The case for removing the requirement to separately prove injury in NSW Victims Support applications

Joint Position Statement

July 2022

We, the undersigned, call on the NSW Government to introduce legislation to remove the requirement to separately prove injury in NSW Victims Support applications by the end of 2022. We also call on the NSW Government to legislate better recognition of sexual violence, child sexual abuse, domestic violence, child abuse and modern slavery through higher recognition payments by 2023. The case for this is outlined below.

Current requirements for Victims Support – economic loss and recognition payment

The NSW Victims Support Scheme provides counselling and financial support to victim-survivors of violent crime in NSW.

In order to receive a “recognition payment” and/or financial assistance for economic loss, a victim-survivor must prove:

1. that they were the victim of an “act of violence”, and
2. that they were injured as a result. Injury can be physical or threats of physical injury and / or psychological injury or harm.

The applicant must prove their claim on the balance of probabilities. As a part of their application, applicants are required to produce two different sources of documentary evidence:

1. a report of the act of violence to police, government agency or a non-government organisation funded to provide support to victims of crime; and
2. a medical, dental or counselling report to verify actual injury has been sustained.

Additionally, to be successful with an application for financial assistance for economic loss full particulars of any economic loss must be provided.

Barriers to separately proving injury

The requirement to prove injury imposes a barrier upon victim-survivors accessing the support they are entitled to and need. This obligation to lodge two separate forms of documentary evidence means victim-survivors have to repeat their story to multiple people, compounding trauma, particularly for those who have experienced sexual violence, child sexual abuse, domestic violence, including child abuse or modern slavey. Further, the obligation causes delay in a process which could otherwise provide necessary and more timely supports to those who have sufficient evidence to prove they were the victim-survivor of an act of violence. Finally, it is offensive to ask a victim-survivor of, for example, sexual violence, child sexual abuse, domestic violence including child abuse or modern slavery, to prove that they were injured as a result of these acts or act of violence.

A trauma informed response should limit the requirements to prove eligibility for a scheme of supports to evidence which is absolutely necessary (that is, evidence of a standard of proof of reasonable likelihood of the acts of violence)[1] and provide a fast and responsive scheme. Further, a trauma informed response should focus on counselling for a therapeutic purpose which is important for many in their healing and recovery process and limit the times necessary for a victim-survivor to repeat their story.

The requirement to prove injury in Victims Support claims is no longer relevant or appropriate

The requirement to prove injury is an inheritance from the former Victims Compensation Scheme which included a compensation range for certain types of acts of violence and the ultimate payment based on an assessment of the severity of the injury. For example, a series of sexual assaults could receive a payment of between $25,000 to $50,000.

In 2013 the State's provision of support to victims of crime was radically overhauled. The Victims Compensation Scheme was closed and replaced with a new Victims Support Scheme. The new scheme is a break away from a compensation model, and amongst other goals aimed to better provide for the immediate needs of victim-survivors of violent crimes.[2]

In the current scheme, there is now a set amount awarded for each category of recognition payment, which is based on the type of crime committed (see table below). This means there is generally no need for any assessment of the severity of the injury. Financial assistance for economic loss is based on actual losses, not severity of injury.

The fact the violent crime was committed should therefore be sufficient to warrant “recognition”.

This is particularly important in relation to sexual violence, child sexual abuse, domestic violence, child abuse and modern slavery.

The long-term impacts of child sexual abuse, sexual violence, domestic violence, child abuse and modern slavery are well established. By their very nature, these crimes result in an injury. Injury can include harm to mental health, physical harm and impact on social, sexual and interpersonal functioning. [3][4][5]

The requirement to separately prove injury silences some victim-survivors and leaves them ineligible for Victims Support payments. It also disproportionately impacts on the most marginalised in society who may struggle to obtain evidence of injury. Finally, the requirement to separately prove injury delays many claims for Victims Support because it creates further hurdles and barriers to accessing a recognition payment, and ultimately exacerbates trauma.

We call on the NSW Government for the urgent removal of the requirement to separately prove injury.

