CTC v Commissioner of Victims Rights

[2017] NSWCATAD 118

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CTC v Commissioner of Victims Rights [2017] NSWCATAD 118
Hearing dates:	1 March 2017
Date of orders:	13 April 2017
Decision date:	13 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 8 December 2015 is affirmed.
Catchwords:	VICTIMS RIGHTS – administrative review – statutory interpretation - whether an application lodged by the applicant’s Guardian under 1996 Act was properly made and determined - whether the determination of the application under the 1996 Act is a bar to claiming victims support under the 2013 Act
Legislation Cited:	Administrative Decisions Review Act 1997 Courts and Crimes Legislation Further Amendment Act 2010 (NSW) Interpretation Act 1987 (NSW) Victims Compensation Act 1987 (NSW) Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 (NSW)
Cases Cited:	CTK v Commissioner of Victims Rights [2017] NSWCATAD 105 Project Blue Sky v Australian Broadcasting Authority 194 CLR 255 Bropho v Western Australia [1990] HCA 24 Harvey v Victims Compensation Tribunal [2001] NSWDC 604 at [41] Newcrest Mining (WA) and Another v Commonwealth of Australia and Another (1997) 147 ALR 42 C & J Clark v IRC [1973] 1 WLR 905 at 911
Texts Cited:	Second Reading Speech of the Victims Rights and Support Bill 2013 – The Hon. Michael Gallacher dated 29 May 2013
Category:	Principal judgment
Parties:	CTC (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: K Avers, Aboriginal Family Violence Prevention & Legal Service (Applicant)   J Singh, Victims Services (Respondent)
File Number(s):	2016/00378390
Publication restriction:	A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

REASON FOR DECISION

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 5 October 2016, the applicant sought administrative review of a decision made by a delegate of the respondent in respect of an application for support that was lodged by the applicant (known by the pseudonym “CTC”).

Background

2. The matter has a complex background involving a total of four applications that were lodged either by or on behalf of CTC. Two applications for compensation were lodged and determined under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”) and two applications for victims support were lodged and determined under the provisions of the Victims Rights and Support Act 2013 (“the new Act”).

First Application for Compensation

3. On 13 October 1999, CTC’s Foster Mother lodged an Application for Compensation on her behalf under the provisions of “the old Act” under the terms of a Guardianship Order made by the Local Court of NSW on 26 January 1995. This alleged that CTC was the primary victim of an act of violence in the nature of a series of indecent assaults that occurred between 1993 and 1994. It named the alleged perpetrator and the location at which the acts occurred and indicated that these were reported to NSW Police on or about 6 May 1994. CTC was 12 years old when this application was lodged.

4. CTC was legally represented by a Solicitor instructed by her Foster Mother.

5. On 9 February 2001, the assessor dismissed the application and provided the following reasons for doing so:

The applicant (DOB provided) claims as a primary victim alleging that she was sexually assaulted by her step-father at (location stated) during 1993 and 1994. In a record of interview, he denied the allegation. The applicant was interviewed by Police on 7 May, 1994. The available evidence in this case was subsequently forwarded to the Office of the Director of Public Prosecutions at Wagga Wagga for advice. The Police were advised that proceedings should not be commenced against the alleged offender as there was no reasonable prospects of a conviction being gained in the matter.

The applicant was examined at (name provided) Hospital and in May, 1994, at the (name provided) Hospital, in Sydney. There was no medical evidence which supported her allegation.

In order to be eligible for an award of statutory compensation, the onus is on the applicant to establish that she is the victim of an act of violence. In this case there has been an allegation made by one party and a denial by the other. On the balance of probabilities, it has not been established that the applicant is the victim of an act of violence.

6. CTC’s solicitor did not lodge an appeal against the assessor’s decision under s 36 of the old Act.

Second Application for Compensation

7. On 15 January 2013, CTC lodged a further application for compensation under the old Act, in which she alleged that she was the primary victim of an act of violence, in the nature of a series of sexual assaults that occurred between 1989 and 1993. These acts were committed by the same perpetrator and at the same location as the acts that were the subject of the first application. CTC stated that she reported these acts of violence to NSW Police on 19 September 2002 and that she did not report them sooner because she believed that she was too young to do so. She claimed compensation for the compensable injuries of sexual assault (categories 2 and 3).

