New South Wales: Victims Rights and Support Act 2013 (NSW)

Victims Rights and Support Act 2013 No 37 An Act to establish a new Victims Support Scheme to replace the compensation scheme established under the Victims Support and Rehabilitation Act 1996 and to repeal that Act; to provide for a Commissioner of Victims Rights; and to repeal and re-enact (with minor modifications) provisions of the Victims Rights Act 1996. Part 1 Preliminary 1 Name of Act This Act is the Victims Rights and Support Act 2013. 2 Commencement This Act commences on the date of assent to this Act. 3 Definitions (1) In this Act— act of modern slavery—see section 19A. act of violence—see section 19. agency means any of the following— (a) a Government agency, (b) a person or non-government agency funded by the State to provide support services to victims of crime. Charter of Victims Rights means the Charter set out in section 6 and, in relation to a victim of a forensic patient, means the Charter set out in section 6A. Commissioner means the Commissioner of Victims Rights. conviction includes— (a) an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999, and (b) except in Part 5, an order made under section 33 of the Children (Criminal Proceedings) Act 1987 (other than section 33 (1) (a) (i)). family victim—see section 22. forensic patient has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. function includes a power, authority or duty and exercise a function includes perform a duty. Fund means the Victims Support Fund. primary victim—see section 20. road crime—see section 19AB. Scheme means the Victims Support Scheme established by this Act. secondary victim—see section 21. Secretary means the Secretary of the Department of Justice. support services include welfare, health, counselling and legal assistance services. Tribunal means the Civil and Administrative Tribunal. victim of an act of violence—see section 18. victim of crime—see section 5. Victims Advisory Board means the Victims Advisory Board established by this Act. victims group means an organisation that provides support services for victims of crime. victims support—see section 18. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) (Repealed) Part 2 Victims rights Division 1 Preliminary 4 Object of Part The object of this Part is to recognise and promote the rights of victims of crime. 5 Meaning of "victim of crime" (1) For this Act, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of— (a) a criminal offence, including a criminal offence involving a motor vehicle, or (b) conduct of a kind referred to in the Modern Slavery Act 2018, section 5(1), definition of modern slavery, paragraph (b). (2) A person suffers harm if, as a result of such an act— (a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or (b) the person's property is deliberately taken, destroyed or damaged. (3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part. (4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights. Division 2 Charter of Victims Rights 6 Charter of rights of victims of crime The following comprises the Charter of rights of victims of crime— 6.1 Courtesy, compassion and respect A victim will be treated with courtesy, compassion, cultural sensitivity and respect for the victim's rights and dignity. 6.2 Information about services and remedies A victim will be informed at the earliest practical opportunity, by relevant agencies and officials, of the services and remedies available to the victim. 6.3 Access to services A victim will have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim's needs. 6.4 Information about investigation of the crime A victim will, on request, be informed of the progress of the investigation of the crime, unless the disclosure might jeopardise the investigation. In that case, the victim will be informed accordingly. 6.5 Information about prosecution of accused (1) A victim will be informed in a timely manner of the following— (a) the charges laid against the accused or the reasons for not laying charges, (b) any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision to accept a plea of guilty by the accused to a less serious charge in return for a full discharge with respect to the other charges, (c) the date and place of hearing of any charge laid against the accused, (d) the outcome of the criminal proceedings against the accused (including proceedings on appeal) and the sentence (if any) imposed. (2) A victim will be consulted before a decision referred to in paragraph (b) above is taken if the accused has been charged with a serious crime that involves sexual violence or that results in actual bodily harm or psychological or psychiatric harm to the victim, unless— (a) the victim has indicated that he or she does not wish to be so consulted, or (b) the whereabouts of the victim cannot be ascertained after reasonable inquiry. 6.6 Information about trial process and role as witness A victim who is a witness in the trial for the crime will be informed about the trial process and the role of the victim as a witness in the prosecution of the accused. 6.7 Protection from contact with accused A victim will be protected from unnecessary contact with the accused and defence witnesses during the course of court proceedings. 6.8 Protection of identity of victim A victim's residential address and telephone number will not be disclosed unless a court otherwise directs. 6.9 Attendance at preliminary hearings A victim will be relieved from appearing at preliminary hearings or committal hearings unless the court otherwise directs. 6.10 Return of property of victim held by State If any property of a victim is held by the State for the purpose of investigation or evidence, the inconvenience to the victim will be minimised and the property returned promptly. 6.11 Protection from accused A victim's need or perceived need for protection will be put before a bail authority by the prosecutor in any bail application by the accused. 