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 (2) (Repealed) Part 2 Victims rights Division 1 Preliminary 4 Object of Part The object of this Part is to recognise and promote the rights of victims of crime. 5 Meaning of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 pe