Proposed amendment

The change could be achieved by amending section 19 of the Victims Rights and Support Act to delete “injury” as an element of the “act of violence” and making consequential amendments. This would impact all claimants, not just victim-survivors of sexual violence, child sexual abuse, domestic violence, child abuse and modern slavery.

In the alternative and at an absolute minimum, the change could be implemented by amending the definition of “act of violence” in section 19 of the Victims Rights and Support Act 2013, by which “sexual assault and domestic violence” and “modern slavery” are deemed to be “violent conduct” for the purposes of the definition of act of violence. We note child abuse is currently included within the definition of “sexual assault and domestic violence” in reference to section 19. We recommend child abuse be specifically named in the description of the definition so it reads “sexual assault and domestic violence and child abuse” to help further increase awareness of child abuse and to support the increasing focus on specifically considering the needs of the child or young person in their own right.

The amendment we propose would deem an act of sexual assault and/or domestic violence and/or child abuse and/or modern slavery to have resulted in an injury, removing the need to separately prove such injury.

The documentary evidence requirements outlined in section 39 of the Victims Rights and Support Act would need to be amended to remove the requirement for documentary evidence to establish injury. In the alternative and at an absolute minimum there would need to be an amendment that section 39 documentary evidentiary requirements to establish injury do not extend to victim-survivors of sexual assault, domestic violence, child abuse and modern slavery.

Aggravated injuries

If the victim-survivor wishes to access a recognition payment where there is an aggravating factor, for example, for a case of sexual assault that results in serious bodily injury or assault that has resulted in grievous bodily harm, the victim-survivor may still need to provide evidence of injury to establish aggravation. In these cases, the victim-survivor is eligible for a higher category of recognition payment if the aggravating circumstances are proved.

We strongly advocate there be an exception to this for “sexual assault resulting in serious bodily injury” in relation to child sexual abuse. For the purposes of the Victims Support Scheme all child sexual abuse should be deemed to result in serious bodily injury. Evidence of such harm is well known10 and should be acknowledged by only requiring (1) proof of the act of violence and (2) the age of the child at the time of the alleged offence.

We further advocate Category B recognition payments should be expanded to include domestic violence involving violence that is one of a series of related acts. This would mean victim-survivors of domestic violence can focus on proving act of violence, rather than also having to prove injury, such as grievous bodily harm.

Alternatively, the need to provide evidence to establish aggravation could be removed if the categories of recognition payment were overhauled. We have previously made submissions arguing that the recognition payments should better recognise child sexual abuse, sexual violence, domestic violence, child abuse and modern slavery. Overall, the financial awards are too small to recognise the devastating violence that has occurred. This would require a more significant legislative change.

We propose a phased approach, with the NSW Government introducing legislation to remove the requirement to separately prove injury in Victims Support applications by the end of 2022. In the second phase, the NSW Government legislates the better recognition of sexual violence, child sexual abuse, domestic violence, child abuse and modern slavery through higher recognition payments by 2023.

Why the need to make this change now

This matter needs to be addressed as a matter of priority and can not wait until the outcome of the Victims Rights and Support Act statutory review.

It is clear that sexual violence, child sexual abuse, domestic violence, child abuse and modern slavery always cause harm to the victim-survivor. It is also clear that the requirement to separately prove injury in Victims Support matters causes harm and trauma. It is also the case that in many applications for Victims Support, the need to separately provide injury causes delay in the resolution of a claim for Victims Support.

A solution which is both trauma-informed and efficient is to remove the need to separately prove injury for all matters, or at the very least for claims for sexual violence, child sexual abuse, domestic and family violence and abuse, child abuse and modern slavery.

For further information please contact Liz Snell, Women’s Legal Service NSW on ph: 8745 6900.

NOTES:

[1] The standard of proof of ‘reasonable likelihood’ is the standard of proof for the National Redress Scheme for Institutional Child Sexual Abuse

[2] New South Wales, Parliamentary Debates, Legislative Assembly, 7 May 2013, 32 (The Hon. Brad Hazzard)

[3] Judith Cashmore and Rita Shackel (2013) The long-term effects of child sexual abuse, CFCA Paper No. 11.

