Richardson v Department of Justice and Attorney-General
[2014] QCAT 405
| CITATION: | Richardson v Department of Justice and Attorney-General [2014] QCAT 405 |
| PARTIES: | David Allan Richardson (Applicant) |
| v | |
| Department of Justice and Attorney-General Offender Debt Recovery Scheme (Respondent) |
| APPLICATION NUMBER: | GAR079-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 20 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 15 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for review will proceed to hearing. |
| CATCHWORDS: | VICTIMS OF CRIME – where applicant assaulted another person and caused bodily harm – where applicant charged with an offence arising from the assault – where applicant pleaded guilty to the offence FINANCIAL ASSISTANCE – where victim of violence successfully sought financial assistance under statutory scheme – where State sought to recover from the applicant the amount of financial assistance paid to the victim REVIEW OF AMOUNT OF PAYMENT – where applicant sought to review amount of payment made to victim – whether applicant has right to review amount of payment Victims of Crime Assistance Act 2009 ss 89(a), 115, 116, 124, 125, 126, 131, 140(3), 189, and Schedule 3 Re Australian Institute of Marine and Power Engineers v Department of Transport [1986] FCA 44 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | David Allan Richardson represented by Mr M Hibble of Counsel instructed by Gun Lawyers |
| RESPONDENT: | Department of Justice and Attorney-General represented by Mr R A Danen, senior legal officer of the respondent |
REASONS FOR DECISION
On 2 February 2011 David Richardson assaulted Brian Volk in the Leichhardt Hotel in Cloncurry. Mr Richardson was charged with assault occasioning bodily harm over the incident. On 13 May 2011 Mr Richardson pleaded guilty to the charge and was fined $400. No conviction was recorded.
In a letter sent to Mr Richardson to a Cloncurry address on 26 November 2012 the delegate of the scheme manager of the Offender Debt Recovery Unit of the Department of Justice and Attorney-General informed him that financial assistance had been paid under the Victims of Crime Assistance Act 2009 (VOCAA) totalling $21,179.70 and it was intended to recover that amount from Mr Richardson. Mr Richardson no longer lived at the Cloncurry address and on 4 June 2013 a replacement letter was sent giving him notification that recovery of $21,179.70 would be sought from him.
Mr Richardson disputes that $21,179.70 should be recovered from him. He contended that medical certification for unfitness for work due to injuries sustained in the assault for the period 2 February 2011 to 25 February 2011 had been provided to Victim Assistance Queensland. Financial assistance for loss of earnings had however been paid for a period from 2 February 2011 to 27 July 2011 (25 weeks) in the absence of evidence that the victim had lost earnings for that entire period as a direct result of the assault.
This contention was considered by the Manager of the Offender Debt Recovery Scheme who then made a decision on 14 February 2014 that the State was entitled to recover $21,179.70 from Mr Richardson. The scheme manager informed Mr Richardson that a Team leader in Victim Assist Queensland had reviewed the file and had confirmed that the calculations for loss of earnings were within guidelines issued under section 131 of VOCAA. The Team Leader had been satisfied that appropriate information had been obtained about the applicant’s employment and that the original decision to grant assistance for loss of earnings was supported by the available evidence.
Mr Richardson applied to QCAT for a review of the decision to recover $21,179.70 from him. However Mr Richardson proceeds on a rather unusual pathway in this review. He does not seek to rely on the pathway provided by section 116 of VOCAA whereby an offender can dispute that he has been convicted of a relevant offence but he seeks to review the fundamental decision to pay $21,179.70 to the victim. The issue of whether QCAT has jurisdiction to conduct a review of that decision on the application by an offender was argued as an initial issue prior to the review proceeding to hearing.
It was argued on behalf of Mr Richardson that he has standing to seek review of the decision to pay an amount of victim assistance made under section 89(a) of VOCAA. A person aggrieved by a decision made under section 89(a) has the right to apply to the scheme manager for a review of that decision.[1] Once that internal review is concluded, the applicant for review can apply to QCAT by way of an external review of the decision.[2]
[1]VOCAA s 124(1).
[2]Ibid s 125(2).