6.12 Information about special bail conditions A victim will be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim's family. 6.13 Information about outcome of bail application A victim will be informed of the outcome of a bail application if the accused has been charged with sexual assault or other serious personal violence. 6.14 Victim impact statement A relevant victim will have access to information and assistance for the preparation of any victim impact statement authorised by law to ensure that the full effect of the crime on the victim is placed before the court. 6.15 Information about impending release, escape or eligibility for absence from custody A victim will, on request, be kept informed of the offender's impending release or escape from custody, or of any change in security classification that results in the offender being eligible for unescorted absence from custody. 6.16 Submissions on parole and eligibility for absence from custody of serious offenders A victim will, on request, be provided with the opportunity to make submissions concerning the granting of parole to a serious offender or any change in security classification that would result in a serious offender being eligible for unescorted absence from custody. 6.17 Financial assistance for victims of personal violence A victim of a crime involving sexual or other serious personal violence is entitled to make a claim under the Victims Support Scheme. 6.18 Information about complaint procedure where Charter is breached A victim may make a complaint about a breach of the Charter and will, on request, be provided with information on the procedure for making such a complaint. 6A Additional matters for Charter of victims rights of forensic patients The following comprises the Charter of rights of victims of crime who are victims of forensic patients— 6A.1 General matters Each right referred to in section 6. 6A.2 Treatment of victim A victim will be treated with respect and compassion, having regard to the fact that proceedings may touch on painful or tragic events in the victim's life and cause the victim to experience further grief and distress. A victim making a submission before the Mental Health Review Tribunal should be listened to respectfully and in a way that is cognisant of the effects of the victim's experience and the benefit of expressing views about its impact. 6A.3 Information about reviews of and other proceedings relating to forensic patients A victim will be informed in a timely manner of any matter before the Mental Health Review Tribunal, or the release of or granting of leave to a forensic patient or any other matter, that the victim is required to be informed of under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 7 Implementation of Charter (1) The Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of the affairs of the State. (2) Any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter. (3) In this section, the administration of the affairs of the State includes the following— (a) the administration of justice, (b) the provision of police services, (c) the administration of any department of the Government, (d) the provision of services to victims of crime by any person or non-government agency funded by the State to provide those services, (e) the administration of matters relating to forensic patients and victims of forensic patients. Part 3 Administration Division 1 Commissioner of Victims Rights 8 Commissioner and other staff (1) A Commissioner of Victims Rights and such other staff as are necessary for the purposes of this Act are to be employed under Part 4 of the Government Sector Employment Act 2013. (2) The Commissioner may arrange for the use of the services of any staff or facilities of a Government agency and may, with the approval of the Secretary, engage such consultants or contractors as are necessary for the purposes of this Act. 9 Functions generally of Commissioner (1) The Commissioner has and may exercise such functions as are conferred or imposed on the Commissioner by or under this or any other Act. (2) The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to the following— (a) any member of staff referred to in section 8, (b) any person of a class prescribed by the regulations. 10 Functions of Commissioner (1) The Commissioner has the following functions— (a) to provide information to victims of crime (and members of the immediate family of missing persons) about support services and assistance for victims of crime and such persons, and to assist victims of crime in the exercise of their rights, (b) to co-ordinate the delivery of support services for victims of crime and members of the immediate family of missing persons and to encourage the effective and efficient delivery of those services, (b1) to provide funding to victims groups approved by the Commissioner, (c) to promote and oversee the implementation of the Charter of Victims Rights, including by publishing codes, guidelines and other practical guidance on the implementation of the Charter, (d) to make recommendations to assist agencies to improve their compliance with the Charter of Victims Rights, including but not limited to conducting training and recommending changes to policies and procedures, (e) to receive complaints from victims of crime (and members of the immediate family of missing persons) about alleged breaches of the Charter of Victims Rights and to use the Commissioner's best endeavours to resolve the complaints, (f) to recommend that agencies apologise to victims of crime for breaches of the Charter of Victims Rights, (g) to conduct, promote and monitor training, public awareness activities and research on victims of crime, (h) to conduct reviews and inquiries, or both, on issues relating to victims of crime at the request of the Attorney General, (h1) to manage the Victims Register established under Part 8 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, (i) to consider, and determine, applications under this Act for victims support, (j) the functions conferred on the Commissioner under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. (2) This section does not affect the exercise of functions of the Secretary under the Government Sector Employment Act 2013 with respect to the Commissioner. 