8. CTC was 15 years old when this application was lodged and she was legally represented by Far West Community Legal Centre.

9. On 22 January 2004, the assessor dismissed this application and provided the following reasons for doing so:

The applicant claims for statutory compensation as a primary victim in respect of the course of sexual abuse by her Foster Mother’s boyfriend, (name provided), that is alleged to have occurred between 1989 and 1993 in (location provided).

The Tribunal has received an earlier application from this applicant. Application 61369 was received by the Tribunal on 19 October 1999. The applicant was represented by Ryan Maloney Anderson solicitors. In application 61369 the applicant claimed statutory compensation for a course of abuse by (name of perpetrator provided) occurring between 1993 and 1994 in (location provided). This application was considered by an assessor on 9 February and was dismissed on the basis that the evidence provided to the tribunal did not establish an act of violence on the balance of probabilities.

I have carefully considered the contents of both files and I am completely satisfied that each application relates to the same course of the abuse by the offender (name provided). Although the two applications specify a different range of dates I have no doubt that this difference arises out of a significant uncertainty as to the commencement of the abuse. The abuse was first disclosed in May 1994 that there is really no evidence as to when it commenced. I suspect that the first solicitors erred on the side of caution when they selected 1993 as the commencing date and I suspect that the current solicitors simply took a more liberal approach when they selected 1989. Certainly I have not been able to identify any specific evidence of abuse in 1989, 1990, 1991 or 1992 and the Tribunal has not been provided with any statement from the applicant describing incidents occurring at any particular time.

I am of the view that the two applications are fundamentally duplicitous. Certainly I have no jurisdiction to consider again the possibility of an act of violence occurring in 1993 or 1994 as this timeframe has been specifically considered by the assessor in filed 61369. Because I have formed the view that both applications really refer to the same course of abuse, merely described in different terms, I probably also do not clearly have jurisdiction to consider the possibility of an act of violence occurring prior to 1993. Nevertheless, I have carefully considered all of the evidence provided to the Tribunal I consider that it is entirely possible that this applicant was sexually assaulted by her Foster Mother’s boyfriend as claimed. However, I find that the evidence before me does not establish, on the balance of probabilities, an act of violence occurring prior to 1993.

I would therefore dismiss this application even if I were not otherwise satisfied that it was a duplicate of the previously considered a claim (61369).

This file has been on foot since January 2003 and leave to apply out of time was granted. There was an unfortunate delay before the related file was identified. I am therefore prepared to make an award of scale professional costs in the sum of $825 (including GST).

10. CTC’s solicitors did not lodge an appeal against the assessor’s decision pursuant to s 36 of the old Act.

Third Application

11. On 18 September 2014, CTC lodged an application for victims support under the new Act. This alleged that she was the primary victim of an act of violence in the nature of a series of indecent assaults, which occurred between 1993 and 1994, and which were perpetrated by a different offender (name provided) at (location provided) and that the facts were reported to New South Wales police on 26 May 1994.

12. CTC was legally represented by Aboriginal Family Violence Prevention & Legal Service in relation to this application.

13. On 7 May 2015, an assessor (client claims) determined the application, found that an act of violence was established and approved a category C recognition payment to CTC.

Fourth Application

14. On 18 September 2014, CTC lodged her current application for victims support under the new Act. This alleged that she was the primary victim of a series of indecent assaults that occurred between 1 January 1993 and 5 May 1994 and that these were perpetrated by her stepfather at (location provided). It indicated that these offences were reported to New South Wales police on 6 May 1994 and claimed a category B recognition payment.

15. CTC was legally represented by Aboriginal Family Violence Prevention & Legal Service in relation to this application.

16. On 6 May 2015, an assessor (client claims) determined that this application was a duplicate of the application made under the old Act (file number 61369) and dismissed the application pursuant to Sch 2 Part 2 Cl 21 of the new Act. The following reasons were provided:

3. According to the application form, during the period from 1st January 1993 to 5th May 1994, the applicant was a victim and sustained injury as the result of sexual abuse, committed by the alleged offender, her stepfather, at the aboriginal mission in (location provided).