It was argued on behalf of Mr Richardson that the meaning of a “person aggrieved” must include the person who ultimately has to pay the amount of assistance. However the issue is complicated by the nature of the statutory scheme. Under the scheme established by VOCAA, financial assistance is paid to a victim of crime by the State and not directly by an offender.
The previous statutory system that provided financial support for victims of crime, abolished with the repeal in 2009 of the Criminal Offences Victims Act 1995, was a compensation based system which placed the primary onus on offenders to pay compensation when their actions resulted in harm. The application under the repealed Act was essentially a claim made by a victim against the offender. As the offender was subjected to a direct liability to pay compensation, the repealed system gave the offender an opportunity to participate in the process that set the amount of compensation payable to the victim.
The current scheme under VOCAA does not grant compensation for the impact caused by the actions of an offender. Instead, it provides financial assistance to a victim of violence calculated in accordance with the Act. Payment of that assistance can commence before the offender is convicted for the crime which caused the harm. Indeed payment of assistance can be made whether or not a person has been identified, arrested, prosecuted, or convicted for the act of violence which caused harm to the victim.[3]
[3]See definition of crime in VOCAA s 25(2)(b).
The focus of VOCAA is therefore fundamentally different from the system that VOCAA replaced. The Act seeks to respond promptly and fairly to the needs of victims of crime. According to the explanatory notes to the VOCAA Bill, the drawbacks of the repealed system involving lengthy court processes and a tendency for that process to exacerbate the effect of the crime on the victim would be overcome by the current administrative process set up by VOCAA.
Accepting that VOCAA is deliberately different in focus and process to the repealed criminal compensation legislation, there is still at least one basic similarity between the two systems: namely the offender is held liable for payment of money that has been granted to the victim by way of financial assistance. Under the repealed system the offender had some input into the setting of the amount paid by being able to respond to the application by the victim and by being able to challenge the evidence put forward in support of that application. It is argued by the representative for the Department in this case that the offender has no right to have any input into the setting of the amount of financial assistance payable to the victim, despite the offender being liable to pay that amount back when the State seeks to recover it.
The argument by the Department is not based on any provision in VOCAA that expressly removes or limits the right of an offender to challenge the amount of the payment sought to be recovered from an offender. It was argued that the tribunal must interpret VOCAA in a manner that will best achieve the purpose of the Act.[4]
[4]Acts Interpretation Act 1954 s 14A.
It was argued that the purpose of VOCAA is to, among other things, to provide a scheme to give financial assistance to certain victims of acts of violence. However there is no mention in the Act of giving offenders any right of review. The Department argued that it is open to the tribunal to read down any perceived right that Mr Richardson’s claims to have to review the decision to pay an amount of assistance to the victim of his violence.
It is clear that the purpose of VOCAA is to provide an assistance scheme for victims of violence. However that laudatory purpose can co-exist with a right of review of the amount recoverable from an offender by the State. Allowing a right of review by an offender does not detract from the express statutory purpose of providing assistance to victims. Financial assistance would be used by a victim to pay for immediate and ongoing medical and other support and to provide the means of paying for every day necessities when wages stop or are reduced due to the effect of the violence on a victim’s earning capacity.
Any right of review by the offender would only come into effect at a time much later than when the payment decision was made under the VOCAA system. The offender’s right is associated with the demand for recovery by the State once the assistance has been fully paid out to the victim. The review is not contended to be triggered by the payment of assistance but by the demand for recovery by the State.
However the Department argues that the existence of a right of review is not supported by the Act. The review rights in sections 124 and 125 are given to a person aggrieved by the decision. The decision that can be reviewed is made about an application for assistance by a victim of violence. It was argued by the Department that it would be unusual to allow a party who had no input into an initial decision to review that decision at a later time.
