DRJ v Commissioner of Victims Rights; DRK v Commissioner of Victims Rights; DRL v Commissioner of Victims Rights; DRM v Commissioner of Victims Rights; DRN v Commissioner of Victims Rights

[2019] NSWCATAD 195

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DRJ v Commissioner of Victims Rights; DRK v Commissioner of Victims Rights; DRL v Commissioner of Victims Rights; DRM v Commissioner of Victims Rights; DRN v Commissioner of Victims Rights [2019] NSWCATAD 195

Hearing dates:

14 June 2019

Date of orders:

20 September 2019

Decision date:

20 September 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Cole DCJ, Deputy President

Decision:

1. The applications are dismissed.
2. The decision of the Commissioner for Victims Rights, by her delegate, Senior Assessor Baker, in relation to the applicants’ applications, is affirmed.
3. The publication of the names of each of the applicants together with any evidence provided to the Tribunal tending to identify any of the applicants is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

ADMINISTRATIVE LAW – Victim support – jurisdiction

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Australia Act 1986 (Cth)
Charter of the United Nations Act 1945 (Cth)
Children and Young Persons (Care and Protection) Act 1998
Constitution Act 1902 (NSW)
Crime Commission Act 2012 (NSW).
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Interest Reduction Act 1931 (NSW)
Interpretation Act 1987 (NSW)
Victims Rights and Support Act 2013 (NSW)

Cases Cited:

Blue Metal Industries v Dilley (1969) 117 CLR 651
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
CIC Insurance v Bankstown Football Club (1997) 187 CLR 384
Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503
D151 v New South Wales Crime Commission (2017) 94 NSWLR 738
Lacey v Attorney-General of Queensland (2001) 242 CLR 573
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Re Tracey (2011) 80 NSWLR 261
SAS Trustee Corporation v Miles (2018) 361 ALR 206
Wanganui-Rangitikei Electric Power Board v Australian Provident Society (1934) 50 CLR 581
Waugh v Kippen (1986) 160 CLR 156

Texts Cited:

NSW Department of Attorney General and Justice, PricewaterhouseCoopers (PwC), Review of the Victims Compensation Fund, (July 2012)
United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, (November 1985)
United Nations, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, (December 2005)

Category:

Principal judgment

Parties:

Proceedings 2018/398411:
DRJ (Applicant)
Commissioner of Victims Rights (Respondent)

Proceedings 2018/398418:
DRK (Applicant)
Commissioner of Victims Rights (Respondent)

Proceedings 2018/398420:
DRL (Applicant)
Commissioner of Victims Rights (Respondent)

Proceedings 2018/398422:
DRM (Applicant)
Commissioner of Victims Rights (Respondent)

Proceedings 2018/398424:
DRN (Applicant)    
Commissioner of Victims Rights (Respondent)

Representation:

Counsel:
Proceedings 2018/398411; 2018/398418; 2018/398420; 2018/398422; 2018/398424
K Eastman SC (Applicants)
J Emmett (Respondent)

  Solicitors:
Hogan Lovells (Applicants)
Crown Solicitor NSW (Respondent)

File Number(s):

2018/00398411; 2018/00398418; 2018/00398420; 2018/00398422; 2018/00398424

Publication restriction:

The publication of the names of each of the applicants together with any evidence provided to the Tribunal tending to identify any of the applicants is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Introduction

1. DRJ, DRK, DRL, DRM and DRN, the applicants in these proceedings, are all Yazidi women who report that they were subjected to acts of violence, abduction and trafficking between August 2014 and November 2014 in Raqqa, Syria and Northern Iraq. I will refer to the applicants collectively as “the applicants”.

2. Khaled Sharrouf, an Australian citizen, has been identified by each of the applicants as the perpetrator of some of the offences committed against them. Khaled Sharrouf has been missing and presumed dead since 2017.

3. The applicants applied for victims support under the Victims Rights and Support Act 2013 (NSW). The applicant’s applications were dismissed by the Commissioner of Victims Rights’ delegate (Assessor Duignan) at first instance. The applicants sought an internal review of that decision. The Commissioner’s delegate on the internal review (Senior Assessor Baker) also dismissed the applicants’ application for victim support. The applicants then applied to the Tribunal for review pursuant to s 51(2) of the Victims Rights and Support Act.

4. The parties have argued the threshold point of whether the Tribunal has jurisdiction in relation to the applications. This requires consideration of whether the applicants’ claims are within the purview of the Victims Rights and Support Act.

5. It has been conceded, on behalf of the applicants, that if the expression ‘act of violence’ in s 19 of the Victims Rights and Support Act is confined to an act of violence committed in New South Wales, then the applicants’ claims under the Act cannot proceed.

Facts

6. For the limited purpose of deciding the question of whether the applicants’ claims are within the purview of the Victims Rights and Support Act, the parties agreed that I should assume that the factual circumstances of each application have been accurately set out in the applicants’ written submissions. I will proceed in that way.

7. The applicant’s submissions set out the following:

8.   Specifically, the Applicants are victims of acts of violence committed between August 2014 and November 2014 in Raqqa, Syria and Northern Iraq. The acts of violence involved, inter alia, abduction and trafficking by ISIS fighters. The Applicants were kept as slaves in the home of Khaled Sharrouf (Sharrouf). He subjected each of the Applicants to degrading treatment, physical and emotional threats, attempted rape, threats of being raped, threats of being killed, being hit with a cable and attempted hitting.

9.   Sharrouf’s acts of violence constitute serious international law crimes (constituting war crimes and crimes against humanity under the Rome Statute, which has been recognised and incorporated into domestic law), including without limitation:

(a)   enslavement and trafficking within the definition of trafficking of the Protocol to Prevent, supress and Punish Trafficking in Persons, especially Women and Children (the Palermo Protocol) and contrary to Divisions 270.3 of the Criminal Code Act 1995 (Cth) (Criminal Code);

(b) crimes against humanity contrary to divisions 268.10 of the Criminal Code;

(c) torture, or cruel inhuman or degrading treatment or punishment contrary to Division 274 of Criminal Code;

(d) genocide contrary to the International Criminal Court Act 2002 (Cth)(ICCA) and Division 268.4 of the Criminal Code; and

(e)   gender based violence in conflict.

10.   Sharrouf’s acts of violence consisting of sexual assault, rape and domestic violence involve acts of the kind as prescribed in the Crimes (Domestic and Personal Violence ) Act 2007 (NSW).

11.   …

12.   …

13   The Applicants identified Sharrouf as the perpetrator of the acts of violence….

14.   Sharrouf was born in Sydney, Australia. He was resident in New South Wales. In 2005, Sharrouf was arrested for his role in a significant counterterrorism operation in Australia [sic]. Sharrouf was imprisoned and later released on parole in 2009. He resided in New South Wales until December 2013 when he departed Australia by fraudulent use of an Australian passport belonging to his brother.

15.   At the time the acts of violence occurred:

(a)   Sharrouf was an Australian citizen;

(b)   prior to December 2013, Sharrouf’s last known place of residence was New South Wales.

…

27 There appears to be no dispute that each of the Applicants have suffered an ‘injury’ as defined by s 18 of the VSRSA.

8. The applicants have never been citizens of Australia or resident in Australia.

The Constitution of NSW

9. The Constitution Act 1902 (NSW) provides, in s 5:

5   General legislative powers

The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:

Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.

10. The Australia Act 1986 (Cth) provides, in s 2(2):

It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

The Act and the application process

11. The Victims Rights and Support Act, in s 23(1), says:

23   Eligibility for support

(1)     A primary victim of an act of violence is eligible for the support under the Scheme described in section 26.

12. The applicants applied for victims support under s 38(1)(a) of the Victims Rights and Support Act, which provides:

38   Applications for victims support

(1)  An application for victims support may be made by the following:

(a)  a victim of an act of violence,

(b)  a parent, step-parent or guardian of a primary victim who is a child,

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

(2)  The application is to be made to the Commissioner in the approved form, which is to be supplied by the Commissioner free of charge.

The applicants applied for victims support as victims of an act of violence.

13. The Victims Rights and Support Act defines ‘victim of an act of violence’ and ‘an act of violence’ in ss 18 and 19 as follows:

18 Definitions

…

victim of an act of violence means a primary victim, secondary victim or family victim of the act of violence.

19   Meaning of “act of violence”

(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)(a) 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.

(3)  For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4)  Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a)  they were committed against the same person, and

(b)  in the opinion of the Tribunal or the Commissioner:

(i)  they were committed at approximately the same time, or

(ii)  they were committed over a period of time by the same person or group of persons, or

(iii)  they were, for any other reason, related to each other.