[4] Lori Haskell and Melanie Randall (2019) The Impact of Trauma on Adult Sexual Assault Victims, Canada: Justice Canada, p8

[5] Royal Commission into Family Violence (2016) Summary and Recommendations, p 158 – 164; Sara McLean, (2016) The effect of trauma on the brain development of children, CFCA Practice Resource

This joint statement has been developed with input across multi-disciplines and sectors. It is endorsed by:

Organisations

1. Women’s Legal Service NSW

2. ACON

3. Amelie Housing

4. Anti-Slavery Australia

5. Arise Foundation Australia

6. Australian Centre for Disability Law

7. Australian Graduate Women

8. Australian Lawyers for Human Rights

9. Australian Women Against Violence Alliance (AWAVA)

10. Barefoot Warrior Coaching

11. Blacktown Women's and Girls' Health Centre

12. Bondi Beach Cottage

13. Bonnie Support Services Ltd

14. Central Coast Community Legal Centre

15. Central Coast Community Women's Health Centre

16. Central Tablelands and Blue Mountains Community Legal Centre

17. Central West Women's Domestic Violence Court Advocacy Service Housing Plus

18. Community Legal Centres NSW

19. Domestic Violence NSW (DVNSW).

20. Enough is Enough Anti Violence Movement Inc.

21. Far West Community Legal Centre

22. Far West Women's Domestic Violence Court Advocacy Service

23. Fighters Against Child Abuse Australia

24. Full Stop Australia

25. Good Shepherd Australia New Zealand

26. Homicide Victims’ Support Group

27. Homelessness NSW

28. Hunter Community Legal Centre

29. Kingsford Legal Centre

30. Intellectual Disability Rights Service

31. knowmore

32. Leopard Consulting

33. Liverpool Women’s Health Centre

34. Lokahi Foundation

35. Macarthur Legal Centre

36. Marrickville Legal Centre

37. Mary’s House Services Limited

38. Maternity Choices Australia

39. Mid North Coast Legal Centre

40. Mission Australia Court Support Service

41. MSI Australia

42. Multicultural Disability Advocacy Association

43. Muslim Women Australia

44. National Aboriginal & Torres Strait Islander Women’s Alliance

45. National Older Women’s Network

46. National Rural Women’s Coalition

47. National Women’s Safety Alliance

48. Northern Rivers Community Legal Centre

49. Northern Rivers Women and Children's Services

50. North Western Sydney Women’s Domestic Violence Court Advocacy Service

51. NSW Council Of Social Service (NCOSS)

52. Older Women’s Network NSW

53. People with Disability Australia

54. Public Interest Advocacy Centre

55. Redfern Legal Centre

56. School of Law, Western Sydney University

57. Seniors Rights Service

58. Settlement Services International

59. Shoalcoast Community Legal Centre

60. Shoalhaven Women’s Health Centre

61. South West Sydney Legal Centre

62. Staying Home Leaving Violence Broken Hill

63. Staying Home Leaving Violence Wentworth

64. Survivors and Mates Support Network (SAMSN)

65. The Australian Psychological Society Limited

66. The Benevolent Society - Centre for Women's, Children's and Family Health

67. The Immigrant Women’s Speakout Association of NSW

68. The Royal Australian and New Zealand College of Psychiatrists (RANZCP) NSW Branch

69. The Salvation Army Trafficking and Slavery Safe House

70. The Shopfront Youth Legal Centre

71. The Women’s Cottage

72. University of Newcastle Legal Centre

73. Victims of Crime Assistance League (VOCAL)

74. Warra Warra Legal Service

75. WESNET

76. Western NSW Community Legal Centre

77. Western Sydney Community Legal Centre

78. Western Sydney Network for Law and Human Rights

79. Western Sydney University Justice Clinic

80. Western Women’s Legal Support

81. Wirringa Baiya Aboriginal Women's Legal Centre

82. Women’s and Girls’ Emergency Centre (WAGEC)

