acs deed of agreement_australia 2017-2020 · web viewwhere a word or phrase is given a defined...

COMMISSIONER OF VICTIMS RIGHTS

(“Commissioner”)

and

[INSERT NAME OF APPROVED COUNSELLOR]

(“Approved Counsellor”)

DEED OF AGREEMENT FOR

APPROVED COUNSELLING SERVICES

(FOR VICTIMS RESIDING IN AUSTRALIA)

Table of Contents

1. DEFINITIONS AND INTERPRETATION.............................................................................32. TERM...................................................................................................................................63. APPROVED COUNSELLOR'S OBLIGATIONS...................................................................64. COMMISSIONER’S OBLIGATIONS..................................................................................115. RELATIONSHIPS...............................................................................................................126. EXCLUSIONS....................................................................................................................127. INDEMNITY........................................................................................................................138. INSURANCE......................................................................................................................149. KEEPING OF RECORDS..................................................................................................1410. SPECIAL CONDITIONS.....................................................................................................1511. SUSPENSION OF SERVICES..........................................................................................1512. TERMINATION...................................................................................................................1613. COMPLAINTS AND DISPUTE RESOLUTION..................................................................1714. PROMOTION AND ADVERTISEMENT.............................................................................1815. GENERAL..........................................................................................................................1816. INCONSISTENCY..............................................................................................................1917. REPRESENTATIONS........................................................................................................1918. NOTICES...........................................................................................................................19

SCHEDULE 1 Agreement DetailsSCHEDULE 2 Fees and PaymentSCHEDULE 3 Statement of Fitness to Provide Counselling

Victims Services Approved Counselling Services

THIS DEED OF AGREEMENT is made on ……… of ………………………. 20…….. .

Between1. COMMISSIONER OF VICTIMS RIGHTS, more fully described in the Agreement Details

(the “Commissioner”) and;

2. [INSERT NAME OF APPROVED COUNSELLOR], more fully described in the Agreement Details (the “Approved Counsellor”)

Recitals

A. Section 31(1)(a) of the Victims Rights and Support Act 2013 (NSW) (the “VRS Act”) provides that the Commissioner may approve professional counsellors who may provide counselling services for the purposes of the VRS Act.

B. Subject to the Approved Counsellor and the Commissioner entering into this Deed of Agreement, the Approved Counsellor has been approved, pursuant to section 31 of the VRS Act, to provide the Services.

C. The Approved Counsellor agrees to provide the Services in accordance with the terms and conditions of this Agreement, which includes the Practice Standards.

D. The parties agree that the authorisation of any payments by the Commissioner to the Approved Counsellor for the provision of the Services will be made in accordance with the provisions of Part 4, Division 4 of the VRS Act, Part 2 of the Victims Rights and Support Regulation 2013 (NSW) (the “VRS Regulation”) and subject to this Agreement.

It is agreed as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Deed of Agreement, the parties agree that the following definitions apply unless the contrary intention appears:

"Agreement" means this Deed of Agreement including all Schedules.

“Agreement Details” means the details contained in Schedule 1.

"Approved Counsellor" means the professional counsellor described in Item 2 of the Agreement Details and who is a party to this Agreement.

“Approved Counselling Services” means the counselling services generally described as “approved counselling services” in Part 4 of VRS Act which are to be provided by the Approved Counsellor to a client as part of the Victims Support Scheme and in accordance with the Practice Standards. For the purposes of this Agreement, they shall be referred to as the “Services”. The Services, as referred to throughout this Agreement, are more fully and specifically described in the Practice Standards.

“client” means the victim to whom the Approved Counsellor will provide the Services.


“Clinical Supervisor” means a registered psychologist, qualified social worker, clinical psychologist or psychiatrist who is accredited by the appropriate Australian professional body or registration body who engages in ongoing supervision of the Approved Counsellor.

“Charter of Victims Rights” means the NSW Charter of rights of victims of crime set out in section 6 of the VRS Act.

“Commencement Date” means the date this Agreement commences as specified in clause 2.1.

"Commissioner" means the Commissioner of Victims Rights more fully described in Item 1 of the Agreement Details and who is a party to this Agreement.

"Commissioner's Materials" means any documentation, information or material supplied by the Commissioner or Victims Services to the Approved Counsellor by whatever means;

“Complaints Handling Guidelines” means the Victims Services’ Complaints Handling Guidelines, prepared by Victims Services and amended from time to time by Victims Services, the terms of which are incorporated into this Agreement in their entirety by reference.

“Confidential Information” of a party means any information disclosed by that party to the other, or which is acquired by the other, whether before, on or after the commencement of this Agreement, that:

(a) is the Commissioner’s Materials; or

(b) is by its nature confidential; or

(c) is designated as confidential by either party; or

(d) the other party knows or ought to know is confidential,

but does not include information which:

(e) is or becomes public knowledge other than by breach of this Agreement;

(f) is in the lawful possession of the other party without restriction in relation to disclosure before the date of receipt of the information; or

(g) is required to be disclosed pursuant to law, government policy or legal process.