(5)  An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6)  An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7)  For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

(8)  In this Act:

sexual assault and domestic violence means any of the following:

(a) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat,

(b) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a child under the age of 16 years or with a person having a cognitive impairment (within the meaning of that Division),

(c) self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat (within the meaning of that section),

(d) sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years,

(e) participation with a child under the age of 18 years in an act of child prostitution (within the meaning of section 91C of the Crimes Act 1900) or the use of a child under the age of 18 years for the production of child abuse material (within the meaning of section 91FB of the Crimes Act 1900),

(f)  any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:

(i)  a person who is or has been married to the person who committed the offence,

(ii)  a person who is or has been a de facto partner of the person who committed the offence,

(iii)  a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,

(iv)  a person who, at the time of the offence, was living in the same household as the person who committed the offence,

(v)  a person who, at the time of the offence, was living as a long-term resident in the same residential facility as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987),

(vi)  a person who, at the time of the offence, had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who committed the offence,

(vii)  a person who is or has been a parent, guardian or step-parent of the person who committed the offence,

(viii)  a person who is or has been a child or step-child of the person who committed the offence, or some other child of whom the person is the guardian,

(ix)  a person who is or has been a brother, sister, half-brother, half-sister, step-brother or step-sister of the person who committed the offence.

14. The Victims Rights and Support Act provides, in s 26:

26   Composition of support—primary victims

(1)  The support under the Scheme for which a primary victim of an act of violence is eligible comprises the following:

(a)  approved counselling services with respect to that act of violence,

(b)  financial assistance for immediate needs up to a maximum amount in total prescribed by the regulations to cover expenses for treatment or other measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim’s safety, health or well being,

(c)  financial assistance of up to a maximum amount in total prescribed by the regulations for the economic loss suffered by the primary victim as a direct result of that act of violence of a kind described in the regulations,

(d)  if a recognition payment is payable under this Part in respect of the act of violence—that recognition payment.

(2) Financial assistance for which a primary victim of an act of violence is eligible is reduced by the total amount paid or approved for payment to the victim’s parent, step-parent or guardian under section 27 in respect of that act of violence.

15. On 1 August 2018, Assessor Duignan dismissed the applicants’ applications for victim support on the grounds that the Victims Rights and Support Act required that the act of violence of which an applicant was a victim must have taken place within the State of New South Wales in order for the Act to apply.

16. The applicants applied for the internal review of Assessor Duignan’s decision.

17. The Victims Rights and Support Act provides, in s 49(4):

An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the application for support to which the review relates was originally received.

18. Senior Assessor Baker conducted an internal review under the Act. She delivered her decision, with reasons, on 26 November 2018. Her conclusion was as follows:

22.   The act of violence occurred outside the State of New South Wales.

23.   The application for victim support must, therefore, be dismissed.

19. Victims support is defined in s 18 of the Victims Rights and Support Act:

…victims support means support in the form of approved counselling services, financial support or a recognition payment under the Act.

…

20. The Victims Rights and Support Act provides, in s 51:

51   Application to Tribunal for administrative review of decision concerning recognition payment

(1)     An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2)     An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

21. The applicants applied to the Tribunal for review of the decision of Senior Assessor Baker.

22. The Administrative Decisions Review Act 1997 (NSW) provides, in s 63:

63   Determination of administrative review by Tribunal   

(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)   set aside the decision and make a new decision in substitution for the decision.

23. The Tribunal is required to make a fresh determination with respect to the applicants’ applications. It is not a strict appeal. It is not necessary to establish that Senior Assessor Baker made errors of law. It is a merits review.

Statutory Interpretation

24. The Interpretation Act 1987 (NSW) provides:

5   Application of Act

(1)     This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act.

(2)     This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

(3)     Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument.

(4)    Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act.

(5)   This section does not authorise a statutory rule to exclude or modify the operation of Part 6 (statutory rules and certain other instruments).

(6) The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that apply to a statutory rule also apply to an environmental planning instrument.

12   References to New South Wales to be implied

(1)   In any Act or instrument:

(a)  a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b)  a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2)     In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words “New South Wales” or “of New South Wales” merely because those words form part of the body’s name or title.

25. The role of a section such as s 12 of the Interpretation Act was explained by the Privy Council in Blue Metal Industries v Dilley (1969) 117 CLR 651 at 656 in the context of a statutory provision which says that the singular includes the plural unless the contrary intention appears:

Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need by no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. (See Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-General of Hong Kong (1965) 1 WLR 62 .) In that case a test was indicated which often may be helpful. In the judgment of the Board delivered by Lord Pearce it was said:

"The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it" (1965) 1 WLR, at p 67 . (at p 656)

26. The respondent argued that ss 19 and 23 of the Victims Rights and Support Act must be interpreted in accordance with s 12(1)(b) of the Interpretation Act. The respondent relied on the authorities which follow to support its approach to the interpretation of the Victims Rights and Support Act.

27. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], the plurality of the High Court said:

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction[56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out [57]:

"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)

28. In Lacey v Attorney-General of Queensland (2001) 242 CLR 573 at [43]-[44], the High Court said:

The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. An example of a canon of construction directed to that objective and given in Project Blue Sky is "the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities". That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. As this Court said recently in Zheng v Cai:

"It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs ,the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy."

The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction. 

29. In Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39], the High Court said:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

30. In Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [26], the plurality of the High Court said:

A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

"Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case." (emphasis added)

And as the plurality said in Australian Education Union v Department of Education and Children's Services:

"In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose." (footnote omitted)

31. In SAS Trustee Corporation v Miles (2018) 361 ALR 206 at [64], Edelman J said:

The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it will be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense".

32. The respondent argued that the consequences of competing constructions are relevant to the task of interpretation of the Act, including such considerations as the inconvenience and improbability of the Parliament intending a particular interpretation (see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and [97] and CIC Insurance v Bankstown Football Club (1997) 187 CLR 384 at 408. The respondent said that, if the Victims Rights and Support Act were to apply to acts of violence committed outside of NSW and to offences other than offences under NSW law, the breadth of the operation of the Victims Rights and Support Act would be enormous, potentially encompassing victims of crime in other States and Territories of Australia and the world at large, with little or no connection to NSW. The respondent argued that there was no basis in the Victims Rights and Support Act, or in precedent, or in the general law, for creating a special nexus of the kind argued for on behalf of the applicants.

33. The applicants submitted that, in considering the financial implications of giving access to the Victim Support Scheme to victims of crimes committed overseas, the Commissioner’s delegate took an irrelevant consideration into account. This is a mischaracterisation of the relevance of the issue of financial impact. It can be taken into account as part of the exercise of statutory construction. The second reading speech and the report from PricewaterhouseCoopers which the government relied upon in formulating the relevant scheme, which are discussed in detail below, both make it clear that financial considerations were relevant to the formulation of the scheme. It is relevant to the interpretation of the Victims Rights and Support Act to consider Parliament’s intention with respect to the sustainable management of the fund.

34. The Victims Rights and Support Act provides for the funding of victim support payments, to some extent, by levies, fines and other contributions from offenders, and from the proceeds of crime or criminal assets recovered within NSW (see ss 15, 16 and Parts 5 and 7 of the Act). Overseas offenders are unlikely to contribute, or to be able to be compelled to contribute. The respondent argued that the Act operates coherently when it is understood to apply to NSW offences committed in NSW, and less coherently in any other circumstances.

35. The respondent contended that it was necessary to apply s 12(1)(b) of the Interpretation Act to the Victims Rights and Support Act consistently, so that, if it was accepted that the ‘act of violence’ must have occurred in New South Wales, it must also be accepted that the offence referred to in s 19(1)(a) is an offence against the law of New South Wales, and vice versa. The respondent referred to Waugh v Kippen (1986) 160 CLR 156 at 165 in which it was said that “the legislature cannot speak with a forked tongue”. I accept this contention.

36. To summarise, the objective of an exercise in statutory interpretation is to discern the meaning that the legislature is taken to have intended the words of a statute to have. The exercise begins with the consideration of the text of the statute. The exercise must include the due consideration of relevant matters drawn from the context of the legislation, including the legislative history and relevant extrinsic materials, although these things cannot displace the meaning of the statutory text. It is relevant to consider whether Parliament is likely to have intended an interpretation which gives rise to inconvenience. Common law and statutory rules of construction must be applied. No assumptions should be made about the purpose of a statute. The purpose is to be derived from what the statute says, in its context. A court must not construct policy and impute it to the legislature and characterise it as a statutory purpose.

Extrinsic Material

37. The Interpretation Act provides, in s 34:

34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)  In the interpretation of a 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 and 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), or

(b)  to determine the meaning of the provision:

(i)  if the provision is ambiguous or obscure, or

(ii)  if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and 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) leads to a result that is manifestly absurd or is unreasonable.