4. I have considered the evidence and decision on file number 61369 that is the related claim. In claims 61369, a determination was made on the 9th of February 2001 and the applicant’s application was dismissed. I note that the decision was based on the same acts of violence that occurred during 1993 and 1994 and were the same offender is specified in the current claim.

5. Pursuant to Schedule 2 Part 2 Clause 21, the determination made before the commencement of the current Act continues to have an effect.

6. I am satisfied that this current claim is a duplicate of file number 61369, noting the same time period, act of violence and same specified offender. As I am satisfied a claim has already been determined under the repealed Act, the current claim to 211141 must be dismissed.

17. On 21 July 2015, CTC’s solicitors requested an internal review of the assessor’s decision and they lodged detailed submissions. I have summarised these follows:

1. The assessor erred in concluding that the current application is a duplicate of the first application as:

1. It was not “an identical copy” (the definition of “duplicate” found in the Oxford Dictionary) of that application, because: the time period of the offending is not the same; the first application was lodged by CTC’s Foster Mother and the current application was lodged by CTC herself; and new evidence has been submitted in support of the current application;

2. CTC was a child when the first application was lodged and she had no independent ability to provide the evidence needed to support it. Her Foster Mother was “…not sufficiently concerned about the welfare of the applicant in lodging the first claim she did not seek to provide sufficient evidence for the first claim to be successful, nor did she seek to review or appeal the decision on behalf of the applicant”; and

3. The current application includes evidence that was not available to the assessor of the first application and it now satisfies the requirements for documentary evidence verifying that CTC suffered injury as a result of the acts of violence. As a result, there is no basis on which the decision maker could conclude that the current application is a duplicate of the first application.

2. Even if the current application is found to be a duplicate of the first application, cl 21 (2) of sch 2 of the new Act (“the general savings provision”) does not compel the dismissal of the current application because:

1. the decision to dismiss the first application was made under an entirely different legislative scheme and could not have been made under the new Act; and

2. even if the decision to dismiss the first application continues to have effect, the general savings provision is “subject to any express provision” of the new Act pursuant to cl 21 (2) of sch 2, which would include cl 6 of sch 2 of the new Act.

3. The decision to dismiss the first application is not something that could have been “done, initiated or completed” under the new Act for the purposes of the general savings provision because the first application and the subsequent decision related to the framework provided by the old Act. The current scheme is an entirely new scheme that is intended to replace, rather than modify, the scheme under the old Act. A claim made under the old act is something that could not possibly have been “done, initiated or completed” under the completely new Victims Support Scheme.

4. If it is found that the decision to dismiss the first application is something that could have been “done, initiated or completed” under the new Act, CTC submits that the general savings provision is subject to cl 6 of sch 2 of the new Act, which provides:

No victims support payable under both repealed Act and this Act

Victims support is not payable under this Act to a primary victim, secondary victim or family victim of an act of violence if the victim has already been awarded compensation or assistance under the repealed Act.

5. CTC has not been awarded any compensation or assistance under the old Act and is therefore not expressly precluded from being paid victims support under the new Act. Further, if the legislative intent were to preclude CTC from being paid victims support, fish should be reflected in cl 6 of sch 2.

6. Both the old act and the new act are widely accepted as having remedial and beneficial objectives and should be interpreted “in favour of the grant of benefits to the claimant” (see: Harvey v Victims Compensation Tribunal [2001] NSWDC 604 at [41]).

7. The intent of the new act was to provide faster and more effective support to victims of violent crimes (see: Second Reading Speech of the Victims Rights and Support Bill dated 7 May 2013). The new act is also clearly intended to perpetuate the beneficial nature in its intention to provide assistance to victims of crime and therefore a beneficial a Liberal interpretation is required. Such an interpretation would result in the “utmost relief” to be afforded to CTC, which would be an award of a recognition payment of $10,000.

18. On 14 August 2015, the Senior Assessor issued a Notice of Deferral in relation to the request for review, and determined (relevantly):

It would appear on the evidence before me and after reading clause 11; the act of violence has been dealt with under the repealed act and therefore cannot be considered again.