However that argument is not sustainable. The point of giving a right of review in an administrative arena is to allow a person aggrieved by the decision to have the opportunity to set it aside or to modify the decision to ameliorate the impact on the reviewer’s own circumstances. The focus is on the interests that are affected and not on whether someone was actively involved in the decision making process. The standing conferred is on those persons adversely affected by the decision, not restricted to a narrow band of persons who were part of the impugned process. The courts have long held that it is not essential for the aggrieved person to be a party to the administrative decision that the person is seeking to quash.[5]
[5]Re Australian Institute of Marine and Power Engineers v Department of Transport [1986] FCA 443; Cheatley v The Queen (1972) 127 CLR 291
The Department argued that section 124 imposes a time limit of 28 days for the exercise of the review rights and as VOCAA does not require the original payment decision to be served on the offender, the section cannot be held to contemplate any right of review by that offender. However that submission is not strictly accurate. When recovery is sought from an offender, section 115 requires notice is given of the amount of the assistance granted and the conditions (if any) imposed on the grant. That requirement is clearly the occasion when the person in question (the person aggrieved by the decision) is given notice of the payment decision.
An interpretation of sections 124 and 125 being capable of operating on that particular notice under section 115 is as open as those sections operating on a notice of the decision given at an earlier time to the victim. There can be separate rights of review by the victim and any other person aggrieved by the same decision. The timing of the exercise of the review rights will be different but in each case the person seeking to review must exercise their respective right within 28 days of receiving notice of the decision.
It is noted that VOCAA anticipates that a review under section 124 or 125 may result in the amount of assistance being reduced.[6] If an offender successfully reviews the amount assessed as assistance for a victim, the result would be that only the reduced amount could be recovered from the offender but the balance of the moneys paid out could be recovered from the victim as a debt owed to the State.[7] Such an outcome would ensure that the system is subject to proper and balanced scrutiny and strictures applied to the assessment system in accordance with the proper administration of public money.
[6]VOCAA s 126.
[7]Ibid ss 126(2), (3).
The Department argued that section 125 places a restriction on who can seek review to QCAT by use of the word “applicant”. The term “applicant” is defined in schedule 3 for Chapter 3 of the Act (which includes sections 124 and 125) as meaning a person who applied for financial assistance under the scheme. While initially an attractive argument, it cannot be a logical outcome that the Act had intended to restrict who could seek external review to QCAT to victims (being applicants for financial assistance) but would not restrict any other person aggrieved by a decision from exercising internal review rights under section 124. If there is a right of internal review because some one is aggrieved by a decision, then logically that person would have external review rights as well. The wording of section 125 does not on its face exclude any category of aggrieved persons from external review.
The Department also argued that transition provisions in VOCAA should be interpreted as supporting the contention that there is no right of a review by an offender. Transition provisions from the repealed system to VOCAA provided for an opportunity for an offender to challenge the amount being recovered in section 189 but a similar provision was not placed into section 115.
However the transition measures deal with applications that had not been completed by the commencement date of the new Act. The rights existing at that time had included the right of an offender to challenge in court the amount of compensation paid to a victim. With the change in system from a court based assessment to an administrative assessment, it would be essential to keep those rights alive even though the courts were no longer assessing compensation. It would be contrary to accepted drafting principles to extinguish a right during a transition period when an application was lodged under the repealed system and completed under the new system. The absence in section 115 of an express review right of a payment decision in terms of section 189 is not evidence that VOCAA does not otherwise provide a right of review in section 124 to an offender who is aggrieved by the payment decision.
The Department argued that VOCAA expressly provides that information about a victim is confidential and must not to be disclosed to an unauthorised person. There are naturally limits to confidentiality as otherwise no decision could be made if information could not be disclosed for the purposes of the Act. Section 140(3) permits the disclosure of information in connection with the performance of a function under the Act. The argument that privacy prevents a review right cannot be sustained when the Act provides an aggrieved person with a review process under the Act. That review can only be conducted by an examination of information relevant to the decision under review.
Lastly the Department argued that an offender has an existing review remedy under the judicial review process. That may be the case but some administrative decisions give rise to a judicial review right but at the same time a person affected by the decision may have a merits review opportunity under statute. The rights are not mutually exclusive.
Mr Richardson has argued that he is a person aggrieved by the decision to pay $21,179.70 to the victim in the circumstances where that payment is sought to be recovered from him by the State. He sought internal review under section 124 of the payment amount and the decision was made to confirm that payment amount and to recover the amount in full from him. He has now sought an external review under section 125 of the quantification of the assistance at $21,179.70 and he has a right to seek review of that assessment of financial assistance.
The review will proceed to hearing after further procedural directions are made.
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