(2)  Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a)  all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b)  any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c)  any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d)  any treaty or other international agreement that is referred to in the Act,

(e)  any explanatory note or memorandum relating to the Bill for 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,

(g)  any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h)  any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3)  In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a)  the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and 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), and

(b)  the need to avoid prolonging legal or other proceedings without compensating advantage.

38. The respondent referred to the second reading speeches introducing the Victims Rights and Support Bill 2013. Upon the first reading of the Bill in the Legislative Assembly on 7 May 2013, the Hon Bradley Hazzard, on behalf of the Attorney General, said:

The Attorney General commissioned PricewaterhouseCoopers, or PwC, to review the Victims Compensation Scheme and give an independent assessment of how it could be improved to provide faster and more efficient support to victims of violent crime.

…

It is my great pleasure on behalf of the Attorney General to announce today that the Government has adopted PricewaterhouseCoopers’ recommendations. We acknowledge that the Victims Compensation Scheme needed to be replaced with something more effective. This Bill does just that. It establishes the new Victims Support Scheme, which is modelled very closely on the scheme proposed by PricewaterhouseCoopers.

39. In the Legislative Council, on 29 May 2013, upon the second reading of the Bill, the Hon Michael Gallacher said:

The Victims Compensation Scheme was established in 1987 and revamped in 1996.

But, by mid-2010, the Victims Compensation Scheme that was meant to help victims of violent crime was crippled by a growth in demand that had almost doubled in the previous five years. This led not only to cost blowouts but to protracted delays for victims in receiving compensation. The Auditor General identified from 2009 that the then Government needed to take action to deal with the backlog of claims.

…

It is my great pleasure today to announce that the Government has adopted PricewaterhouseCoopers’ recommendations. We acknowledge that the Victims Compensation Scheme needed to be replaced with something more effective. This bill does that – it establishes the new Victims Support Scheme which is modelled very closely on the scheme proposed by PricewaterhouseCoopers.

40. It is clear that these statements may be used in the interpretation of the Victims Rights and Support Act.

41. The Tribunal was provided with the 2012 report of PricewaterhouseCoopers (PwC) entitled Review of the Victims Compensation Fund (‘the PwC report), which is the document referred to in the first and second reading speeches. In that report, it was clearly stated that the Victims Compensation Scheme which was then current, was ‘financially unsustainable within current funding constraints’ (p. 3). It was also stated that ‘Each act of violence committed in NSW has the potential to result in a victims compensation claim’ (p. 26). The PwC report said that the scheme it proposed was consistent with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (‘the Declaration’) (p. 48). It is clear from the context that this assertion was made on the basis of an understanding that the Declaration speaks of the desirability of a compensation scheme for victims being provided within the jurisdiction in which the injury is sustained. The PwC report does not contemplate that the scheme it formulates will compensate a victim of a crime committed outside of New South Wales. The PwC report says the following (p. 68):

8.4.7   Coverage for victims of terrorist attacks abroad

One of the proposed changes to the UK victims compensation scheme announced in January 2012 is to include victims of terrorist attacks abroad in their scheme. The rationale for this is so that victims of terrorist attacks abroad and victims of terrorist attacks locally are treated in the same way by the compensation scheme.

We note that the South Australian scheme also allows ex gratia payments to be made to victims of terrorist attacks abroad, such as the Bali bombings.

However, we also understand the Federal Government provides assistance to Australians affected by local or international disasters through Disaster Assist. This assistance includes:

•   The Australian Government Disaster Recovery Payment – a one-off payment to assist permanent Australian residents who suffered serious injury, witnessed the devastation of the disaster, or who are one of the immediate family members of a permanent Australian resident who was a victim of the disaster

•   Funeral/Memorial Assistance to the immediate family member of a permanent Australian resident who has died as a result of the disaster

•   Support from Centrelink including crisis intervention, personal support, referral and practical assistance to affected individuals and families.

•   Other assistance specific to the circumstances, such as travel assistance and out-of-pocket health expenses

Given the comprehensive nature of the Disaster Assist program, we do not recommend the Proposed Scheme covers victims of overseas terrorist attacks.

This paragraph discusses and rejects the idea that permanent Australian residents who are victims of a terrorist attack whilst abroad might have access to the then proposed victims support scheme. The PwC report does not contemplate giving access to the victims support scheme to citizens and residents of other countries, such as the applicants.

42. The applicants argued that the PwC report was not available to be used in the interpretation of the Victims Rights and Support Act and the Interpretation Act, because it is not among the kinds of material listed in s 34(2) of the Interpretation Act. I reject that argument. The list in s 34(2) of the Interpretation Act is clearly not intended to be exhaustive, as the preamble to the list begins with the words ‘Without limiting the effect of subsection (1)’. The report is explicitly adopted in both the first reading speech and the second reading speech. The PwC report is available for use in the interpretation of the Victims Rights and Support Act.

43. The first and second reading speeches and the PwC report all support the argument of the respondent that s 12(1) of the Interpretation Act was intended to apply to the Act.

Are there references in the Victims Rights andSupport Act to a locality, jurisdiction or other matter or thing, to which s 12(1)(b) of the Interpretation Act could apply?

44. The applicants submitted, with particular reference to s 23 of the Victims Rights and Support Act, that there is no ‘reference to a locality, jurisdiction or other matter or thing’ in the Act to which s 12(1)(b) of the Interpretation Act could apply.

45. ‘Matter’ and ‘thing’ are very broad terms. The definition of ‘matter’ in the Macquarie Dictionary, 3rd edition, includes:

a thing, affair or business

something of consequence

ground, reason or cause

the matter: the trouble or difficulty

The definition of ‘matter’ in the Concise Oxford Dictionary, 3rd edition, includes:

an affair or situation being considered, especially in a specified way (a serious matter, a matter of concern, the matter of your overdraft)

what is or may be a good reason for (complaint, regret etc)

46. I reject the applicants’ submission. Eligibility for support under the Victims Rights and Support Act is based upon the applicant for support being the victim of ‘an act of violence’. The meaning of ‘an act of violence’ is set out in s 19 of the Act, which is quoted above at [13]. In order for there to have been ‘an act of violence’ under the Act, there must have been the commission of an offence, which must have involved violent conduct against one or more persons and must have resulted in injury or death to one or more of those persons. The concept of the commission of an offence is a clear reference to jurisdiction. It cannot be ascertained whether the elements of an offence have been committed unless the jurisdiction within which those elements comprise an offence has been identified. If s 12(1)(b) of the Interpretation Act is applied to s 19(1)(a) of the Victims Rights and Support Act, in accordance with s 5(1) of the Interpretation Act, the words ‘commission of an offence’ mean the commission of acts which constitute an offence ‘in and of New South Wales’. Further, violent conduct and injury each constitute a ‘matter’, within the ordinary meaning and dictionary definition of that word, so that if s 12(1)(b) of the Interpretation Act applies, violent conduct and injury occurring ‘in and of New South Wales’ are required for ‘an act of violence’ within the meaning of the Victims Rights and Support Act.

47. I note that in Wanganui-Rangitikei Electric Power Board v Australian Provident Society (1934) 50 CLR 581 at 612-613, McTiernan J dealt with an obligation to pay interest as a ‘matter’ or ‘thing’ for the purposes of s 12(1)(b) of the Interpretation Act.

48. The Victims Rights and Support Act, in s 19(1)(a), refers to an offence (as a component of ‘an act of violence’) and several ‘matters’, namely violent conduct and injury, as components of ‘an act of violence’, which is, itself, a ‘matter’.

49. On a plain reading of s 19 of the Victims Rights and Support Act with s 12(1)(b) of the Interpretation Act, the ‘act of violence’ referred to in s 19 of the Victims Rights and Support Act is a reference to an ‘act of violence’ in and of New South Wales.

Has s 12(1)(b) of the Interpretation Act been displaced by s 31(1)(b) and s 32(1) of the Victims Rights and Support Act?

50. The Victims Rights and Support Act provides, in s 31(1)(b):

31   Approved counselling services

(1)  The Commissioner may:

(a)  approve professional counsellors who may provide approved counselling services for the purposes of this Act, or

(b)  in the case of counselling services to be provided to a victim of an act of violence who is resident outside Australia—give approval for the victim to select a professional counsellor of the victim’s choice to provide the victim with approved counselling services for the purposes of this Act.

51. It was argued, on behalf of the applicants, that s 31(1)(b) evinced an intention contrary to the application of s 12(1)(b) of the Interpretation Act to s 19 and s 23 of the Victims Rights and Support Act, and that, therefore, under s 5(2) of the Interpretation Act, s 12(1)(b) of the Interpretation Act does not apply to the Victims Rights and Support Act.

52. I reject this proposition. Section 31(1)(b) of the Victims Rights and Support Act can much more obviously be taken to be addressing the circumstances of a victim of crime who left Australia after the crime was committed against them, but continued to need counselling services. There is no basis to think that it was intended to address the victim of a crime which occurred outside of Australia.