19. The Senior Assessor invited CTC’s solicitors to make further submissions regarding cl 11 of part 2 of sch 2 of the New Act.

20. On 18 October 2015, CTC’s solicitors lodged further submissions, as follows:

Clause 11 of Schedule 2 says:

11 Previous acts of violence

Subject to this Act, this Act extends to an act of violence that occurred before the introduction day (other than an act of violence in respect of which an application for compensation has been made and dealt with under the repealed Act).

The act of violence in the current claim has not been dealt with under the repealed Act.

…The applicant has previously made submissions outlining the differences between the previous claims in the current claim. One material difference is the new evidence submitted in support of the current claim…

(This further evidence) is primary documentary evidence under section 39 of the act, and no evidence of a psychological injury alleged in the first claim for the second claim. As a result of the new evidence the applicant’s injury alleged in the current claim is different to that alleged in the previous claims.

In the previous claims, the injury alleged by the applicant was actual bodily harm. The first claim did not contain documentary evidence verifying that the applicant sustained injury as a result of the act of violence. In both the first claim and the second claim, the applicant was asked whether she was claiming or had claimed for psychological or psychiatric disorder. In both applications, the applicant (or the applicant’s foster mother, applying on her behalf) has responded “No”.

By contrast in the current claim, the applicant has adduced documentary evidence of a different injury, being psychological harm.

The applicant submits that because the first claim and the second claim alleged physical injury in the current claim alleges psychological injury, the “act of violence” complained of in the current claim is different to that which was alleged in the previous claims.

To conclude that the acts of violence alleged in the first claim and a second claim are the same as that which is the subject of the current claim be inaccurate as one of the essential elements of the act of violence is materially different.

As a matter of logic, if any act of violence was “dealt with” under the repealed Act in the first claim and the second claim, this act of violence was materially different from the act of violence in the current claim. The act of violence in the current claim, alleging psychological harm, has not been “dealt with” under the repealed act for the purposes of clause 11.

Clause 11 to be read subject to the Act

If, despite the difference in essential elements, the act of violence in the current claim is found to be the same act of violence referred to in the previous claims, clause 11 does not preclude the applicant from recovering victims support.

As clause 11 begins with the words “subject to this Act”, the clause anticipates interaction with other sections of the Act, and should therefore be read “subject to” clause 6 in schedule 2 of the Act.

Prima facie, clause 11, when read alongside clause 6, appears to be incongruous. Clause 11 provides that an applicant will be denied victims support if the application has been “dealt with” under the repealed Act, but clause 6 (in apparently exhaustive terms) provides that an applicant will be denied victims support the victim has “already been awarded compensation or assistance under the repealed Act”.

Clause 6 to is not mirror clause 11 in precluding claims act of violence “dealt with” under the repealed Act. Rather, clause 6 adopts precise language and specifically denies relief were compensation or assistance has already been received. The differing language suggests an inconsistency between clause 11 and clause 6, which is anticipated and addressed by the words “subject to this Act” at the beginning of clause 11.

Clause 11 should be read subject to the Act, and specifically clause 6, which does not prevent applicants who have not received compensation or assistance from receiving victims support under the Ac. The applicant submits that the words “dealt with” in clause 11 should be construed to refer to instances in which an applicant has “already been awarded compensation or assistance”. Such an approach promotes accord and consistency between clause 11 and clause 6, and is in confluence with the view that victims support legislation should be interpreted “in favour of the grant of benefits to the claimant” (see: Harvey).

The applicant submits that Justice McHugh’s reasoning in Newcrest Mining (WA) and Another v Commonwealth of Australia and Another (1997) 147 ALR 42 is of assistance in interpreting clause 11:

The purpose of the phrase “subject to” in such a context is to establish what is dominant and what is subordinate or subservient; that to which provision is “subject” is dominant - in case of conflict it prevails over that which is subject to it.

Where there is no inconsistency, the words “subject to” are of no consequence. However, where a conflict exists, the use of the words “subject to” indicates subservience to other prevailing provisions of the act or the act generally (see: C & J Clark Ltd v IRC [1973] WLR 905 at 911).

In light of this approach, the applicant submits that clause 11 is subordinate to the unqualified clause 6, which does not preclude the applicant’s recovery of victim support.