"Fees" means the fees referred to in Clause 4.2 and described in Schedule 2 of this Agreement;

“financial support” means financial assistance for immediate needs under section 26 (1) (b) or 29 (1) (b) of the VRS Act, and financial assistance in respect of economic loss under section 26 (1) (c), 27 or 29 (1) (d of the VRS Act.“Personnel” means the employees, contractors or agents of that party. For the avoidance of doubt this includes, in the case of the Approved Counsellor, any person who may be engaged (for remuneration or otherwise) by the Approved Counsellor to assist with secretarial, clerical and administrative functions relating to the provision of the Approved Counselling Services under this Agreement.“Practice Standards” means the Victims Services Practice Standards for Approved Counsellors prepared by Victims Services and amended from time to time by Victims Services, the terms of which are incorporated into this Agreement in their entirety by reference. The Practice Standards has been developed to provide information and guidance to Approved Counsellors about various matters relating to the Services, including:


(a) the policies, guidelines and procedures applicable to the provision of the Services;

(b) the roles, responsibilities and service delivery requirements for Approved Counsellors in providing the Services; and

(c) requisite standards and codes of conduct applicable to Approved Counsellors.

The Practice Standards sets out the principles, expectations and standards of practice required of Approved Counsellors to provide a high quality, ethical, professional counselling service to victims of acts of violence as part of the Victims Support Scheme and in accordance with the terms of this Agreement.

“Professional Advisory Panel” means the panel that provides advice and recommendations to the Commissioner in relation to the Approved Counselling Services.

“Report” means the written reports which Approved Counsellors are required to write and submit in their provision of the Services and in accordance with the form, requirements and timeframes specified in the Practice Standards.

"Services" means the Approved Counselling Services.

“Statement of Fitness” means the form of statement titled “Statement of Fitness to Provide Counselling” contained in Schedule 3 to be signed by the Approved Counsellor prior to the Commencement Date that confirms that he/she is fit to provide the Services;

“Term” means the duration of the Agreement as defined in clause 2.2.

"victim" has the same meaning as given to the term “victim” in clause 4 of the VRS Regulation (to be read in conjunction with the meaning given to “victim of an act of violence” in Part 4, Division 1 of the VRS Act);

“Victims Support Fund” means the fund established under section 14 of the VRS Act.

“Victims Services” is a Business Unit of the Department of Justice in the State of New South Wales.

“Victims Support Scheme” means the scheme established under Part 4 of the VRS Act.

“VRS Act” means the Victims Rights and Support Act 2013 (NSW).

“VRS Regulation” means the Victims Rights and Support Regulation 2013 (NSW).

“Working With Children Check” means the prerequisite screening check for any person engaged in paid and unpaid child-related work in NSW and referred to in the Child Protection (Working with Children) Act 2012. This check includes a national criminal history check and review of reported workplace misconduct. The parties acknowledge that the Child Protection (Working with Children) Act 2012 imposes mandatory requirements and restrictions for child-related work including, among others, that a worker must not engage in child related work unless the worker holds a working with children check clearance for a class applicable to the work or there is a current application by the worker to the Commission for one (s. 8). Information on how to apply for a Working With Children Check is available at www.kids.nsw.gov.au.

1.2 In this Agreement, unless the contrary intention appears:


(a) References to legislation. A reference to legislation (including subordinate legislation) is a reference to that legislation as amended, consolidated, re-enacted or replaced, and includes any subordinate legislation issued under it.

(b) Reconstitution of a party. A reference to a person which has ceased to exist or has been reconstituted, amalgamated or merged, or other functions of which have become exercisable by any other person or body in its place, shall be taken to refer to the person or body established or constituted in its place by which its said functions have become exercisable.

(c) Time Limits. Where any time limit pursuant to this Agreement falls on a Saturday, Sunday or Public Holiday in the State of New South Wales then that time limit will be deemed to have expired on the next business day.

(d) Grammatical forms. Where a word or phrase is given a defined meaning any other part of speech or other grammatical forms of that word have, unless the context otherwise requires, a corresponding meaning.

(e) Rules of Construction. No rule of construction operates to the detriment of a party only because that party was responsible for the preparation of this Agreement or any part of it.

(f) Actions by the Commissioner. Anything that may be done by the Commissioner may also be done by any authorised officer of the Commissioner.

(g) Reasonableness. Where the Commissioner is required to act reasonably in the performance of this Agreement, that shall be read as a requirement to act as would a party in the position of the Commissioner who is acting reasonably in its own best interests.

(h) Headings. The table of contents and headings in this Agreement are for convenience only and do not affect the interpretation of this Agreement.

(i) References to persons. Persons will the taken to include any natural or legal person.

(j) Monetary Amounts. Monetary references are references to Australian currency.