53. Section 32(1) of the Victims Rights and Support Act provides:

32   Authorisation of payments for approved counselling services

(1)  The regulations may make provision for or with respect to the authorisation of payments for or in relation to approved counselling services provided to victims of acts of violence (whether resident in Australia or elsewhere), including the application (with or without modification) of the provisions of this Act relating to financial support or recognition payments.

54. Again, in the context of the whole of the Act, the reference to a victim being resident outside of Australia covers the situation where the victim of a crime leaves Australia subsequent to the crime, but continues to need counselling.

55. These provisions, in the context of the substance and tenor of the Victims Rights and Support Act, cannot be taken to be an indication that the legislature intended to displace the operation of s 12(1)(b) of the Interpretation Act. Had the legislature intended to give the victims of crimes committed in other jurisdictions access to the New South Wales Victims Support Fund, it could easily have provided for that clearly and expressly in the Act.

The meaning of ‘in and of New South Wales’

56. With respect to the meaning of the phrase ‘in and of New South Wales’ in s 12(1)(b) of the Interpretation Act, the applicants argued as follows in paragraph 69 of their written submissions:

The expression ‘in and of’ is a composite phrase which should not be divided, and it imports both situation and a close identification with New South Wales. It is not simply a question of whether the relevant act or series of related acts occurred in New South Wales, but is a question of whether the relevant act or series of related acts are considered to be in and of New South Wales.

57. The applicants referred to the following remarks of McTiernan J in Wanganui-Rangitikei Electric Power Board v Australian Provident Society (1934) 50 CLR 581 at 612-613. His Honour was discussing whether s 5 and s 12 of the Interest Reduction Act 1931 (NSW) (repealed) applied to a loan entered into by a company incorporated in New Zealand with the AMP Society:

Sec. 5 and sec. 12 are expressed in general terms which are capable by their literal force of including the "obligation to pay interest" which is now in question. But the ambit of these sections is confined by sec. 17 of the Interpretation Act 1897, of New South Wales, which says: "Wherever in an Act any officer or office is referred to, the same shall be taken to refer to the officer or office of the description designated in and for New South Wales, and all references to localities, jurisdictions, and other matters and things shall, unless the contrary intention appears, be taken to relate to such localities, jurisdictions, and other matters and things in and of New South Wales." The matter or thing which is the object of legislative concern in secs. 5 and 12 is an obligation to pay interest. Payment is dealt with as a matter accessory to those obligations which the Legislature intended to affect. In Barcelo v. Electrolytic Zinc Co. of Australasia we were not referred to any enactment which has an effect like that of sec. 17 of the Interpretation Act of New South Wales. The phrase "in and of" imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided. But it is unnecessary in the present case to inquire whether upon any technical view the obligation to pay interest can be said to be "in" New South Wales. There is not, in my opinion, any association between the obligation to pay interest expressed by the instrument in suit and New South Wales which would justify the view that it was "in and of" New South Wales. Its only association with New South Wales is that the borrower remits the money which is necessary to discharge it from New Zealand to Sydney, where the head office of the lender is situated. This circumstance in the present case is not of sufficient weight to determine the territorial connection of the transaction, and does not detract from its complete association with New Zealand or its complete dependence on New Zealand law. The obligation cannot, in my opinion, be said to be "in and of" New South Wales. It has these characteristics:—(1) It is the creature of legislation passed in another country. (2) Its peculiar nature is determined by that legislation. (3) Its payment is secured by that legislation on "local funds" in New Zealand. (4) The legislation expressly makes it payable in or out of that country, as a debt. (5) That legislation provides for its enforcement in that country. (6) It is the obligation of a corporation rooted in that country. (7) The activities of that corporation are restricted to that country. (8) In the event of default payment can be demanded, in that country, of the obligation contained in the outstanding debentures.

58. The respondent submitted that these words could not support an argument that acts committed overseas can be ‘in and of’ New South Wales by reason of a vaguely articulated ‘sufficient degree of connection’.

59. The applicants argued that the following factors lead to the conclusion that the act of violence relied upon was an act of violence ‘in and of New South Wales’:

(a)   the series of related acts were committed against the Applicants by Sharrouf, who was at the time an Australian citizen and his last known place of residence in Australia was in New South Wales; and

(b) part of the series of related acts (and/or a causative link in relation to the series of related acts was an offence against the law of New South Wales (including but not limited to identity offences by Sharrouf under the Crimes Act 1900 (NSW).

60. I assume that the reference to ‘identity offences’ is a reference to acts which Khaled Sharrouf may have performed in the course of leaving Australia using his brother’s passport in December 2013. Khaled Sharrouf may have committed offences under Part 4AB of the Crimes Act 1900 (NSW) in the course of that exercise although, of course, he was never able to be prosecuted.

61. For the purposes of dealing with the applicants’ argument, I will assume that Khaled Sharrouf, in December 2013, left Australia using his brother’s passport and that he left from Sydney.

62. From the agreed facts set out in the applicants’ written submission and quoted in [7] above, the acts of violence relied upon by the applicants are said to have begun in August 2014. There is no sense in which any identity offences committed by Khaled Sharrouf in December 2013 were ‘committed against’ the applicants. The identity offences do not have a relevant causal nexus with the applicants or the acts of violence against them. They are simply an element of the circumstances leading to Khaled Sharrouf’s presence in the Middle East. There is no sense in which they caused any act of violence.

63. In the case cited in [57] above, McTiernan J said “The phrase ‘in and of’ imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided”. In other words, not only must the ‘locality, jurisdiction or other matter or thing’ in s 12(1)(b) of the Interpretation Act be situated within New South Wales, it must also have a close identification with New South Wales. Neither Khaled Sharrouf’s Australian citizenship, nor his identity offences, nor his residence in New South Wales prior to 2014 situate his acts against the applicants in New South Wales and nor do they create a close identification with New South Wales.

Has s 12(1)(b) of the Interpretation Act been displaced because of s 10A(2) of the Crimes Act 1900 (NSW)?

64. Section 19(3) of the Victims Rights and Support Act provides that ‘violent conduct’ extends to ‘sexual assault and domestic violence’. The meaning of ‘sexual assault and domestic violence’ is set out in s 19(8) of the Act, by reference to the Crimes Act 1900 NSW, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and other legislation of the New South Wales legislature (see [11] above).

65. In D151 v New South Wales Crime Commission (2017) 94 NSWLR 738 at [18], Basten JA said:

It may be accepted, as the applicants submitted, that the language of s 12(1)(b) is apt to restrict a reference to “an offence” in a New South Wales Act to an offence under the laws of New South Wales. However, whether that is so in relation to the Crime Commission Act depends upon the use of the term “offence” in that Act. So much is recognised by s 5(2) of the Interpretation Act which states that “this Act applies to an Act…except in so far as the contrary intention appears in this Act or in the [other] Act”. The Interpretation Act therefore provides a starting point for the inquiry, but does not dictate the answer.

66. In D151, the Court discerned a contrary intention from the provisions of the legislation under consideration, which was the Crime Commission Act 2012 (NSW). In the present matter, the respondent argued, there was no statutory or other basis for an argument that the Victims Rights and Support Act should be read as applying to criminal offences committed overseas at all, or in limited special circumstances, such as where the offender is an Australian citizen, or has, in the past, been a resident of NSW.

67. The applicants argued that the ‘assumption’ that s 12(1)(b) of the Interpretation Act applies to the Victims Rights and Support Act has been ‘displaced’.

68. The applicants put the following argument in paragraph 39 of their written submissions:

37   The Applicants submit the Senior Assessor erred in deciding that s 12(1)(b) of the Interpretation Act provides a presumption of local reference to the VRSA (Decisions at [13] to [14]).

38   Section 12(1)(b) of the Interpretation Act reflects two presumptions:

(1)   the presumption against extraterritoriality; and

(2)   the related presumption that statutes do not apply to matters that, under choice of law rules, would be governed by another law area.

The effect of these two presumptions is relevantly that the VRSA only applies to persons, things or events ‘in and of’ New South Wales.

39   The Applicants submit their particular circumstances displace these assumptions. They were victims of acts of violence perpetrated by an Australian citizen but they have no remedy under a statute of any other Australian state notwithstanding they have been subject to acts of violence contrary to Australian law which is intended to protect women in their particular circumstances. The presumption that the VRSA does not operate extraterritorially because there may be another statute or law governing the Applicants’ claim for victims support is not relevant in the present matter.