Such an understanding of clause 11 promotes the beneficial and remedial nature of the Act which requires that the utmost relief be afforded to applicants. This reading also upholds the principle of statutory interpretation providing that, where an Act grants a benefit, the Act should be “construed generously to ensure that… the person is not denied the promised benefit”.

21. On 8 December 2015, the senior assessor published a Notice of Review Decision and determined that pursuant to cl 11 of sch 2 of the new Act, the current claim had been “dealt with” under the old Act. The application for victims support was dismissed for the following reasons (relevantly):

Does the new Act extend to an act of violence dealt with under the repealed Act?

24. I have adopted a different view to that of (CTC’s) representative in the operation of clause 6 and clause 11 of schedule 2 to finalise the applicant’s claim…

26. Clause 11 extends to an act of violence that predates the introduction day of the new Act. I take the view, clause 11 does not extend to an act of violence in respect of which an application for compensation has been made and dealt with under the repealed Act…

28. Clause 5 provides that victims who applied under the repealed Act for statutory compensation and his applications were not finally determined before the introduction date, where eligible for victims support under “transitional” arrangements…

29. Read literally, clause 5, subclause one provides that applicants whose applications to statutory compensation were dealt with under the repealed Act but not “finally determined”, was still be entitled to payments under the “transitional arrangements”. This extended to those applications were appeal rights were still available (sub-clause 2) ...

31. Clause 6 refers to a class of victims to whom victims support is not payable, namely, victims who have been “awarded compensation assistance under the repealed Act”. It seems that, at least one purpose is to prevent an applicant from being paid statutory compensation under the repealed Act as well is transitional victims support under clause 5 schedule 2 of the new Act.

32. Whilst clause 11 and clause 62 overlapping the classes of claim, they deal with different subject matter. Clause 11 deals in circumstances in which an act of violence comes within the ambit of the new Act whereas clause 6 deals with the circumstances under which victims support is payable.

33. On this basis, I have reached the conclusion that clause 11 prevents an act of violence which has already been dealt with under the repealed Act from being considered in a further application for victims support.

Has this act of violence been “dealt with” under the repealed Act?

34. In submissions dated 25 July 2015, (CTC’s representative) says that to conclude that the act of violence alleged in the first and second claim is the same as the subject in the current claim would be inaccurate as one of the elements of the act of violence is “materially different”. This submission is based on the injury alleged in the current claim being “psychological” rather than physical, as alleged in the first and second claim.

35. I have considered the first and second application forms and it is apparent that “psychological and/or psychiatric injury” was not marked as the claimed injury. Rather, the applicant had nominated sexual assault categories of injury. The representative differentiates in submissions between the physical injuries claimed in the first and second applications and the psychological injury claimed in the current claim.

36. While the compensable injury claimed as a result of the violent act is different, the substance of the current claim is the same as the first and second claims. The commission of the offence (section 19(1)(a)) and the violent conduct (section 19(1)(b)) involved alleged sexual assault by the alleged offender (the applicant’s stepfather) at (location provided) during the period between 1 January 1993 to 31 December 1994.

37. The applicant had nominated on the first and second claims for “category 2– sexual assault” and “category 3 - sexual assault” as the “compensable injury” claimed. A nomination of these categories under the repealed Act considers all injuries arising from the sexual assault offence. This would encompass both physical and psychological injury arising from the act of violence.

38. I am inclined to find that for this reason, the act of violence alleged in the earlier claims, is not “materially different” from the current claim as submitted by the representative. The broad sexual assault categories claim by the applicant at the time of the first and second applications were indicative of considering all injuries arising from the alleged act of violence.

39. Therefore, I am satisfied the evidence before me confirms that the act of violence has been previously “dealt with” by an assessor on two previous occasions before the lodgement of the current claim.

40. Regrettably, the application for victims support is dismissed.

Application for Administrative Review

22. On 5 October 2016, CTC applied for administrative review of the Senior Assessor’s decision on the following grounds:

1. The Senior Assessor was in error as follows:

(a) by not finding that the Applicant was entitled to victims support under the Victims Rights and Support Act 2012 (NSW); and

(b) by finding that the act of violence had previously been ‘dealt with’ under the Victims Rights and Rehabilitation Act 1996 (NSW), pursuant to clause 11 of Schedule 2.