(k) Clause numbering. A reference to “this clause” is a reference to the whole clause as identified by the first level clause number such as X rather than X.X, unless specified otherwise.

2. TERM

2.1 This Agreement will commence on the date that it is signed (and dated on page 3 of this Agreement) by the Commissioner (“Commencement Date”).

2.2 This Agreement will remain in force until 31 August 2020, unless terminated earlier in accordance with the terms of this Agreement (“the Term”).

3. APPROVED COUNSELLOR'S OBLIGATIONS

3.1 Due Diligences

Subject to clause 6, the Approved Counsellor must perform the Services:

(a) in a diligent manner and with all necessary skill and care expected in the provision of such Services; and

(b) in accordance with all representations and warranties as to the Approved Counsellor's experience and ability, whether expressed or implied.

3.2 Timely Provision of Services


Subject to clause 6, the Approved Counsellor must perform the Services expeditiously and in accordance with the time limits specified in the Practice Standards or as determined and directed by the Commissioner on a case-by-case basis.

3.3 Clinical Supervision

The Approved Counsellor must have a Clinical Supervisor for the duration of the term of this Agreement. Furthermore:

(a) details of the Approved Counsellor’s Clinical Supervisor are to be provided to the Commissioner at the commencement of the Agreement (see Schedule 1 Item 6);

(b) if the Approved Counsellor’s Clinical Supervisor changes, the Approved Counsellor is to notify the Commissioner of this in writing as soon as possible, and no later than 10 days following the change.

3.4 Confidentiality

(a) The Approved Counsellor must not disclose the Confidential Information of the Commissioner or his/her clients to any person without the prior written consent of the Commissioner. This includes any reports and drafts of such reports prepared and submitted under the terms of this Agreement.

(b) In relation to a particular client, the Approved Counsellor may disclose the Confidential Information of that particular client or any Report prepared in respect of that particular client:

(i) to the Approved Counsellor’s Personnel, if the disclosure is necessary for the purposes of this Agreement;

(ii) to that particular client or; with the consent of that particular client, their legal representative;

(iii) as necessary to perform the Services for that particular client and/or for the purposes of disclosure of the report to the Commissioner.

(c) The Approved Counsellor must not allow any other person that is not a party to this Agreement to observe, or be present at, a session with a particular client without prior written consent of the Commissioner and the client.

(d) Nothing in this clause (Confidentiality) alters the legal obligations of a party to this Agreement in disclosing any matter to any person, agency, or body.

(e) The obligations in this clause (Confidentiality) survive completion or termination of this Agreement.

3.5 Sub-contracting, assignment and reallocation

(a) The Approved Counsellor must not assign, sub-contract or otherwise re-allocate any part of the Services, including:

(i) assigning any student, trainee, supervisee or intern to provide any of the Services for any period of time to any client of the Approved Counsellor;

(ii) assigning any student, trainee, supervisee or intern to write any Reports;

(iii) assigning any other professional counsellor, approved or otherwise, to provide any of the Services for any period of time to a client of the Approved Counsellor;

(iv) assigning any other professional counsellor, approved or otherwise, to write any Reports.

(b) Subject to clause 6, any proposed requests by the Approved Counsellor relating to:


(i) the transfer of any client from the Approved Counsellor to another professional counsellor; or

(ii) the transfer of any victim from a professional counsellor to the Approved Counsellor to another professional counsellor;

(iii) a variation of the Services provided or proposed to be provided by an Approved Counsellor;

must be made in writing by the Approved Counsellor to the Commissioner and in accordance with the requirements and processes set out in the Practice Standards.

3.6 Statutory and other Professional Requirements

(a) Without limiting the generality of any other provision of this Agreement, the Approved Counsellor must ensure that all work done in connection with the Services:

(i) complies with all applicable legislation, regulations and all relevant Australian standards (or equivalent standards in the Approved Counsellor’s state or territory) applicable to the Services;

(ii) complies with all codes of conduct and professional standards as required of a member of:

A. the Royal Australian and New Zealand College of Psychiatrists, Psychology Board of Australia or the equivalent in the Approved Counsellor’s state or territory; or

B. the Australian Association of Social Workers; and

C. complies with the Children and Young Persons (Care and Protection) Act 1998 (NSW), Part 2 s. 23 ,s. 23 ,s. 25 and s. 27 (1) and (2) in relation to mandatory reporting of children and young people at risk of significant harm; or the equivalent legislation in the Approved Counsellor’s state or territory; and

D. complies with and holds a Working with Children Check clearance; and

E. complies with the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) or the equivalent legislation applying in the Approved Counsellor’s state or territory; and

F. complies with the Charter of Victims Rights.

(b) The Approved Counsellor must, at the Approved Counsellor’s own cost, maintain for the term of this Agreement

(i) all relevant registration or accredited membership to professional associations including, but not limited to, the Royal Australian and New Zealand College of Psychiatrists, Psychology Board of Australia or the Australian Association of Social Workers; and

(ii) professional competence and continuing professional development training as required to maintain his/her registration and/or accreditation.