40   The issue of jurisdiction is addressed in the Crimes Act 1900, as considered in Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 247 and Smith v State of New South Wales [2016] NSWDC 55. By 10A(2) of the Crimes Act, the application of the criminal law of NSW is extended beyond the territorial limits of New South Wales “if there is the nexus required by the Part between the State and the offence”. According to s10C(2), a geographical nexus exists between NSW and the offence where (if the offence is committed wholly outside of NSW) the offence “has an effect” in New South Wales. The place in which an offence has an effect includes “(a) any place whose peace, order or good government in threatened by the offence and (b) any such place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out” (s 10B(3)). These provisions of the Crimes Act 1900 only apply to an offence committed wholly outside of New South Wales if it is an offence in the place in which it was committed or, as certainly applicable in the Applicants case, the offence constitutes “such a threat to the peace, order or good government of [NSW] that the offence warrants criminal punishment in [NSW] (s 10D(2)).

69. The Crimes Act1900 (NSW) provides, in Part 1A:

10A   Application and effect of Part

(1)  This Part applies to all offences.

(2)  This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence.

(3)  If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part.

(4)  This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction.

10B   Interpretation

(1)  For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C.

(2)  For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur.

(3)  For the purposes of this Part, the place in which an offence has an effect includes:

(a)  any place whose peace, order or good government is threatened by the offence, and

(b)  any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out.

(4)  A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998).

10C   Extension of offences if there is a geographical nexus

(1)  If:

(a)  all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and

(b)  a geographical nexus exists between the State and the offence,

the person alleged to have committed the offence is guilty of an offence against that law.

(2)  A geographical nexus exists between the State and an offence if:

(a)  the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or

(b)  the offence is committed wholly outside the State, but the offence has an effect in the State.

10D   Provisions relating to double criminality

(1)  This Part applies to an offence that is committed partly in the State and partly in another place outside the State, irrespective of whether it is also an offence in that other place.

(2)  This Part applies to an offence that is committed wholly in a place outside the State only if:

(a)  it is also an offence in that place, or

(b)  it is not also an offence in that place, but the trier of fact is satisfied that the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State.

70. It is an incorrect characterisation of s 12(1)(b) of the Interpretation Act to say that it ‘reflects two presumptions’. Section 12(1)(b) is a legislated rule of statutory construction for legislation of the New South Wales Parliament. It applies to all Acts of the New South Wales Parliament by operation of s 5(1) of the Interpretation Act, except, pursuant to s 5(2), in so far as the contrary intention appears in the Interpretation Act or in the Act being interpreted, in this case the Victims Rights and Support Act.

71. The operation of the Interpretation Act cannot be displaced by anyone’s personal circumstances, however serious.

72. Two questions arise. The first question is whether the offences upon which the applicants rely as a component of the ‘act of violence’ founding their claims under the Victims Rights and Support Act are offences to which Part 1A of the Crimes Act 1900 applies. The second question is whether, when an offence is one to which Part 1A of the Crimes Act 1900 applies, that offence also becomes an offence which is ‘in and of New South Wales’ for the purposes of the Victims Rights and Support Act.

73. As I have said, it has been agreed between the parties that the factual circumstances set out in the applicants’ written submissions, and set out at [7] above, provide the factual foundation upon which the argument as to jurisdiction is to be decided.

74. The “offence” or offences relied upon by the applicants as the component of the ‘act of violence’ or acts of violence which must be established to have occurred under s 19 and s 23 of the Victims Rights and Support Act in order for the applicants to be eligible for compensation under the Act are those set out in the applicants’ written submissions. For the purposes of considering the applicants’ argument, I will assume that the elements of an offence under the Crimes Act 1900 could be established.

75. The physical elements of the “offence” or offences relied upon occurred in Syria and Northern Iraq, both of which are geographically located in the Northern Hemisphere.

76. In order for a geographical nexus to exist between the physical elements of an offence committed outside of New South Wales and New South Wales, it must be established that the offence has an effect in New South Wales (see s 10C(2)(b) of the Crimes Act 1900).

77. The respondent submitted, in her written submissions at paragraph 22:

It may be accepted … that many NSW offences have an extended geographic operation pursuant to Part 1A of the Crimes Act 1900 (NSW). However, the applicants are not the victims of NSW offences. The alleged offences against the applicants were committed wholly outside NSW and did not have “an effect in the State” for the purposes of section 10C(2)(b). They did not threaten the peace, order or good government of any place within NSW for the purposes of section 10B(3)(a). The applicants cite no authority for the suggestion that crimes can be said to threaten the peace, order or good government of any place within NSW by reason of being sufficiently serious. Such an argument should not be accepted.

78. As I have said, it was asserted on behalf of the applicants that the offence or offences had an effect in New South Wales.

79. The applicants, in their written submission, put forward information about the reaction of the press to the treatment of the applicants. They also put forward information about a UN Resolution condemning the abuses of human rights and violations of international law by ISIL. None of this information goes to the question of whether the offence or offences relied upon has had an effect in New South Wales within the meaning of s 10B(3) of the Crimes Act 1900.

80. It was asserted, in the applicants’ written submissions, that, on 14 November 2014, the Minister for Foreign Affairs listed Khaled Sharrouf under s 15(1) of the Charter of the United Nations Act 1945 (Cth), which is a list of persons and entities who are subject to targeted financial sanctions or travel bans under Australian sanctions laws. There is nothing to suggest that this listing occurred as a response to the offence or offences against the applicants. In any event, this listing is not evidence of an effect in New South Wales of an offence committed abroad (see s 10B(3) of the Crimes Act1900 (NSW)).

81. There is simply no basis before me for the assertion that the offence or offences alleged by the applicants had an effect of the relevant kind in New South Wales.

82. The Crimes Act provides, in s 10D(2), that Part 1A applies to an offence committed wholly outside of New South Wales only if it is also an offence in the place in which it was committed or, if it is not an offence in that place, the trier of fact (on a prosecution) is satisfied that ‘the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State’.

83. In paragraph 7 of their written submissions, the applicants said:

The Yazidi genocide has been widely reported. The caliphate both condoned and positively encouraged the capture, sale, servitude and rape of women (especially those of the Yazidi minority) and this is widely evidenced (including through witness statements provided by the Applicants). Religion was used as a justification for sexual and non-sexual violence with a slave trade that is organised through multiple holding locations, markets, viewing rooms and transportation. This formed such a central part of the ideology that has been widely published internally within IS and through externally available communication channels including Islamic State of Iraq and Syria (ISIS) magazines and twitter accounts. For examples [sic]:   

(a)   Dabiq, a recognised ISIS publication, has released articles encouraging the active slave trade including in October 2014, shortly prior to the ISIS attack on the Yazidi community at Sinjar Mountain (also known as the “Sinjar Massacre”) and this shows the background to capture of the Applicants and the events they describe.

(b)   Further confirmation of the nature of the regime and acceptance of the gross violations the Applicants were subjected to is reported in a pamphlet released by the Research and Fatwa Department of IS titled “Su’al wa-Jawab fi al-Sabi wa-Riqab” (translated as “Questions and answers on taking Captives and Slaves”). This is reportedly dated October/November 2014, the period of the Applicants captivity, and printed by the IS publishing house Al-Himma Library. The document was translated by the Middle East Media Research Institute (MEMR) and includes statements such as:

(i)   “It is permissible to capture unbelieving woman and have sexual intercourse with a female captive – immediately if she is a virgin, after menstruation if she is not” [to confirm the woman is not pregnant];

(ii)   “It is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property, which can be disposed of”;

(iii)   “It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however if she is not fit for intercourse, then it is enough to enjoy her without intercourse”; and

(iv)   “It is permissible to beat the female slave other than in the face as a form of punishment”.

84. No basis has been put forward upon which this Tribunal could find as a matter of fact that the actions of Khaled Sharrouf towards the applicants amounted to an offence or offences in Syria or Northern Iraq. Paragraph 7 of the written submissions of the applicants rather suggests the contrary.

85. Khaled Sharrouf was not prosecuted, so there has been no opportunity for a trier of fact to draw the conclusion set out in s 10D(2)(b) of the Crimes Act 1900. There is no evidence before me capable of satisfying either s 10D(2)(b) or s 10C(2)(b).

86. Part 1A of the Crimes Act does not apply to the offences relied upon by the applicants. There is therefore no need to address the question of whether, when an offence is one to which Part 1A of the Crimes Act 1900 applies, that fact of itself renders the offence an offence ‘in and of New South Wales’. Clearly, however, the problem of the location in which the offences were committed persists.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

87. In order to deal with the applicants’ argument under the Crimes (Domestic and Personal Violence) Act 2007, it is convenient to set out again the following portion of s 19 of the Victims Rights and Support Act:

19   Meaning of “act of violence”

(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.