2. The Applicant relies on the Submissions dated 21 July 2015 that she filed in support of her request for an internal review and the further submissions dated 6 October 2015 filed in response to the Notice of Review Deferral.

23. The application for administrative review was filed late and the application indicated the following reasons for this:

I did not cope psychologically with the decision and I did not understand it. I continued to experience significant anxiety, suicidal thoughts and social isolation as a result of my childhood sexual abuse from my stepfather. As well is taking prescription medication, I also returned to using illicit methamphetamines. I did not know that there was a time limit to making this application and I was not well enough to seek legal advice. I need legal recognition of the childhood sexual abuse that I experienced from my stepfather before I can ever move forward. I think that there is a public interest in determining this matter as I was encouraged by victims services to make my application under the new law, as the law was ambiguous.

24. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘the ADR Act’), which provides:

(1)  In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

25. The Application for Administrative Review came before Senior Member McAteer for Directions on 3 February 2017, when Ms Avers appeared for CTC (by telephone) and the Commissioner was represented by Mr Singh. The documents provided by the Commissioner under s 58 of the ADR Act appeared to be comprehensive and complete. The Commissioner also lodged written submissions in response to the current application.

26. I confirm that on 3 February 2017, Senior Member McAteer made the following orders:

1. Pursuant to s 41 (1) of the Civil and Administrative Tribunal Act (“the CAT Act”) I extend the time for lodging the Application to 5 October 2016.

2. Applicant to file and serve any submissions in reply (if any) on or before 1 March 2017.

3. The matter is to be determined by a Tribunal Member on the papers after 1 March 2017.

27. However, no submissions in Reply were filed on behalf of CTC.

Dispensing with the need for a hearing

28. Section 50 of the CAT Act provides (relevantly):

50   When hearings are required

(1)  A hearing is required for proceedings in the Tribunal except:

(a)  in proceedings for the granting of leave for an external or internal appeal, or

(b)  in connection with the use of any resolution processes in proceedings, or

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

(d)  in such other circumstances as may be prescribed by the procedural rules.

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules…

29. I am satisfied that the requirements of s 50 of the CAT Act have been satisfied and that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. I dispense with the need for a hearing.

Issues of Statutory Interpretation

30. CTC’s submissions have been set out previously in this decision.

Commissioner’s Submissions

31. The Commissioner submitted that there are three substantive issues that require determination, namely:

1. Does cl 11 of sch 2 of the new Act prohibit CTC from making the fourth application in light of the first and second applications?

2. Does the new Act revive CTC’s rights and make a further application?

3. Was the act of violence the subject of the fourth application made and dealt with under the old Act?

32. I have summarised the Commissioner’s submissions in relation to these substantive issues as follows:

Issue 1

Both the first application and the second application were finally determined under the old Act and neither was the subject of the transitional provisions of the new Act.

Cl 11 of sch 2 of the new Act is set out in unequivocal in clear terms. It allows victims of acts of violence that occurred prior to the introduction of the new Act (7 May 2013) to apply the victims support under the new Act but only if the act of violence had not been the subject of a claim under the old Act. It expressly excludes acts of violence that have been made and dealt with under the old Act.

The reference to “Subject to this act” at the beginning of cl 11 was to assist and preserve those claims were an applicant had a right of appeal at the time of the introduction of the new Act, which would otherwise be lost by operation of cl 11. Regulation 16 (1) of the Victims Rights and Support Regulation 2013 (Regulations) preserves the right of appeal.

Issue 2

Regard ought to be had to the Interpretation Act 1987 for the purposes of interpreting legislation except in so far as the contrary intention appears in either the Interpretation Act 1987 or in the Act or instrument concerned (see: s 5 (2)).

Part 4 of the Interpretation Act 1987 deals with amendments and repeals. S 30 (1) (a) of that Act provides that an amendment or repeal of an Act or statutory rule “does not provide anything not in force existing at the time at which the amendment or repeal takes effect”.