3.7 Compliance with the Practice Standards and Complaints Handling Guidelines

(a) The Approved Counsellor will provide the Services in accordance with the Practice Standards.


(b) The Approved Counsellor will comply with the Practice Standards and the Complaints Handling Guidelines as amended from time to time by Victims Services.

(c) The parties agree that the Practice Standards and the Complaints Handling Guidelines will be used to regulate the requirements of this Agreement and constitute, together with this Agreement, the entire Agreement between the parties.

(d) The parties agree to be bound by the terms and conditions of the Practice Standards and the Complaints Handling Guidelines as if they were fully reproduced in this Agreement.

3.8 Undertakings

(a) Subject to clause 6 and the Approved Counsellor’s obligations in this clause 3, the Approved Counsellor warrants and undertakes:

(i) to accept all reasonable referrals or requests to provide the Services unless, upon written request by the Approved Counsellor, the Commissioner agrees to exempt the Approved Counsellor from a particular referral, request or particular group of referrals or requests as the case may be;

(ii) to be responsible for the professional and efficient provision of the Services consistent with the terms of this Agreement and the Practice Standards;

(iii) to undergo training of the kind and amount that may be specified in the Practice Standards.

(iv) prior to the Commencement Date, to sign the Statement of Fitness confirming that he/she is fit to provide the Services;

(v) to notify the Commissioner in writing as soon as practicable, and within 7 days of becoming aware:

A. of any change to his/her availability, including holidays, illness, or general unavailability;

B. of any change to his/her contact details including address or telephone number;

C. of any event or matter that may reasonably be expected to affect their fitness to provide the Services with reference to the Statement of Fitness (Schedule 3).

(vi) Upon request, and within 14 days of receiving such a request, to provide to the Commissioner any information to demonstrate that he/she has undertaken continuing professional development training as required to maintain his/her professional registration and/or as required by his/her professional association;

(vii) Upon request, to promptly provide to the Commissioner information to demonstrate that he/she has undergone training as required by the Practice Standards and as noted in (iii) above;

(viii) to maintain a consultative relationship with the Commissioner and in particular:

A. to be available for consultation with the Commissioner and the Professional Advisory Panel as set out in clause 3.8; and

B. to promptly provide information, assistance or clarification reasonably requested by the Commissioner, Victims Services or the Professional Advisory Panel arising out of or in connection with this Agreement;

(ix) to ensure that the Approved Counsellor’s Personnel is/are aware of the Approved Counsellor’s obligations under clauses 3.3 & 3.6;


(x) to make calculations and claims for the payment of any Fees, expense or other forms of payment in accordance with Schedule 2 and the Practice Standards;

(xi) to make no claim for any Fees, expenses or any other form of payment (including compensation) for time spent or costs incurred as a result of the Approved Counsellor’s compliance with this clause;

(xii) to keep accurate and up to date financial and other operational records in respect of the provision of the Services and for the purpose of this Agreement, and to furnish such records upon request from the Commissioner;

(xiii) to keep separate the Approved Counsellor’s work undertaken in connection with the Services, from any other paid or unpaid counselling services undertaken by the Approved Counsellor but which are not approved for the purposes of this Agreement; if the Approved Counsellor is a public servant (including member of staff, member of the Government Service or employee within the public sector service) for the purposes of the Government Sector Employment Act 2013 (NSW):

A. to abide by all relevant government department guidelines and requirements in relation to undertaking secondary employment or private employment (including private counselling practice and the provision of the Services the subject of this Agreement) whilst in paid public sector employment in a government department; and

B. to not use his/her place of paid public sector employment to conduct a private practice as an Approved Counsellor including not using his/her workplace telephone contact number.

(xiv) to comply with any determinations, decisions or directions made by the Commissioner in relation to the provision of the Services during the Term.

(xv) without limiting clause 3.9, to avoid, as far as is reasonably practicable, all conflicts of interest, including perceived conflicts of interest, and to notify the Commissioner in writing should any conflicts arise.

(b) For the avoidance of doubt, if the Commissioner is of the opinion that there has been a consistent, repeated, or significant failure to abide by any undertaking in this clause, the Commissioner may suspend or terminate this Agreement in accordance with clause 11 or clause 12.

3.9 The Professional Advisory Panel

(a) The Approved Counsellor must, upon reasonable notice from the Commissioner, be available for consultation with the Professional Advisory Panel and the Commissioner for the purposes of inspection, discussion, assessment or review of the Services, including the Reports, provided by the Approved Counsellor.

(b) The Approved Counsellor must promptly provide information, assistance or clarification reasonably requested by the Commissioner and Professional Advisory Panel for the purposes of inspection, discussion, assessment or review of the Services, including the Reports, provided by the Approved Counsellor.