…

(3)  For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

…

(8)  In this Act:

sexual assault and domestic violence means any of the following:

…

(f)  any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:

…

(iv)  a person who, at the time of the offence, was living in the same household as the person who committed the offence,

88. The Crimes (Domestic and Personal Violence) Act 2007 provides:

4   Meaning of “personal violence offence”

In this Act, personal violence offence means:

(a) an offence under, or mentioned in, section 19A, 24, 25, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 43, 43A, 44, 45, 45A, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 73, 73A, 78A, 80A, 80D, 86, 87, 91P, 91Q, 91R, 93G, 93GA, 110, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or

(b)  an offence under section 13 or 14 of this Act, or

(b1) an offence under section 109, 111, 112, 113, 114, 115 or 308C of the Crimes Act 1900, but only if the serious indictable offence or indictable offence referred to in those sections is an offence referred to in paragraph (a) or (b), or

(c)  an offence of attempting to commit an offence referred to in paragraph (a), (b) or (b1).

89. All of the offences which are characterised as ‘personal violence offences’ by the Crimes (Domestic and Personal Violence) Act2007 (NSW) are offences under New South Wales legislation.

90. The Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides for the making of apprehended personal violence orders and other matters related to personal violence offences. In s 11, the Crimes (Domestic and Personal Violence) Act 2007 (NSW), for the purposes of that Act, defines a ‘domestic violence offence’ to include an offence under the Criminal Code Act 1995 (Cth). In s 12, the Crimes (Domestic and Personal Violence) Act 2007 provides for a system for the recording of an offence as a ‘domestic violence offence’ upon the criminal record of the perpetrator upon being found guilty of the offence or subsequent to being found guilty of the offence. There is no reference in the Victims Rights and Support Act to a ‘domestic violence offence’ as defined in the Crimes (Domestic and Personal Violence) Act 2007. The inclusion of a reference to the Criminal Code Act 1995 (Cth) in s 11(2) of the Crimes (Domestic and Personal Violence) Act 2007 has no effect upon the question of whether s 12(1)(b) of the Interpretation Act applies to the interpretation of the Victims Rights and Support Act.

91. The applicants submitted that the reference in s 9 of the Crimes (Domestic and Personal Violence Act) 2007, which sets out the objects of that Act, to the Declaration on the Elimination of Violence against Women and the United Nations Convention of the Rights of the Child indicated that ‘the door was not closed’ to an interpretation of the Victims Rights and Support Act in such a way as to give the applicants the right to apply for a payment under that Act. I reject this contention. There is no interaction, as a matter of statutory interpretation, between s 9 of the Crimes (Domestic and Personal Violence) Act 2007 and the Victims Rights and Support Act.

Has s 12(1)(b) of the Interpretation Act been displaced because of s 15.4 of the Criminal Code (Cth)?

92. The applicants argued as follows, in their written submissions:

42 The Applicants are victims of crimes recognised by Australia as having extraterritorial effect. Subject to Category D extended geographical jurisdiction, such that the offences can be prosecuted in Australian courts under Australian federal law regardless of whether the conduct constituting the alleged offence, or a result of the conduct constituting the alleged offence, occurred in Australia (s 15.4 of the Criminal Code) [sic]. There is no requirement that the alleged victim or perpetrator be an Australian citizen, resident or body corporate.

43 All of these offences are subject to category D extended geographical jurisdiction, which means that the offences apply whether or not the conduct constituting the alleged offence, or a result of the conduct constituting the alleged offence, occurs in Australia (s 15.4 of the Criminal Code Act 1995).

44.   The Commonwealth Parliament has therefore made clear its intention that no territorial restriction will apply in relation to these particular offences (see the note verbale LA/COD/59/1 on the scope and application of the principle of universal jurisdiction). Thus in legislating for the prosecution of these offences in Australian courts, Parliament has recognised the obligation of the Australia [sic] to give effect to universal jurisdiction as a well-established and binding principle of international law.

45 In enacting the VRSA, the New South Wales Parliament must likewise be taken to have been aware of that principle and to have intended to legislate in conformity with it. That provides further strong support for rejecting any construction of s 19(1)(a) as excluding offences within this serious category committed outside Australia; and all the more so where the offence has a relevant connection with New South Wales as described above.

46 The Applicants submit that in cases where the acts of violence were perpetrated in the course of the commission of a federal crime which is subject to universal jurisdiction, it would be inappropriate and impermissible to read down the definition of ‘act of violence’ contained in s 19(1)(a) of the VRSA by importing a territorial limitation that is not contained within the VRSA itself and which would be inconsistent with a binding norm of international law.

93. The effect of s 5(1) and (2) of the Interpretation Act is that the Interpretation Act applies to the Victims Rights and Support Act in the absence of the contrary intention appearing in either Act. It is for the New South Wales Parliament to legislate as to the rules by which its Acts are to be interpreted. There is no provision of any Act and no other source of law which indicates that the Commonwealth Parliament can legislate to provide that s 12(1)(b) of the Interpretation Act, should not apply to the Victims Rights and Support Act.

94. In case I am wrong about that, I will consider the applicants’ argument with respect to the Criminal Code (Cth).

95. The applicants seek to interpret s 19 of the Victims Rights and Support Act so that the offence referred to in the definition of ‘act of violence’ includes a Commonwealth offence under the Criminal Code (Cth).

96. There is no evidence, by way of extrinsic material or otherwise, which indicates that the New South Wales Parliament intended to extend the operation of the Victims Rights and Support Act to victims of offences against the Criminal Code (Cth) which have extraterritorial effect. The applicants’ argument imputes a contestable view of international law together with a particular intention to the New South Wales Parliament without an evidentiary basis.

97. The applicants rely on the offences related to slavery under s 270.3 of the Criminal Code (Cth). Section 15.4 of the Criminal Code (Cth) allows for the designation of Commonwealth offences as having extended geographical effect, so that, even when those offences are committed entirely outside of Australia, they may, subject to the fulfilment of certain procedural requirements, be prosecuted in Australia. The offences under s 270.3 of the Criminal Code (Cth) are offences to which s 15.4 apply.

98. The offences would be prosecuted as Commonwealth offences in a court which has Federal jurisdiction. The offences could be prosecuted anywhere in Australia if the accused were to be brought into the jurisdiction of the Commonwealth.

99. Section 15.4 of the Criminal Code (Cth) does not create a nexus between the offences it applies to and New South Wales. Specifically, it does not have the effect of deeming any offence to be an offence within the jurisdiction of New South Wales, and neither does it have the effect that the offence becomes an offence ‘in and of’ New South Wales.

93. The applicants assert that s 15.4 of the Criminal Code (Cth) evidences an intention in the Commonwealth that ‘no territorial restriction will apply in relation to these particular offences’. The inference is that the extension of the geographic area in which the offences could be committed, in order for the Commonwealth to have jurisdiction with respect to the prosecution of those offences, has the additional effect, without any express legislative provision, of extending the operation of the Victims Support Scheme to those Commonwealth offences to which s. 15.4 of the Criminal Code applies. I reject this argument. Section 15.4 of the Criminal Code (Cth) allows for the prosecution by the Commonwealth of the offences to which it applies even when those offences were committed outside of Australia, but neither s 15.4 of the Criminal Code (Cth) nor any other provision of the Criminal Code (Cth) expressly or impliedly addresses the issue of the compensation of a victim of crime, whether in Australia or elsewhere.

94. The applicants assert that, in enacting the Victims Rights and Support Act, the New South Wales Parliament ‘must likewise be taken to have been aware of that principle and to have intended to legislate in conformity with it’. The principle referred to is the principle referred to in the applicants’ submissions as the principle of universal jurisdiction. The ambit of the principle of universal jurisdiction is a matter of on-going debate. It is clear, however, that its purpose is to hold perpetrators to account for their crimes. It is usually discussed in the context of piracy, genocide, war crimes, crimes against humanity, slavery and torture. The principle of universal jurisdiction does not address the issue of the compensation of victims of crime.

95. Neither the principle of universal jurisdiction nor the existence of s 15.4 of the Criminal Code (Cth) displaces the application of s 12(1)(b) of the Interpretation Act to the interpretation of s 19 and s 23 of the Victims Rights and Support Act. Neither the principle of universal jurisdiction nor s 15.4 of the Criminal Code (Cth) expressly or impliedly extends the operation of the victims of crime compensation scheme provided for in the Victims Rights and Support Act beyond New South Wales.

96. I reject the applicants’ submissions set out in paragraphs 44 to 46 of their written submissions, set out above at [90].

Australia’s international law obligations and commitments and the Victims Rights and Support Act

104. The applicants argued that the provisions of the Victims Rights and Support Act should be interpreted and applied in a manner which is consistent with Australia’s obligations and commitments under international law. They relied upon the following remarks of Brennan J, Deane J and Dawson J in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38:

We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty.