83. Women’s Health NSW

84. Women's Justice Network

85. Youth Action

86. Youth Law Australia

87. Zonta Club of the Blue Mountains Inc.

88. Ethnic Communities' Council of NSW.

Individuals

1. Luke Addinsall

2. Jasmine Baker

3. Tracey Booth, Professor, UTS Law

4. Professor Anna Cody, Dean School of Law, Western Sydney University

5. Associate Professor Azadeh Dastyari, Western Sydney University

6. Dr. Leticia Funston

7. Miranda Kaye, UTS Law Health Justice Centre

8. Honorary Associate Professor Lesley Laing, Sydney School of Education and Social Work, University of Sydney

9. Assoc Prof Terri Libesman, UTS Law

10. Amanda Morgan, Survivor Advocate and Founder of Make A Seat Australia

11. Jacqueline Price, National Union of Students Women’s Department

12. Professor Catherine Renshaw, Western Sydney University

13. Dr Amie Steel and Dr Abela Mahimbo, Public Health Association of Australia Women’s Health Special Interest Group

14. Catalina Valencia

15. Dr Jane Wangmann, Associate Professor, UTS Law

16. Professor Jan Breckenridge, Academic Co-Convenor Gendered Violence Research Network, UNSW Sydney

17. Scientia Associate Professor Kyllie Cripps, Academic Co-Convenor Gendered Violence Research Network, UNSW Sydney

18. Belinda Harris

19. Shakti Srikanth

20. Gabrielle Sheehan

21. Martina, Social worker

22. Isabelle Brooks

23. Liz Smith, Mountains Outreach Community Service

24. Paige Thurlow-Want, Youth Worker Mountains Youth Services Team

25. Marion Gray

26. Kristian Judge, Case manager Mountains Youth Services Team

27. Geeta

28. Laura Vidal Consultant, Doctoral Researcher Laura Emily Consulting, Monash University

29. Emma Mears, HRBP, The Benevolent Society

30. Melanie Lovelock

31. Kirsty Graham, Administration, Blue Mountains Women's Health and Resource Centre

32. Liz Mulder

33. Sonda Mitchell, Zonta Club of the Blue Mtns

34. Ursula Scott

35. Lindy, Mental Health Social Worker, Private clinical practice

36. Elaine Manners, Retired Teacher, Zonta

37. Samantha Watkins, Social Worker

38. Cheryl Lee Watkins, Retired Intake Worker - Counselling / Mediation Uniting - Unifam

39. Elaine Lawler, Client Relationship Manager, Active

40. Amanda Worgan

41. Rhianna Keen

42. Doris Daniels

43. Sean Bowes

44. Karen Tuxford

45. Emma Brooks

46. Sara Gruber, Youth Worker

47. Kristy Darshan

48. Shayne Travers, SLSO, Department of Education

49. Cathy Oddie, Victim Representative, Victims of Crime Consultative Committee

50. Fiona Koutsoukis, Counsellor

51. Gilbert Buchanan, Retired

52. Cherie Brandon, Health Promotion Worker, Blue Mountains Women's Health & Resource Centre

53. James Walker

54. Gill Oxley, Student, Charles Sturt University

55. Melissa Banks

56. Amanda Horton-Hallett

57. Amelia Filmer-Sankey, Case Manager, Stepping Stone House

58. Mariella Attard

59. Emmalene Prasad, Health Education Officer, NSW Health

60. Michelle Plummer

61. Julua Hameld, Solicitor

62. Shaun Ryan

63. Leah Hutton, Early Intervention Case Management, Mountains Youth Services Team

64. Shannon Said, Lecturer, Excelsia College

65. Nimo, Independent Assistant Living

66. Tracey Macaulay

67. Fidelity Betts, Manager, The Benevolent Society

68. Del Gaudry, Member, Blue Mountains Zonta

69. Maree Cairns, Zonta Club of the Blue Mountains

70. Flinn Donovan, Manager of new programs for Aboriginal, LGBTQAI+ & CALD peoples MYST, Mountains Youth Service Team

71. Kristin Alexander, Social Worker

72. Krsna Mayshack-Mendero, Social Worker, Lismore Women’s Health and Resource Centre

73. Isabel Pavlich-Miles

74. Astrid Perry-Indermaur, Head of Women, Equity & DFV SSI

75. Diann Rodgers-Healey (PhD), Director, Australian Centre for Leadership for Women