11 Inquiries and investigations The Commissioner may, in connection with the exercise of the functions of the Commissioner under this Act, make such inquiries and undertake such investigations as the Commissioner considers necessary. 12 Powers of Commissioner to compel production of information (1) The Commissioner may, by notice in writing, request that any person provide, or require any Government agency to provide, the Commissioner with information (including documents) relevant to the exercise of the Commissioner's functions under this Act. (2) Any such notice may specify a day on or before which the information is required to be provided. (3) A person who provides the Commissioner with information that the person knows is false or misleading in a material particular is guilty of an offence. Maximum penalty—100 penalty units, in the case of a corporation, and 50 penalty units in any other case. (4) If documents are given to the Commissioner under this section, the Commissioner— (a) may take possession of, and make copies of or take extracts from, the documents, and (b) may keep possession of the documents for such period as is necessary for the purposes of exercising the function concerned, and (c) during that period must permit the documents to be inspected at all reasonable times by the persons who would be entitled to inspect them if they were not in the possession of the Commissioner. (5) A Government agency is not required to provide any information under this section if there is an overriding public interest against the disclosure of the information for the purposes of the Government Information (Public Access) Act 2009 or if access to the information would otherwise be denied under that Act. 13 Report to Parliament (1) The Commissioner may, at any time, make a special report to the Minister for presentation to Parliament on any matter arising in connection with the exercise of the Commissioner's functions, including in connection with the implementation of the Charter of Victims Rights. (2) Without limiting subsection (1), the Commissioner may make such a special report with respect to any breaches by an agency of the Charter of Victims Rights, if the Commissioner considers it to be appropriate to do so. (3) Before making the report, the Commissioner is to advise the head of the agency concerned and consult that head. (4) A copy of a report given to the Minister under subsection (1) is to be laid before Parliament within 14 sitting days after it is given. (5) The annual report of the work of the Commissioner is to be included in the annual report of the Department of Justice. Division 2 Victims Support Fund 14 Victims Support Fund (1) There is established in the Special Deposits Account a fund called the Victims Support Fund. (2) The Secretary has the control and management of the Fund. (3) The Secretary may invest money in the Fund— (a) if the Department of Justice is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Department of Justice is permitted to invest money under that Part, or (b) if the Department of Justice is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way authorised for the investment of trust funds. 15 Payments into Fund The following are to be paid into the Fund— (a) all proceeds confiscated under the Confiscation of Proceeds of Crime Act 1989, (b) all money required by the Criminal Assets Recovery Act 1990 to be credited to the Fund, (c) all money payable under Part 5 that is recovered under this Act or under the Fines Act 1996, (c1) all money recovered under Part 7, (d) all money advanced to the Fund by the Treasurer, or appropriated by Parliament, for the purposes of this Act, (e) all other money required by or under this or any other Act to be paid into the Fund, (f) all fines paid for offences under section 89 (Avoidance of liabilities). 16 Payments from Fund The following are to be paid from the Fund— (a) all payments with respect to victims support under this Act, (b) all expenses incurred by the Commissioner and other staff in the exercise of their functions under this Act, (c) all expenses incurred by the Commissioner and the Victims Advisory Board under this Act and any other expenses incurred in the provision of victims support services (including Tribunal and other administration expenses) approved by the Minister, (c1) any funding provided to victims groups approved by the Commissioner, (d) all fees to which the NSW Trustee and Guardian is entitled under section 53 of the Confiscation of Proceeds of Crime Act 1989, (d1) all expenses incurred by the Commissioner of Fines Administration that are payable to the Commissioner of Fines Administration under an arrangement referred to in section 16A, (d2) all set-off amounts that are payable to the Commissioner of Fines Administration under section 45, (e) all expenses incurred in the administration or management of the Fund, (f) all other payments required by or under this Act to be paid from the Fund. 16A Arrangements with Commissioner of Fines Administration (1) The Commissioner may enter into arrangements with the Commissioner of Fines Administration with respect to the recovery by the Commissioner of Fines Administration of amounts payable under orders for restitution within the meaning of Part 5. (2) Without limiting subsection (1), the arrangements may provide for the reimbursement from the Fund of expenses incurred by the Commissioner of Fines Administration in connection with the recovery of those amounts. Part 4 Victims Support Scheme Division 1 Preliminary 17 Object of part The object of this part is to establish a scheme to provide support for— (a) victims of acts of violence, and (b) victims of acts of modern slavery, and (c) family victims of road crime. 