105. Those remarks are confined to Commonwealth legislation and say nothing about the legislation of New South Wales. However, in Re Tracey (2011) 80 NSWLR 261, in the context of discussing what constituted relevant considerations to be taken into account by the Childrens Court in relation to an application to rescind or vary a care order under the Children and Young Persons (Care and Protection) Act 1998, Spigelman CJ, with whom Beazley J agreed, said at [23]–[33]:

23   …The judiciary and the executive are both arms of government. Where the latter has formally undertaken an obligation, binding as a matter of international law, even if not formally adopted as municipal law by the third arm, the legislature, the judiciary should recognise that the national interest is best served if any such international obligation is taken into account in its own decisions, when permissible and appropriate to do so.

…

28   By reason of its comprehensive treatment of the circumstances in which an international instrument can have an effect on Australian legal decision-making, and his Honour's subsequent elevation to the High Court, the most frequently cited judgment on these matters is that of Gummow J in Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 (" Magno "). His Honour states that an administrative decision-maker may have regard to an international agreement or obligation in "exercising a discretion" under a municipal law (at [18]).

29   Although this particular question did not directly arise in Magno and, accordingly, was not expressly considered by the other member of the majority in that case, it is pertinent to note that the same proposition appears in an earlier joint judgment of the Full Court of the Federal Court, in which Gummow J participated ( Gunaleela v Minister for Immigration and Ethnic Affairs [1987] FCA 277; (1987) 15 FCR 543 at [50]- [59]) and in another judgment of the Full Court where Gummow J wrote the principal judgment, with which the other members agreed ( Heshmati v Minister for Immigration [1991] FCA 387; (1991) 31 FRC 123 at [21]-[22]). In each of these earlier cases, the Full Court of the Federal Court concluded that Australia's international obligations under the Convention Relating to the Status of Refugees (1951) was relevant to the exercise of discretions by decision-makers under the Migration Act 1958 (Cth).

30   A particularly apposite application of this line of authority was the acceptance by French J, when a judge of the Federal Court, that the CROC [the Convention on the Rights of the Child] could be a relevant consideration for an administrative decision under the Migration Act 1958 (Cth) . In Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875, his Honour said (at [59]):

"There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration 'in all cases concerning children'. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions ( Magno , at [18], Gummow J). Such considerations do not thereby become mandatory."

31   French J went on to refer to, and apply, the principle that an international obligation is not a mandatory relevant consideration attracting judicial review for jurisdictional error. His Honour referred to the joint judgment of McHugh and Gummow JJ in Re Minister for Immigration Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101].

32   However, the issue that arises in the present case is not whether Balla DCJ was obliged to take into account provisions of the CROC as relevant considerations. The issue in the present case is whether her Honour failed to take into account a relevant consideration by rejecting any reliance on the CROC, as she did explicitly. The relevant jurisdictional error is her Honour's positive statement, in effect, that none of the provisions of the CROC were capable of constituting a relevant consideration. 

33   Although the above line of authority is concerned with the exercise of discretions conferred upon the executive branch of government, there is authority that extends this principle to discretions conferred upon the judiciary. (See, eg, McKellar v Smith (1982) 2 NSWLR 950 at 962 [the exercise of a discretion to admit a confessional statement made by a child or young person into evidence pursuant to the Child Welfare Act 1939] and see generally the cases set out by Bell J in Tomasevic v Travaglini [2007] 17 VSC 337; (2007) 17 VR 100 at [73] fn 49; see also Wendy Lacey, "Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere" (2004) Melbourne Journal of International Law 4.) In my opinion, the principle referred to at [23] above does apply to the exercise of a judicial discretion.

106. This matter is a merits review. It calls for the Tribunal to conduct an administrative review to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (see s 63 Administrative Decisions Review Act 1997). However, the threshold question the subject of this decision is the question of law as to whether the Victims Rights and Support Act is capable of applying to claims founded on an act of violence which occurred overseas. It is a jurisdictional question. In deciding that question, the Tribunal is not exercising a discretion, but is deciding a question of law as a preliminary component of an administrative review. In deciding that question of law, which involves determining whether a substantive obligation exists under the Victims Rights and Support Act, following the remarks of French J in Le Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875, quoted above at [105], the issue is whether any relevant obligation under international law has been incorporated into domestic legislation.

107. The applicants argued, in paragraph 73 of their written submissions:

73.   The provisions of the VRSA should therefore be interpreted and applied, so far as the language permits, in a way which is consistent with Australia’s obligations and commitments under international law. There is a presumption that the New South Wales Parliament intends to legislate in accordance with Australia’s international legal obligations

108. That proposition is not supported by the decisions in Re Tracey and Minister for Foreign Affairs and Trade v Mango. The principle established in Mango, as summarised by Spigelman CJ in Re Tracey, is that “an administrative decision maker may have regard to an international agreement or obligation in ‘exercising a discretion’ under a municipal law”. That principle was then extended, in Re Tracey, to the exercise of a judicial discretion. In this matter, the issue to be resolved is whether the Victims Rights and Support Act, as a matter of statutory interpretation, applies to the victims of acts of violence in the Middle East. The resolution of this issue does not involve the exercise of a discretion.

109. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, Mason CJ and Deane J, with whom Toohey J and Gaudron J agreed, said at [25]–[28]:

25. It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute(4). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive(5). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s.47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.

26. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party(6), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law(7). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations(8).

28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law(9). But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials(10). Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.

110. There is no ambiguity to be resolved in the wording of s 5(1) and (2) and s 12(1)(b) of the Interpretation Act and ss 19 and 23 of the Victims Rights and Support Act.

111. The applicants said, in their written submissions:

75.   Relevant international obligations include the following:

(a)   Australia is a State Party to the Rome Statute, and the Australian Parliament has enacted the ICCA, whose principal objective is to facilitate compliance with Australia’s obligations under the Rome Statute (s 3 of the ICCA). Article 75 of the Rome Statute (as set out in Schedule 1 of the ICCA) recognises that victims of gross violations of gender based violence, war crimes, and/or genocide have a right to receive reparations including “restitution, compensation and rehabilitation”;

(b)   Australia is a party to the UN Convention against Transnational Organized Crime and its Palermo Protocol. Article 6(6) of the Palermo Protocol provides that ‘each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered”;

(c)   the UN Basic Principles and Guidelines on Rights to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law (the UN Principles). In particular, paragraph 16 of the UN Principles asks nation states to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations;

(d)   Australia has ratified other international human rights instruments which contain provisions in relation to the requirement to provide an effective remedy and reparations (including, but not limited to, the International Covenant on Civil and Political Rights; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture; and the Convention on the Prevention and Punishment of the Crime of Genocide; and

(e)   the Commonwealth Government has confirmed that it is “deeply committed to supporting the United Nations Women, Peace and Security agenda to ensure better outcomes for women and girls in conflict and post-conflict settings, and considered a global leader in this space” (which is relevant to the Applicants who are each victims of sexual and gender-based violence in a conflict setting). The Australian National Plan on Women, Peace and Security 2012-2018 (the Plan) implements United Nations Security Council Resolution 1325 (UNSCR 1325). The Plan “sets out what Australia will do, at home and overseas, to […] promote their participation in conflict prevention, management and resolution”. Reparations for victims are an essential, and clearly recognised, right for victims of crimes such as those recognised by the Plan and compensation for the Applicant, a victim of a resident of New South Wales in a conflict Zone, would clearly be in line with Australia’s commitment.

…

78.   The Applicants similarly make reference to the Preamble of the Basic Principles and Guidelines on the Right to a Remedy which speaks of “honouring the victims’ right to benefit from remedies and reaparation, [to ensure that] the international community keeps faith with the plight of victims, surviviors and future human generations and reaffirms the international legal principles of accountability, justice and the rule of law.”

79.   The provisions providing a right to remedy for victims of international human rights breaches are found in the numerous international human rights instruments which Australia has signed, ratified and incorporated into domestic law including:

(a)   Article 8 of the Universal Declarations of Human Rights.

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

(b)   Article 3 of the International Covenant on Civil and Political Rights and Article 14 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

"Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation."

(c)   Supplemented by General Comment 3 (2012) on Article 14 of the Convention against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment:

"Each State party is required to ensure in its legal system that the victim of an act of' torture' obtains redress and has an enforceable right to fair and adequate compensation."

(d)   General Comment 3 (2012) further states:

"Redress includes the following five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The Committee recognizes the elements of full redress under international law and practice as outlined in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines). Reparation must be adequate".

(e)   Article 5 of the Convention against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: ..

(b) When the alleged offender is a national of that State;

Supplemented by the interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Juan E Mendez (A/70/303) 7 August 2015.

