for Compensation is the correct and preferable decision in relation to each matter.

Section 44 Considerations

48. I agree with the Senior Assessor that there are no factors under Section 44(1) VRSA that support a decision to either refuse to approve a recognition payment or to reduce the amount of victims support approved to BXH.

Determination

49. Pursuant to Section 63(3)(a) of the Administrative Decisions Review Act 1997, I affirm the decisions of the Senior Assessor dated 28 April 2015 in relation to Applications for Compensation numbered 186373 and 187174, respectively.

Conclusion

50. I make the following orders:

1. I affirm the decisions made by the Senior Assessor upon internal review on 28 April 2015 in relation to Applications numbered 186373 and 187174, respectively.

2. The Application for Administrative Review is dismissed.

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

Decision last updated: 21 August 2015