18 Definitions In this Act— act of modern slavery—see section 19A. act of violence—see section 19. approved means approved by the Commissioner. approved counselling services—see section 31. family victim—see section 22. financial support means the following— (a) financial assistance for immediate needs under section 26 (1) (b) or 29 (1) (b), (b) financial assistance in respect of economic loss under section 26 (1) (c), 27 or 29 (1) (d), (c) funeral expenses under section 29 (1) (c). grievous bodily harm includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm. injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property. primary victim—see section 20. recognition payment—see section 34. road crime—see section 19AB. secondary victim—see section 21. sexual assault and domestic violence—see section 19 (8). victim of an act of violence means a primary victim, secondary victim or family victim of the act of violence. victims support means support in the form of approved counselling services, financial support or a recognition payment under the Scheme. 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. (3A) To avoid doubt, a road crime is not an act of violence except in the circumstances provided for in section 25(2A) and (2B). (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. 19A Meaning of "act of modern slavery" (1) In this Act, act of modern slavery means an act or series of related acts committed in New South Wales, whether committed by one or more persons— (a) that has apparently occurred in the course of commission of an offence or other conduct constituting modern slavery within the meaning of the Modern Slavery Act 2018, and (b) that has involved subjecting one or more persons to any form of slavery, servitude or forced labour of a child within the meaning of section 93AB of the Crimes Act 1900, and (c) that has resulted in injury or death to one 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) Except as provided by subsections (4) and (5), a series of related acts is 2 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. (4) 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. (5) 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. (6) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of modern slavery. 19AB Meaning of "road crime" (1) In this Act, a road crime means— (a) an act or series of acts, committed by a person in New South Wales, that— (i) involved a motor vehicle, and (ii) caused the death of another person, and (b) an act in relation to which one of the following applies— (i) charges have been laid against the alleged offender for an offence in relation to the act or series of acts, (ii) charges cannot be laid because the alleged offender has died or cannot be identified but, on the balance of probabilities, an offence has apparently occurred, (iii) circumstances prescribed by the regulations. (2) The regulations may prescribe circumstances in which an act or series of acts does not constitute a road crime. 20 Meaning of "primary victim" (1) A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act. (2) A primary victim of an act of violence or act of modern slavery extends to a person who is injured, or dies, as a direct result of— (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act. 21 Meaning of "secondary victim" (1) A secondary victim of an act of violence is a person who is injured as a direct result of witnessing the act of violence that resulted in the injury to, or death of, the primary victim of that act. (2) A secondary victim of an act of violence extends to a person who is injured as a direct result of subsequently becoming aware of the act of violence that resulted in the injury to, or death of, the primary victim of that act, but only if— (a) the person is the parent or guardian of the primary victim of that act, and (b) the primary victim was under the age of 18 years at the time of that act, and (c) the person did not commit that act. The person is taken, for the purposes of this Act, to have witnessed the act of violence. (3) For the purposes of this section, a primary victim does not include a person who is a primary victim only because of the operation of section 20 (2). 22 Meaning of "family victim" (1) A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act. (1A) A family victim of a road crime is a person who is, at the time the road crime is committed, a member of the immediate family of a person who has died as a result of the road crime. (2) It is immaterial whether or not the person suffers an injury in connection with the act of violence or death. (3) A member of the immediate family of a primary victim or a person who dies as a result of a road crime is— (a) the victim's or person's spouse, or (b) the victim's or person's de facto partner who has cohabited with the victim or person for at least 2 years, or (c) a parent, guardian or step-parent of the victim or person, or (d) a child or step-child of the victim or person or some other child of whom the victim or person is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim or person. Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. Division 2 Eligibility for support 23 Eligibility for support (1) A primary victim of an act of violence or act of modern slavery is eligible for the support under the Scheme described in section 26. (2) A parent, step-parent or guardian who is caring for a child who is a primary victim of an act of violence or act of modern slavery is eligible for the support under the Scheme described in section 27. (3) A secondary victim of an act of violence is eligible for the support under the Scheme described in section 28. (4) A family victim of an act of violence is eligible for the support under the Scheme described in section 29. (5) A family victim of a road crime is eligible for the support under the Scheme described in section 29A. 24 Death of victim (1) A primary victim who dies ceases to be eligible for support under the Scheme, but a family victim may then become eligible for support under the Scheme. Any pending application for support made by or on behalf of the primary victim does not survive the death of the primary victim. (2) A family victim who dies ceases to be eligible for victims support. Any pending application made by or on behalf of a family victim does not survive the death of the family victim. 