(c) The Approved Counsellor is not entitled to the payment of any Fee, expense or any other form of payment under Clause 4.2 for time spent or costs incurred as a result of the Approved Counsellor’s compliance with this clause.

3.10 Conflict of Interest

(a) The Approved Counsellor warrants that at the date of this Agreement:

(i) he/she has no actual or potential conflict of interest arising out of or in connection with the performance of the Services; and


(ii) he/she has disclosed to the Commissioner anything or any matter which would affect the provision of the Services to the standard required by a member of the Royal Australian College of Psychiatrists, Psychology Board of Australia or the Australian Association of Social Workers (or the equivalent standards in the Approved Counsellors state or territory).

(b) Immediately upon becoming aware of the existence, or possibility of a conflict of interest, the Approved Counsellor must advise the Commissioner in writing.

(c) On receipt of a notice under clause 3.10(b), the Commissioner may:

(i) approve the Approved Counsellor continuing to perform the Services, which approval may be subject to conditions to ensure appropriate management of the conflict.

(ii) where the Commissioner so determines, exercise the right under clause 11 to suspend the provision of the Services.

(d) where, in the Commissioner’s view the conflict of interest cannot be appropriately managed, exercise the rights of termination under clause 12.

4. COMMISSIONER’S OBLIGATIONS

4.1 Amendment to the Practice Standards and the Complaints Handling Guidelines

(a) The Commissioner undertakes to use his/her best endeavours to notify the Approved Counsellor of amendments to the Practice Standards and Complaints Handling Guidelines in advance of those amendments taking effect.

4.2 Fees and Payment

(a) The Commissioner will pay the Fees in accordance with Schedule 2, subject to the terms and conditions of this Agreement.

(b) Except as provided in Schedule 2, the Approved Counsellor may not seek compensation or payment for any other fees or expenses incurred by the Approved Counsellor in the course of performing the Services without the prior written approval of the Commissioner to incur such fees or expenses.

(c) Without limiting the above, the Approved Counsellor agrees that under no circumstances is he/she permitted to charge additional Fees or any other amounts to clients for the provision of the Services other than as provided for under the terms of this Agreement.

(d) The Approved Counsellor acknowledges that any payment authorised and made to the Approved Counsellor by the Commissioner in accordance with this Agreement will not constitute an admission by the Commissioner that the Services have been properly performed, or a waiver or release of the Approved Counsellor’s obligations under this Agreement.

5. RELATIONSHIPS

5.1 Neither party is an employee, agent, partner, officer or representative of the other for any purpose. For the avoidance of doubt, the Approved Counsellor is not constituted as a member of staff of the Commissioner or Victims Services or as a public servant for the purposes of the Government Sector Employment Act 2013 (NSW) or any other law.

5.2 Without limiting clause 5.1, the Approved Counsellor:

(a) will not purport to represent the Commissioner, Victims Services, or the Victims Support Scheme when providing the Services.


(b) must seek and obtain prior written approval from the Commissioner if he/she wishes to speak at external functions about his/her experiences as an Approved Counsellor.

(c) must seek and obtain prior written approval from the Commissioner if he/she wishes to publish details, whether in the form of a research thesis or otherwise, about his/her experiences as an Approved Counsellor.

5.3 If prior written approval is granted by the Commissioner pursuant to clauses 5.2(b) or 5.2(c) above, the Approved Counsellor must, without limiting compliance with his/her obligations under this Agreement:

(a) adhere to the terms upon which such written approval has been granted by the Commissioner; and

(b) adhere to the principles of Confidentiality detailed in clause 3.3.

6. EXCLUSIONS

6.1 The parties acknowledge and agree that the Commissioner makes no express or implied representations or warranties:

(a) that the Approved Counsellor will maintain his/her status as an Approved Counsellor for the duration of the term of this Agreement or following its termination;

(b) that this Agreement will be renewed at the conclusion of the term of this Agreement or following its termination;

(c) as to the number or class of victims that may be referred, allocated, transferred or otherwise approved as clients of the Approved Counsellor for the purposes of this Agreement;

(d) as to the frequency or type, if any, of the Services to be performed for the duration of this Agreement;

(e) that the Approved Counsellor will maintain all victims referred, allocated, transferred or otherwise approved as clients of the Approved Counsellor at any time during the Term and for the purposes of this Agreement; or

(f) that the Commissioner will automatically grant or otherwise approve requests for further counselling made by a client of the Approved Counsellor following a request from a victim or recommendation from that Approved Counsellor.