Section 23 (1A) of the old Act provided:

23   Eligibility to receive compensation in respect of same act of violence

…(1A) If a person’s application for statutory compensation in respect of an act of violence has been finally determined by the dismissal of the application, the person is not eligible to receive an award of statutory compensation by means of a further application that is made:

(a)  in respect of the same act of violence, and

(b)  in the same capacity of primary victim, secondary victim or family victim.

Having regard to S 23 (1A) of the old Act, the clear intention of the legislature was to ensure that duplicate applications were not made with respect to the same act of violence even in instances where the application was dismissed. S 23 was an acted on 7 December 2010 pursuant to the Courts and Crimes Legislation Further Amendment Act 2010. The Explanatory Notes indicate the purpose of S 23 was “to clarify that, if a person’s application for statutory compensation has been dismissed, the person cannot apply for and be awarded the same kind of statutory compensation in respect of the same act of violence”.

At the time of the old Act was repealed, by reference to S 23 (and assuming that the application was properly made), CTC was unable to make a further application for statutory compensation with respect to the act of violence the subject of the first application and second application. Those applications had been finally determined by the dismissals on ninth every 2001 and 22 January 2004, respectively.

In light of s 30 (1) (a) of the Interpretation Act 1987, unless a contrary intention is expressed in the new Act, the repeal of the old Act does not automatically revive or create a right in favour of CTC to make a further claim with respect to the same act of violence. The new Act does not expressly create such a right.

In further considering whether the new Act intended to create such a right, the reference can also be had to the language and purpose of all of the provisions of the new Act. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255, Brennan CJ approved such an approach:

The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all provisions of the statute.

• In Bropho v Western Australia [1990] HCA 24, a case concerned with the appropriate test for determining whether an Act was intended to bind the Crown, the High Court considered the rule of statutory construction on that matter and added:

One can point to other ‘rules of construction’ which require clear and unambiguous words before a statutory provision will be construed as displaying the legislative intent to achieve a particular result. Examples of such ‘rules’ are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively, which would deprive a superior court of power to prevent an unauthorised assumption of jurisdiction or which would take away property without compensation. The rationale of all such rules lies in an assumption that the legislature award, if it intended to achieve the particular effect, had made its intention in that regard unambiguously clear.

• S 33 of the Interpretation Act 1987 provides:

In the interpretation of the provision of an Act or statutory rule, a construction that would promote the purpose object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule, or in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

• S 34 (1) (a) of the Interpretation Act 1987 provides:

In the interpretation of the provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) To confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule in the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made).

• Having regard to s 34 (2) of the Interpretation Act 1987, the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(e) Any explanatory note or memorandum relating to the Bill of the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) The speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House.

• Cl 6 of Sch 2 of the new Act expressly stipulates that victims support is not payable under the new Act to a primary victim, secondary victim or family victim of an act of violence if the victim has already been awarded compensation or assistance under the old Act. In conjunction with s 44 (4) of the new Act and the mandatory conditions for the approval of victims support set out in s 48 (2) of the new Act, it is clear that the intention of the current act is to ensure that there is no “double dipping” in the approval of victims support.

• The Second Reading Speech relating to the Victims Rights and Support Bill 2013 provides an insight into the purpose of the new Act:

The purpose of the Bill is to establish a new Victims Support Scheme to replace the existing Victims Compensation Scheme.

• The reason for the replacement of the former Scheme was said to be due to protracted delays the victims and receiving compensation. A review of the scheme was carried out to “give an independent assessment of how it could be improved”. The speech concluded:

The Victims Compensation Scheme will be closed immediately. All existing claims that have not yet been finalised be transferred to the Victims Support Scheme. This will provide a speedy resolution for victims with existing claims.

• However, the Second Reading Speech does not suggest that the new Act was enacted with the intention of creating new rights in individuals who had their applications finally determined under the old Act. The purpose was to replace the existing scheme in order to create a more efficient, streamlined process for new applications. An interpretation of the new Act that allows applicants whose applications were dismissed under the old Act (and indeed even under the initial Victims Compensation Act 1987) to make further claims is inconsistent with the purpose of the new Act. Such an approach would open the floodgates for all applicants whose applications were dismissed under the old Act or the Victims Compensation Act 1987.