25 Persons not eligible for support (1) Claimants for court compensation awards A person is not eligible to receive victims support in respect of an act of violence or act of modern slavery if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 6 or if the person's application for such compensation is pending. (2) Motor vehicle accidents A person is not eligible to receive victims support in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Compensation Act 1999. Note— A person who is a family victim of a road crime is eligible for approved counselling services. (2A) Exception to ineligibility for motor vehicle accidents Despite subsection (2), a family victim is eligible to receive victims support in respect of an act of violence referred to in that subsection if— (a) the act of violence took the form of the intentional killing of the primary victim, and (b) a person has been charged with murder in relation to the death of the primary victim. (2B) Exception to ineligibility for motor vehicle accidents Despite subsection (2), a primary victim and a family victim are eligible to receive victims support in respect of an act of violence that was a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002. (3) Offenders A person is not eligible to receive victims support— (a) in relation to an act of violence if the act occurred while the person was engaged in behaviour constituting an offence, or (b) if the person is a family victim of a road crime because the person is a member of the immediate family of the alleged offender. (3A) However, if a person is a family victim of a road crime because the person is a member of the immediate family of the alleged offender and another person (the victim) who died as a result of the road crime, the person is eligible to receive victims support in relation to the victim. (4) Convicted inmates A person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence or act of modern slavery if it occurred while the person was imprisoned as a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (unless the person was imprisoned only because of the person's failure to pay a pecuniary penalty). (5) Exception to ineligibility of convicted inmates However, any such convicted inmate may, in special circumstances, receive victims support. Any such support is not to be given unless the Commissioner is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted inmates. (6) Without limiting subsection (5), the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence or act of modern slavery concerned. (7) Regulations may be made for the purposes of this section prescribing the persons, or class of persons, who are not eligible to receive victims support in respect of an act of violence, an act of modern slavery or a road crime. Division 3 Composition of support 26 Composition of support—primary victims (1) The support under the Scheme for which a primary victim of an act of violence or act of modern slavery is eligible comprises the following— (a) approved counselling services with respect to that act of violence or act of modern slavery, (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 or act of modern slavery, 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 or act of modern slavery of a kind described in the regulations, (d) if a recognition payment is payable under this Part in respect of the act of violence or act of modern slavery—that recognition payment. (2) Financial assistance for which a primary victim of an act of violence or act of modern slavery 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 or act of modern slavery. 27 Composition of support—parent, step-parent or guardian of child primary victim (1) A parent, step-parent or guardian who is caring for a child who is the primary victim of an act of violence or act of modern slavery is eligible for financial assistance of up to a maximum amount in total prescribed by the regulations for the economic loss arising as a direct result of that act of violence or act of modern slavery of a kind described in the regulations. (2) Financial assistance for which a parent, step-parent or guardian is eligible under this section is reduced by the total amount paid or approved for payment to the primary victim under section 26 (1) (c) in respect of that act of violence or act of modern slavery. 28 Composition of support—secondary victims The support under the Scheme for which a secondary victim of an act of violence is eligible comprises approved counselling services with respect to the act of violence. 29 Composition of support—family victims of acts of violence (1) The support under the Scheme for which a family victim of an act of violence is eligible comprises the following— (a) approved counselling services, (b) financial assistance for immediate needs up to a maximum amount in total prescribed by the regulations to cover expenses of 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 (less any amount payable under section 47), (c) a payment of up to a maximum amount in total prescribed by the regulations for funeral expenses actually incurred, or reasonably likely to be incurred, by the family victim for the funeral of the primary victim who died as a result of that act of violence (less any amount payable under section 47), (d) financial assistance of up to a maximum amount in total prescribed by the regulations for economic loss suffered by the family victim as a direct result of that act of violence of a kind described in the regulations. Note— A person who is a family victim of a road crime is not eligible for support under the Scheme