6.2 The parties acknowledge and agree that the duration and scope of the Services to be provided by the Approved Counsellor will vary and will depend on the following matters:

(a) the statutory requirements set out in the VRS Act and the VRS Regulation which govern and cap the Commissioner’s authorisation of payments for the Services;

(b) the discretion of the Commissioner to allocate and refer a victim to the Approved Counsellor;

(c) the “victim” classification of the client;

(d) the location of the client;

(e) the service delivery requirements and compliance guidelines as set out in the Practice Standards;

(f) the Approved Counsellor’s compliance with the terms and conditions of this Agreement; and/or

(g) any other matters the Commissioner may consider appropriate in relation to the provision of the Services by the Approved Counsellor, including any determination made on a case-by-


case basis in relation to the continued provision of the Services by the Approved Counsellor to a particular client.

6.3 Without limiting the above and for the avoidance of doubt, the Approved Counsellor acknowledges and agrees that:

(a) there is no guarantee the Commissioner will approve the referral or allocation of a victim to him/her during the term of this Agreement.

(b) the Commissioner may, in his or her absolute discretion, cease allocation victims to the Approved Counsellor or transfer any allocated client from the Approved Counsellor.

In such cases, the Approved Counsellor agrees that he/she will not be entitled to make any claim for the payment of any Fee, expense or other form of payment arising in connection with the provision of the Services, or lack thereof, under this Agreement.

6.4 The Approved Counsellor, upon entering into this Agreement, agrees that he/she shall not be entitled to receive payment from the Victims Support Fund by way of financial support for a period of three (3) years from the Commencement Date of this Agreement. For the avoidance of doubt this clause survives termination of this Agreement.

6.5 The parties agree that any determination or decision made by the Commissioner under this clause 6 (Exclusions) shall be final and binding on the parties.

7. INDEMNITY

7.1 The Approved Counsellor will indemnify and keep indemnified the Commissioner, Victims Services, the Department of Justice and its Personnel and the State of New South Wales (“those indemnified”) from and against any loss or liability incurred (including legal costs and expenses),incurred or suffered by any of those indemnified arising out of or in connection with the provision of the Services or performance of this Agreement to the extent that such loss or liability is incurred by reason of or in connection with:

(a) any unlawful, wrongful, wilful or negligent act of the Approved Counsellor or his/her Personnel;

(b) any act or omission of the Approved Counsellor or his/her Personnel resulting in loss of, or damage to property;

(c) any act or omission of the Approved Counsellor or his/her Personnel resulting in personal injury to, or the death of, any person.

7.2 The Approved Counsellor’s liability to indemnify those indemnified under this Agreement shall be reduced proportionally to the extent that any unlawful, wrongful, wilful or negligent act or omission of those indemnified caused or contributed to the liability or loss.

7.3 The indemnity contained in this clause is a continuing obligation of the Approved Counsellor separate and independent of any other responsibility of the Approved Counsellor and will continue beyond the Term.

8. INSURANCE

8.1 Professional Indemnity Insurance

The Approved Counsellor must ensure that he/she has/obtains and maintains an appropriate policy of indemnity insurance for the purposes of this Agreement and for the amount and the period prescribed in Item 5 of the Agreement Details.

8.2 Workers Compensation

The Approved Counsellor must ensure that an insurance policy is effected prior to the Commencement Date and remains current for the Term of this Agreement, covering liability for loss,


damage, claims, and all direct or associated costs and expenses arising at common law or under workers compensation legislation in respect of persons employed by the Approved Counsellor.

8.3 Public Liability

The Approved Counsellor must ensure that he/she has/obtains appropriate public liability insurance prior to the Commencement Date and must maintain that policy for the Term of this Agreement.

8.4 Evidence of Insurance

The Approved Counsellor will, upon written request and within 7 days, produce to the Commissioner satisfactory evidence that the Approved Counsellor has/holds the appropriate insurance policies referred to in Clauses 8.1 to 8.3 and provide proof that the insurance policies are fully effective and current for the Term of this Agreement.

9. KEEPING OF RECORDS

9.1 The Approved Counsellor must:

(a) keep proper accounts, records (including information stored by computer and other devices) and time sheets in accordance with accounting principles generally applied in relevant commercial practice in respect of his/her charges, fees, and/or billing, and any Fees and payments (including reimbursements) payable pursuant to this Agreement; and

(b) keep sufficient records regarding the structure of the counselling sessions which accurately reflect presenting issues, therapeutic approaches and hours of Client contact provided and which confirms that there was a need for the counselling hours requested.

Production of documents

9.2 The Commissioner may request a copy of the records noted in clause 9.1. Upon receiving such a request, the Approved Counsellor must produce the records within 14 days of the date of the request.

9.3 The Approved Counsellor must also:

(a) be aware that on occasion records written by Approved Counsellors may be subpoenaed for production at Court eg Family Court. Approved Counsellors have a duty of care in relation to the confidentiality of their client’s counselling records. (For guidance Approved Counsellors may consult the guidelines produced by the NSW Women Legal Resource Centre: Counsellors and Subpoenas).

(b) be aware of their obligations under the Sexual Assault Communications provisions of the Criminal Procedure Act 1986 (NSW) and Evidence Act 1995 and should act in accordance with the guidelines of their professional association in responding to subpoenas.