Issue 3

• Cl 11 of Sch 2 of the new Act seeks to preclude those claims that were made and dealt with under the old Act.

• CTC submits that the act of violence that was the subject of the fourth application was previously “made and dealt with” on the basis that the injury claimed in it (psychological injury) differs to the injury claimed in the first and second applications (physical injury). However, the Commissioner disputes this submission on the basis that the “act of violence” as defined by s 19 of the new Act (and also by s 5 of the old Act) refers to an act that has “apparently occurred”. This infers that a specific act(s) has occurred during a specific time period and at a specific place, which must (of itself) have resulted in either injury to, or the death of, the victim. The fact that an act has resulted that more than one type of injury does not cause there to have been more than one act of violence. As long as there is an injury, an act of violence has occurred and a subsequent injury or an injury that the applicant may not have been aware of does not create a further act of violence

Consideration

33. The Tribunal recently considered the statutory construction of the statutory provisions that are the subject of the current application in CTK v Commissioner of Victims Rights [2017] NSWCATAD 105. I note that the Commissioner’s written submissions in that matter are very similar to those filed in relation to the current matter.

34. In CTK, the applicant’s mother lodged an Application for Compensation under old Act on his behalf. However, shortly after this was lodged the applicant was made a Ward of the State and he remained a Ward of the State when that application was determined by an Assessor. The Assessor dismissed the application essentially for lack of evidence and no appeal was lodged under the old Act. CTK then lodged an application for victims support under the new Act in relation to the same act of violence. The application was dismissed by an Assessor on the basis that the act of violence was the subject of an application that was made and determined under the old Act and cl 11 of sch 2 precluded him from making a fresh claim under the new Act. He lodged an Application for Administrative Review.

35. In CTK, the Tribunal concluded that the application for compensation under the old Act had not been properly made and determined under the old Act, essentially because the applicant was a Ward of the State when the application was capable of being determined and was determined and his mother lacked the capacity to litigate that application on his behalf by reason of the Wardship Order.

36. However, the current matter is distinguishable from CTK as the first application for compensation was lodged by CTC’s Foster Mother pursuant to a Guardianship Order that was made by the Local Court of NSW. While I note the submission to the effect that her Foster Mother was not sufficiently interested in the proceedings to ensure that sufficient evidence was obtained in support of the application, the requirements for capacity to lodge an application for compensation were set out in s 25 (1) of the old Act, as follows:

Lodging of applications

(1)  An application for statutory compensation may be made:

(a)  by a primary victim, secondary victim or family victim of an act of violence, or

(b)  by any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim.

37. In my view, the fact that a Guardianship Order was made in favour of CTC’s Foster Mother before the application for compensation was lodged is sufficient to satisfy the “genuine interest” requirement of s 25 (1) (b) of the old Act. It follows that the application was properly made under the old Act.

38. While the Commissioner’s written submissions use the phrase “made and dealt with”, the relevant test is “made and determined”. In the current matter, the available evidence clearly indicates that the first application was “determined” under the old Act.

39. This Tribunal has no jurisdiction to conduct an administrative review of any decision made by an Assessor under the provisions of the old Act.

40. While it is unfortunate that CTC’s Foster Mother did not seek to appeal the Assessor’s decision in relation to the first application pursuant to s 36 of the old Act, the fact that CTC later obtained further evidence that supports the occurrence of the act of violence that was the subject of that application and suggests that she suffered a psychological injury (rather than a physical injury) as a result, does not give rise to any further entitlement to claim victims support under the new Act.

41. In order to establish an act of violence under s 19 of the new Act, CTC must establish on the balance of probabilities that she was the victim of 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.

42. All three (3) requirements must be satisfied to establish an act of violence. Unfortunately for CTC, the events described as resulting in her injuries in the first application and the fourth application are essentially the same. As a result, no new act of violence has been established and CTC has no entitlement to victims support under the new Act with respect to the subject act of violence.

43. Pursuant to s 63 (3) (a) of the Administrative Decisions Review Act 1997, I affirm the decision of the Senior Assessor dated 8 December 2015.

Orders

44. I make the following orders:

1. The decision of the Senior Assessor dated 8 December 2015 is affirmed.**********

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: 13 April 2017