under this section but is eligible for support under section 29A. (2) If more than one family victim is eligible for a payment under subsection (1) (c) in relation to the same act of violence, the total amount that may be granted for funeral expenses to all such family victims is the maximum amount prescribed by the regulations, less any amount payable under section 47. Note. Section 47 provides for direct reimbursement of funeral expenses to persons other than family victims. (3) In addition, if a recognition payment is payable under this Part in respect of the relevant act of violence, each family member who is a parent, step-parent or guardian or a dependent family member is eligible to be given that recognition payment. (4) A family victim is a dependent family member for the purposes of this section if— (a) the person was financially dependent on the primary victim at the relevant time, or (b) the person is a child of the primary victim born after the death of the victim where, had the child been born in the victim's lifetime, the child would have been a financially dependent family member of the victim by virtue of paragraph (a). 29A Composition of support—family victims of road crimes The support under the Scheme for which a family victim of a road crime is eligible is approved counselling services. 30 Financial assistance (1) Financial assistance under this Part may take the form of a grant, allowance, refund of expenditure, direct payment of an invoice, or any other form of financial assistance that the Commissioner may approve generally, or in a particular case or class of cases. (2) Financial assistance is not payable to a victim of an act of violence or act of modern slavery or the parent, step-parent or guardian of a victim, to the extent that the victim, parent, step-parent or guardian has received, or is entitled to receive, payment for that loss arising from that act of violence or act of modern slavery under any insurance or agreement or arrangement under any other Act or law. (3) The regulations may make provision for or with respect to any of the following— (a) the particular kinds of expenses for immediate needs or economic loss for which a person may or may not be given financial assistance under this Part, (b) the maximum amount that a person may be given under this Part in respect of a particular kind of expense for immediate needs or for economic loss, (c) the circumstances in which a person may be given financial assistance, (d) the maximum amount that a person may be given under this Part in respect of a particular kind of economic loss. 30A Victims support where act is combination of act of violence, act of modern slavery or road crime (1) This section applies if an act is 2 or more of the following— (a) an act of violence, (b) an act of modern slavery, (c) a road crime. (2) A victim is eligible for each type of support under the Scheme only once in relation to the act. Examples— If an act is both an act of violence and an act of modern slavery, the victim is eligible for financial assistance only once in relation to the act. If an act is a road crime for which a family victim receives approved counselling services and the act is later classified as an act of violence in accordance with section 25(2A), the family victim would not be eligible for further approved counselling services but would be eligible for other forms of support under section 29. Division 4 Approved counselling services 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 or act of modern slavery, or a family victim of a road crime, 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. (2) The Commissioner may— (a) suspend or revoke an approval, and (b) make an approval subject to conditions, and (c) vary or revoke any condition of an approval or impose additional conditions on an approval. 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 or acts of modern slavery, or family victims of road crimes (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. (2) The regulations may make provision for or with respect to the provision of approved counselling services, and authorisation of payments for such services, to persons who are relatives of primary victims who have died as a result of an act of violence or act of modern slavery, or relatives of persons who died as a result of road crimes, but who are not family victims within the meaning of this Act. 33 Amount of payments (1) Payment for or in relation to approved counselling services under this Act may take the form of a grant, allowance, refund of expenditure, direct payment of an invoice, or any other form of payment that the Commissioner may approve generally, or in a particular case or class of cases. (2) The amount of the payment for approved counselling services is the amount, or amount determined in the manner, prescribed by the regulations. Division 5 Recognition payments 34 Definitions In this Division— category of recognition payment means a category of recognition payment described in section 35. recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery. series of related acts has the same meaning as in section 19 (4). sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8). sexual touching or sexual act means 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. 35 Categories of recognition payment (1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide. (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds— (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following— (a) a sexual assault other than one referred to in subsection (2) (b), (b) an attempted sexual assault resulting in serious bodily injury, (c) an assault resulting in grievous bodily harm, (d) physical assault of a child that is one of a series of related acts. (4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following— (a) sexual touching or sexual act, (b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b), (c) a robbery involving violence, (d) an assault (not resulting in grievous bodily harm). 