10. SPECIAL CONDITIONS

10.1 The Commissioner may at any time, upon written notice to the Approved Counsellor, and for the period the Commissioner determines in his or her unfettered discretion, vary or revoke any condition of approval, or impose new or additional conditions in relation to the approval of the Services to be provided by the Approved Counsellor. This may include, but is not limited to, the type of Services provided by the Approved Counsellor.

10.2 Where the Commissioner gives the Approved Counsellor notice in accordance with clause 10.1, the Approved Counsellor agrees that he/she will not be entitled to make a claim for the payment of any Fee, expense or other form of payment arising in connection with the Commissioner’s decision to vary, revoke or impose additional conditions in relation to the approval of the Services to be provided by the Approved Counsellor under this Agreement.

10.3 The parties agree that any determination or decision made by the Commissioner under this clause (Special Conditions) shall be final and binding on the parties.


11. SUSPENSION OF SERVICES

11.1 The Commissioner may at any time, for any reason and for the period the Commissioner determines in his or her unfettered discretion, suspend the Services or the operation of this Agreement.

11.2 The suspension of services under clause 11.1 shall be given effect through written notice by the Commissioner to the Approved Counsellor, detailing:

(a) The reason(s) for the suspension;

(b) The length of the suspension;

11.3 The parties agree that any determination or decision made by the Commissioner under this clause (Suspension of Services) shall be final and binding on the parties.

11.4 In the event the Commissioner suspends the Services or this Agreement in accordance with Clause 11.1, the Approved Counsellor may make no claim or take any action whatsoever against the Commissioner, Victims Services or State of New South Wales for any loss, injury or damage sustained or incurred as a result of the suspension.

12. TERMINATION

12.1 Termination for convenience by written notice

(a) The Commissioner or the Approved Counsellor may each terminate this Agreement at any time by 30 days prior written notice addressed to the other party.

(b) The Approved Counsellor may not terminate this Agreement in accordance with 12.1(a) if the termination would expose the Commissioner to any claim for damages.

(c) A termination under 12.1(a) is effective upon expiry of the 30 day notice period.

(d) If the Commissioner or Approved Counsellor terminates this Agreement for convenience, the Commissioner will pay the Approved Counsellor any unpaid authorised Fees, expenses or other forms of payment which relate to Services properly performed up to the date of termination.

12.2 Termination for cause by the Commissioner

(a) The Commissioner may, by giving 14 days prior notice in writing to the Approved Counsellor, terminate this Agreement, if the Approved Counsellor:

(i) becomes bankrupt, or insolvent, or enters into a scheme or arrangement with his or her creditors; or

(ii) is found guilty, by a relevant Court of competent jurisdiction or relevant professional body or Tribunal validly exercising jurisdiction, of professional misconduct or unsatisfactory professional conduct or a criminal offence; or

(iii) knowingly and falsely states that he/she is fit to provide Services on the Statement of Fitness or otherwise fails to disclose a matter relevant to the Commissioner’s decision on fitness to provide Services; or

(iv) in the opinion of the Commissioner:

A. has not complied with the Practice Standards or any code of conduct or ethical code or law relevant to the provision of the Services by the Approved Counsellor;


B. has not complied with the policies, guidelines, and procedures for the provision of the Services as contained in the Practice Standards and Complaints Handling Guidelines.

C. fails to carry out the Services with due diligence and competence;

D. without reasonable cause, suspends the carrying out of the Services;

E. otherwise commits a breach of this Agreement.

(b) If the Commissioner terminates this Agreement for cause, the Commissioner may contract with any other Approved Counsellors to complete the provision of Services to a client.

(c) The parties agree that any determination or decision made by the Commissioner under this clause (Termination for cause by the Commissioner) shall be final and binding on the parties.

12.3 Termination for cause by the Approved Counsellor

The Approved Counsellor may, by giving 14 days prior notice in writing to the Commissioner, terminate this Agreement if the Commissioner:

(a) fails to pay the Approved Counsellor in accordance with this Agreement; or

(b) commits a substantial breach of this Agreement,

after being served with a written notice from the Approved Counsellor specifying such default and fails to remedy, or otherwise respond to, such default within the time specified in the notice.

12.4 Approved Counsellor's Continuing Liability

Termination by the Approved Counsellor or the Commissioner will not release the Approved Counsellor from liability in respect of any breach of, nor non-performance of any obligation by the Approved Counsellor pursuant to this Agreement unless the Commissioner waives in writing the liability or obligation.

12.5 Upon termination

(a) Termination of this Agreement by either party does not affect:

(i) any accrued rights or remedies of either party; or

(ii) the continued operation of clauses dealing with the commencement and termination, Fees, confidentiality, indemnity, insurance, consequences of termination, and any other provision of this Agreement which by its nature should survive termination shall survive termination of this Agreement.