Paragraph 27 "The Special Rapporteur accordingly reminds States that the jus cogens non derogable prohibition against torture and ill-treatment cannot be territorially limited and that any jurisdictional references found in the Convention against Torture cannot be read to restrict or limit States' obligations to respect all individuals' rights to be free from torture and ill-treatment, anywhere in the world. This prohibition and attendant obligations — such as the obligation to investigate, prosecute and punish every act of torture and ill-treatment, ...— are norms of customary international law."

The Applicants the "attendant obligations" referred to above have been interpreted to include reparations by virtue of reference to Article 14 of the Convention.

112. I note that the applicants’ written submission, in paragraph 75(e), refers to Khaled Sharrouf as ‘a resident of New South Wales’. Clearly, at the time of the acts of violence complained of, Khaled Sharrouf was not a resident of New South Wales, but was resident in the Middle East. On the basis of the facts set out by the applicants, he had not been a resident of New South Wales since December 2013.

113. None of the instruments the subject of the argument on behalf of the applicants imposes an obligation upon the Commonwealth or upon any state or territory of Australia (or any other State) to set up, or give a victim of a crime occurring abroad access to, a compensation fund for victims of crime. It should be remembered, when considering the text of the instruments, that when States are referred to in those instruments, the reference is to Member States (such as the Commonwealth of Australia), and not to the component states of those Member States, such as New South Wales is to the Commonwealth.

114. The Declaration of Basic Principles for Justice for Victims of Crime and Abuse of Power says:

8.   Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

9.   Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanction.

…

11.   Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

Compensation

12.   When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

(a)   Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

(b)   The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation

13.   The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

Assistance

14.   Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.

15.   Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

16.   Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

115. The Declaration of Basic Principles for Justice for Victims of Crime and Abuse of Power is not binding, it is recommendatory. In addition, an inference can be drawn from cls 8, 9, 11, 14, 15 and 16 that the Declaration is intended to address the compensation of a victim of crime within the jurisdiction in which the crime was committed. As the respondent pointed out, it can hardly have been intended that all members of the United Nations would severally be responsible for the compensation of victims of crime wherever they occurred.

116. None of the instruments relied upon by the applicants impose an obligation upon Australia (or any other signatory) to create a compensation system for the compensation of the victims of crime regardless of where in the world the crime may have occurred. Many of the instruments cited express principles rather than imposing positive obligations. Where reparations are contemplated in the instrument, in many instances the existing law of Australia would be sufficient to meet that aim in that the existing law enables victims of crime within the jurisdiction who suffer injury to sue the perpetrator of the crime in tort for damages. Where a positive obligation to establish a system for the provision of reparations to victims of violations of international human rights law is expressed, it is clear from the context that what is contemplated is the provision of that system by the Member State or the signatory to the instrument (in both cases, Australia) and that the violations of human rights law, or crimes, involved are violations or crimes which have occurred within the jurisdiction of the Member State or signatory. For example, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (‘the UN Basic Principles and Guidelines) (which is also not binding) says:

15.   Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

16.   States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.

17.   States shall, with respect to claims by victims, enforce domestic judgments for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgments for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgments.

18.   In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

The description of the action which might be taken to guarantee non-repetition includes “ensuring effective civilian control of military and security forces’, ‘ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality, ‘strengthening the independence of the judiciary’ and ‘reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law”.

117. Clearly, in saying, in paragraph 15 ‘a State shall provide reparation to victims for acts or omissions which can be attributed to the State’ the UN Basic Principles and Guidelines, and the UN Assembly in adopting them, intends to recommend that compensation be arranged by a Member State only where the human rights violation or crime is committed within the jurisdiction of that Member State. This conclusion is fortified by the description of the actions which might be taken to guarantee non-repetition.

118. None of the material concerning international obligations referred to on behalf of the applicants supports the contention that New South Wales has an obligation under international law to provide compensation to the victims of crimes which were committed abroad.

119. The application of s 12(1)(b) of the Interpretation Act to s 19 and s 23 of the Victims Rights and Support Act is not inconsistent with international law.

120. If there is a principle of statutory interpretation that the New South Wales legislature is to be taken to legislate consistently with Australia’s international obligations, the application of s 12(1)(b) of the Interpretation Act to s 19 and s 23 of the Victims Rights and Support Act is not inconsistent with that principle, because there is no contrary international obligation. To determine otherwise would import rights and obligations into the law of New South Wales which have not been incorporated by legislation into the law, and which exceed the obligations contemplated by the international instruments relied upon by the applicants.

Summary and Conclusion

121. The text of s 19 and s 23 of the Victims Rights and Support Act, read with s 5(1) and (2) and s 12(1)(b) of the Interpretation Act, says that the ‘act of violence’ which is an essential part of the basis for any application for victims support under the Victims Rights and Support Act, must be an act of violence in and of New South Wales. An ‘act of violence’ ‘in and of New South Wales’ is an act or series of related acts which has apparently occurred in the course of the commission of an offence, that has involved violent conduct against one or more persons and that has resulted in injury or death to one or more of those persons. The offence and the violent conduct must be ‘in and of New South Wales’. The injury or death must have been caused in New South Wales.

122. The phrase ‘in and of New South Wales’ means occurring within New South Wales as well as being closely identified with New South Wales.

123. The first and second reading speech in relation to the Victims Rights and Support Bill (which became the Victims Rights and Support Act) and the PricewaterhouseCoopers report relied upon by the government in relation to that legislation are extrinsic materials which may be taken into account in interpreting the Victims Rights and Support Act under s 35 of the Interpretation Act. Those extrinsic materials support the literal meaning of the text in those Acts set out in [122], above.

124. Pursuant to s 5(1) and (2) of the Interpretation Act, the Interpretation Act applies to the Victims Rights and Support Act, except in so far as the contrary intention appears in the Interpretation Act or in the Victims Rights and Support Act. No contrary intention appears in either Act. No contrary intention appears in any other Act, either. Sections 31 and 32 of the Victims Rights and Support Act contemplate that victims of crime who receive support may be resident outside of Australia, but those sections refer to victims of crime who have left Australia after the crime in question was committed in New South Wales. It is unlikely that the provisions of a third Act could impliedly render s 12(1)(b) inapplicable to the Victims Rights and Support Act in the face of the clear terms of s 5(1) and (2) of the Interpretation Act. In any event, no such provisions have been put forward.

125. Part 1A of the Crimes Act does not ‘displace’ the application of the Interpretation Act to the Victims Rights and Support Act under s 5(2) of the Interpretation Act for the reason set out in [124] above.

126. Part 1A of the Crimes Act does not seek to ‘displace’ the application of the Interpretation Act to the Victims Rights and Support Act. Part 1A of the Crimes Act only applies to an offence committed wholly outside of New South Wales if it is also an offence in the place in which it was committed or, if it is not an offence in that place, when the trier of fact, on a prosecution, is satisfied that ‘the offence constitutes such a threat to the peace, order or good government of the State that the offence warrants criminal punishment in the State’. There is no evidence before me upon which I could find that either of those preconditions has been fulfilled or could be fulfilled. There is no evidence upon which I could find that the requirement of s 10C(2)(b) of the Crimes Act has been fulfilled either.

127. The Crimes (Domestic and Personal Violence) Act 2007 (NSW) does not ‘displace’ the application of the Interpretation Act to the Victims Rights and Support Act for the reason set out in [124], above. Even if it could, it does not seek to do so.

128. The Criminal Code (Cth) does not ‘displace’ the application of the Interpretation Act to the Victims Rights and Support Act for the reasons set out in [124], above.

129. Even if the Criminal Code (Cth) could ‘displace’ the application of the Interpretation Act to the Victims Rights and Support Act, it does not seek to do so.

130. There is no basis for assuming that the New South Wales Parliament intended to encompass victims of Commonwealth crimes under the Criminal Code (Cth) within the New South Wales Victims Support Scheme.

131. The principle of universal jurisdiction does not assist the applicants to gain access to the New South Wales Victims Support Scheme under the Victims Rights and Support Act.

132. There is no ambiguity in the Interpretation Act and the Victims Rights and Support Act as to whether the Interpretation Act applies to the Victims Rights and Support Act.

133. Even if it is relevant to consider the terms of the international instruments relied on by the applicants, the Victims Rights and Support Act, interpreted using s12(1)(b) of the Interpretation Act, is not inconsistent with those instruments.

134. The correct and preferable decision in this matter is that the applicants have no entitlement to support from the Victims Support Scheme under the Victims Rights and Support Act because they are not the victims of an act of violence in and of New South Wales. The Victims Rights and Support Act does not apply to them in their circumstances.

135. I make the following orders:

1. The applications are dismissed.

2. The decision of the Commissioner for Victims Rights, by her delegate, Senior Assessor Baker, in relation to the applicants’ applications, is affirmed.

3. The publication of the names of each of the applicants together with any evidence provided to the Tribunal tending to identify any of the applicants is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 20 September 2019