36 Recognition payments (1) Recognition payments are payable as follows— (a) a category A recognition payment of an amount prescribed by the regulations is payable— (i) to each family victim (other than a child referred to in subparagraph (ii)) who, immediately before the death of a primary victim as a result of an act of violence or act of modern slavery described in section 35 (1), was financially dependent on the primary victim, and (ii) to each child of a primary victim who, immediately before the death of the primary victim as a result of an act of violence or act of modern slavery described in section 35 (1), was under the age of 18 years, (b) a category A recognition payment of an amount prescribed by the regulations is payable to the following who were not, immediately before the death of the primary victim concerned, financially dependent on a primary victim who died as a result of an act of violence or act of modern slavery described in section 35 (1)— (i) a parent, step-parent or guardian of the primary victim, (ii) any person who, immediately before the death of the primary victim, was the victim's spouse or de facto partner as referred to in section 22 (3) (b), (c) a category B recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence or act of modern slavery described in section 35 (2), (d) a category C recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence or act of modern slavery described in section 35 (3), (e) a category D recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence or act of modern slavery described in section 35 (4). (2) Only one recognition payment is payable to a single victim in respect of a series of related acts of violence or acts of modern slavery against the victim. 37 Regulations The regulations may make provision for or with respect to— (a) the kind of acts of violence or acts of modern slavery in respect of which a particular category of recognition payment may be made under this Division, or (b) the circumstances in which a recognition payment is payable under this Division. Division 6 Applications for victims support 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 or act of modern slavery, (a1) a family victim of a road crime, (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. 39 Documentary evidence (1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form. (2) Without limiting subsection (1), the documentary evidence to be required— (a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence or act of modern slavery, and (b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is— (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence or act of modern slavery, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence or act of modern slavery. (3) An application for financial assistance under section 26 (1) (c), 27 or 29 is to give full particulars of any economic loss for which the assistance is sought. (4) The application is to include— (a) in the case of actual expenses—receipts, invoices or other approved forms of substantiation of the expenditure incurred or to be incurred, or (b) in the case of actual loss of earnings—the name and address of the employer, the period of absence from work and a statement from the employer substantiating those particulars. (5) In this section— agency includes a non-government agency funded by the Commonwealth to provide support services to victims of crime. 40 Time for making, and duration of, applications (1) Except as provided by this section, an application for financial support or a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence or act of modern slavery occurred, within 2 years after the day on which the child concerned turns 18 years of age. (2) An application for financial support or a recognition payment may be made by a family victim more than 2 years after the relevant act of violence that resulted in the death of the primary victim occurred if it was only established (whether or not by a court) that the primary victim died as a direct result of the relevant act of violence subsequently to the occurrence. (3) In the circumstances described in subsection (2), an application for financial support or a recognition payment may be duly made within 2 years after it is established that the primary victim died as a direct result of the relevant act of violence. (4) (Repealed) (5) An application for a recognition payment in respect of an act of violence or act of modern slavery involving domestic violence, child abuse or sexual assault must be duly made within 10 years after the relevant act of violence or act of modern slavery occurred or, if the victim was a child when the act of violence or act of modern slavery occurred, within 10 years after the day on which the child concerned turns 18 years of age. (6) Claims may continue to be made under an application that is duly made in respect of an act of violence or act of modern slavery until whichever of the following first occurs— (a) the expiration of the period of 5 years after the application is made, (b) the total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence or act of modern slavery has been given. (7) This section (other than subsection (6)) does not apply to an application for financial support, being for financial assistance of a kind specified in the Victims Rights and Support Regulation 2019, clause 10(3)(b) or (d), or a recognition payment for a person who is a primary victim of an act of violence that occurs in the course of the commission of a sexual offence against the person when the person is under 18 years of age. There is no time limit on when such an application can be made. 41 Withdrawal of application (1) An applicant for victims support may withdraw his or her application at any time before the application is determined by written notice to the Commissioner. (2) The withdrawal of an application for victims support under this section does not prevent the applicant from making another application for support. 