NSW victims' compensation denied for violence committed outside NSW

DRJ & Ors v Commissioner of Victims Rights & Anor [2021] HCASL 53; [2020] NSWCA 242 (24 March 2021)

Summary

Under the Victim Rights and Support Act 2013 (NSW) (VRSA), victims of an "act of violence" are eligible for compensation and for payment of counselling costs. The High Court of Australia has declined to grant special leave to appeal from a unanimous decision of the New South Wales Court of Appeal that, for the VRSA to apply, the "act of violence" must have been committed in New South Wales.

Facts

The plaintiffs were five women of Yazidi ethnicity who endured various acts of violence in 2014 in Syria and Iraq at the hands of an Australian citizen, Khaled Sharrouf.

Khaled Sharrouf was a resident of New South Wales who, after serving time for a terrorism offence, left Australia for Syria in December 2013 and became an ISIS fighter. The plaintiffs were captured by ISIS and kept as slaves by Mr Sharrouf. Mr Sharrouf is presumed to have died in a US airstrike near Raqqa, Syria in 2017.

Following their liberation, the plaintiffs were accepted as refugees by the various countries in which they now reside. None of the plaintiffs were Australian or had ever resided in Australia.

Procedural background

The plaintiffs applied to the Commissioner of Victims Rights for "victims support" under the VRSA, which does not clearly specify the extent to which it applies outside of New South Wales.

The Commissioner's delegate dismissed the application on the basis that, for the VRSA to apply, the relevant "act of violence" must have been committed in New South Wales. An internal review of that decision resulted in the dismissal of the plaintiffs' application for the same reason.

The plaintiffs then applied to the New South Wales Civil and Administrative Tribunal (NCAT) for review. Cole DCJ, Deputy President of NCAT, also dismissed the application, explaining that, for victims support to be available, the "act of violence" must occur within New South Wales and be closely identified with New South Wales. The plaintiffs appealed to the New South Wales Court of Appeal, and later sought leave to appeal to the High Court.

Decision

The Court of Appeal unanimously upheld the NCAT decision.

Leeming JA delivered the lead judgment, with which Meagher JA agreed without commentary. Bell P also agreed with Leeming JA but also highlighted the value of legislation providing clear guidance on the extraterritorial application of statutes.

Leeming JA rejected what he described as the NCAT's "mechanical [and] literalistic approach", which interpreted the Interpretation Act as requiring that each element of the statute (the act of violence, the apparent offence in the course of which it occurred, and the cause of death or injury) must be "in and of" New South Wales.

Instead, his Honour considered common law rules of interpretation and held that, for legislation that does not create an offence (for which different considerations apply), if there is no express provision connecting the statute to New South Wales, "the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales." His Honour held that the central focus of the VRSA is the "act of violence" and that, accordingly, the "act of violence" must occur in New South Wales. Other factors, such as the residence of the perpetrator or whether the act was an offence against New South Wales law, were neither necessary nor sufficient.

The plaintiffs unsuccessfully sought special leave to appeal to the High Court. The High Court refused on the basis that the decision "turned on the application of settled principles to a New South Wales statute" and that "there is insufficient reason to doubt the correctness of the Court of Appeal's reasoning".

Commentary

The direct consequence of the case is that the extraterritorial application of the VRSA has now been clarified: the Act applies if the "act of violence" occurred in New South Wales, and not otherwise.

The decision may mean, however, that the plaintiffs may not have access to an effective scheme for compensation, despite the international community's awareness and condemnation of atrocities committed by ISIS, including its organised slave trade.

The plaintiffs' lawyers have informed the press that they are considering complaining to the United Nations regarding Australia's duties under international law to provide an effective remedy for survivors of sexual violence and slavery. Relevantly, in handing down NCAT's reasons for decision, Cole DCJ had considered the plaintiffs' submissions regarding international law and held that the relevant instruments did not "impose an obligation upon Australia (or any other signatory) to create a compensation system for the compensation for victims of crime regardless of where in the world the crime may have occurred." The scope of Australia's obligations was not discussed by the Court of Appeal, as Leeming JA considered that the plaintiffs' submissions on that issue were "not greatly to the point". The plaintiffs had argued that an expansive approach to extraterritorial application was most consistent with international law, but his Honour considered that "there are many deserving victims of crime who do not quality for support under the scheme" and the question of where to draw the boundaries of eligibility "cannot be resolved at the much higher level of abstraction of purpose and cost".

The full case is available here.