41A Lapsing of application if evidence to support application not provided (1) An application for victims support lapses if— (a) 12 months has passed since the applicant was first requested to provide evidence to support the application, and (b) the applicant has, during that 12-month period, been requested on at least 3 separate occasions to provide that evidence, and (c) the Commissioner decides that the applicant does not have a valid reason for failing to provide that evidence. (2) Subsection (1) applies regardless of whether any claim under the application has been determined. (3) The Commissioner is to notify the applicant that the application has lapsed under this section. (4) The lapsing of an application for victims support under this section does not prevent the applicant from making another application for victims support. 42 Consideration of applications (1) Each duly made application for victims support is to be considered by the Commissioner. (2) The Secretary or any other Public Service employee may not direct, overrule or interfere with a determination of the Commissioner with respect to an application for victims support. 43 Determination of applications (1) After considering an application for victims support, the Commissioner must determine the application— (a) by approving the giving of the victims support, or (b) by dismissing the application. (2) The Commissioner may defer the determination of the application if the Commissioner is of the opinion that there are relevant matters requiring further consideration or clarification. Note. Section 11 enables the Commissioner to carry out inquiries and investigations with respect to applications. (3) The Commissioner must not approve the giving of victims support unless satisfied that the person to whom the application relates— (a) is one of the following persons— (i) a primary victim, secondary victim or family victim of an act of violence or act of modern slavery, (ii) a parent, step-parent or guardian who is caring for a child who is a primary victim of an act of violence or act of modern slavery, (iii) a family victim of a road crime, and (b) is eligible to receive the victims support concerned. (4) Written notice is to be given to the applicant of the determination of the application. (5) If approval is given, the notice must include a statement of the amount (if any) payable by way of financial support (including whether for immediate needs or economic loss, or both) or by way of recognition payment, together with a statement of the reasons for approving the giving of those amounts. (6) If the application is dismissed, the notice must include a statement of the reasons for the dismissal. (7) The Commissioner may, only on the Commissioner's own initiative, amend a notice given under this section to correct an error in the notice. 44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment (1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following— (a) for a victim of an act of violence or an act of modern slavery—any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, (b) for a family victim of a road crime—any behaviour, including past criminal activity, attitude or disposition of the person who died as a result of the road crime that directly or indirectly contributed to the person's death, (c) (Repealed) (d) whether the victim participated in the commission of the act of violence, act of modern slavery or road crime, encouraged another person to commit the act of violence, act of modern slavery or road crime or otherwise gave assistance to any person by whom the act of violence, act of modern slavery or road crime was committed, (e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence, act of modern slavery or road crime or in the arrest or prosecution of any person by whom the act of violence, act of modern slavery or road crime was committed or alleged to have been committed, (f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence, act of modern slavery or road crime was committed, (g) such other matters as the Commissioner considers relevant. (2) (Repealed) (3) In determining the matter referred to in subsection (1) (f) in the case of an act of violence or act of modern slavery involving sexual assault or domestic violence, the Commissioner must have regard to the nature of the relationship between the victim and the person or persons by whom the act of violence or act of modern slavery is alleged to have been committed. (3A) In determining a matter referred to in subsection (1) or (2) in the case of an act of modern slavery, the Commissioner must have regard to the nature of the relationship between the victim and the person or persons by whom the act of modern slavery is alleged to have been committed. (4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to— (a) any amount that has been paid to the person or that the person is entitled to be paid— (i) by way of damages awarded in civil proceedings, or (ii) under any other Act or law (including workers compensation), or (iii) under any insurance or other agreement or arrangement, and (b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person, in respect of the act of violence or act of modern slavery to which the application for financial support or a recognition payment relates. (5) If the Commissioner is satisfied that the applicant may be entitled to workers compensation (or payment in the nature of workers compensation) in respect of the act of violence or act of modern slavery to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to workers compensation have been determined. (6) If the Commissioner is satisfied that the applicant may be entitled to payments under the police officer support scheme under the Police Act 1990, Part 9B in respect of the act of violence or act of modern slavery to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to those payments have been determined. (6A) If the Commissioner is satisfied that