(b) Upon termination of this Agreement, the Approved Counsellor must deliver to the Commissioner, within seven (7) days of termination or expiry of this Agreement, all Confidential Information of the Commissioner (including any copies).

(c) In the event the Commissioner terminates this Agreement in accordance with Clause 12.1 or 12.2, the Approved Counsellor may make no claim or take any action whatsoever against the Commissioner, Victims Services or State of New South Wales for any loss, injury or damage sustained or incurred as a result of the termination.

13. COMPLAINTS AND DISPUTE RESOLUTION

13.1 The Approved Counsellor acknowledges and agrees that any complaints or feedback that may arise out of or in connection with the provision of the Services by the Approved Counsellor will be dealt with in accordance with the Complaints Handling Guidelines.


13.2 Subject to clause 13.1, the parties will attempt to resolve any dispute in relation to this Agreement in good faith and in a timely manner by negotiation in writing, before resorting to court proceedings.

13.3 Nothing in this clause (Complaints and Dispute Resolution) will prevent either party from seeking urgent interlocutory relief.

14. PROMOTION AND ADVERTISEMENT

14.1 The Commissioner may advertise and promote the name and practice location of the Approved Counsellor on Victims Services’ website and other published lists for the purposes of this Agreement and the Approved Counsellor may make no claims or take any action whatsoever against the Commissioner or Victims Services as a result of that promotion or advertisement.

15. GENERAL

15.1 Waiver

Any waiver or forbearance in regard to the performance of this Agreement shall not operate and will only apply to the specified instance, and shall not affect the existence and continued applicability of the terms of it thereafter.

15.2 Applicable Law

This Agreement shall be read and construed according to the laws of the State of New South Wales and the parties submit to the Courts exercising jurisdiction in that State.

15.3 Amendments or Variations

This Agreement may not be amended or varied except as agreed in writing and signed by both parties.

15.4 Charges

Any statutory governmental fees, duties or charges (if any) arising out of or incidental to this Agreement shall be the responsibility of, and payable by, the Approved Counsellor.

15.5 Severability

If any provision of this Agreement is prohibited, void, voidable, illegal or unenforceable, that part is severed from this Agreement and the remainder of the Agreement will retain its full force and effect.

15.6 Entire Agreement

This Agreement constitutes the entire agreement and understanding between the parties as to the subject matter of this Agreement. Any prior arrangements, representations or undertakings as to the subject matter of this Agreement are superseded.

15.7 Counterparts

15.8 This Agreement may be executed by counterparts by the respective parties, which together will constitute one agreement.

16. INCONSISTENCY

16.1 In the event of an inconsistency between the terms of this Agreement and terms of the Practice Standards and the Complaints Handling Guidelines, for the purpose of resolving the inconsistency, the documents that comprise this Agreement are to be considered in the following order of decreasing priority:

(a) the operative provisions of this Agreement;

(b) the Schedules to this Agreement;


(c) the Practice Standards;

(d) the Complaints Handling Guidelines.

17. REPRESENTATIONS

17.1 The Approved Counsellor represents and warrants, and it is a condition of this Agreement, that:

(a) all information provided by the Approved Counsellor to the Commissioner including all information on his/her Application to be an Approved Counsellor, whether before or after the date of this Agreement is true and correct;

(b) the Approved Counsellor is not aware of any circumstances which adversely affect or might adversely affect the Approved Counsellor’s ability to fulfil its obligations under this Agreement; and

(c) the Approved Counsellor has full power and authority to enter into this Agreement.

18. NOTICES

18.1 A notice under this Agreement must be:

(a) in writing, directed to the representative of the other party (if any) as specified in the Agreement Details; and

(b) forwarded to the address, facsimile number or the email address of that representative (if any) as specified in the Agreement Details or the address last notified by the intended recipient to the sender.

18.2 A notice under this Agreement will be deemed to be served:

(a) in the case of delivery in person - when delivered to the recipient’s address for service and a signature received as evidence of delivery;

(b) in the case of delivery by post - within three (3) business days of posting;

(c) in the case of delivery by facsimile – at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient; and

(d) in the case of delivery by email - on receipt of confirmation by the sender that the recipient has received the email.

18.3 If the representative on behalf of the Commissioner or the Approved Counsellor varies, this must be communicated in writing to the other party, which may be by email.

18.4 Notwithstanding the provisions of this clause (Notices), if delivery or receipt of a communication is on a day which is not a business day in the place to which the communication is sent or is later than 5 pm (local time in that place) it will be deemed to have been duly given or made at 9 am (local time at that place) on the next business day in that place.


EXECUTED AS A DEED:

Execution by the Commissioner:

SIGNED, SEALED AND DELIVERED by …………………………….,(insert/print name of Commissioner of Victims Rights)

Commissioner of Victims Rights, but not so as to incur personal liability in the presence of……………………………….(insert/print name of witness not a party to this Agreement)

))))))))))))

…………….…………………………(signature of Commissioner)

…………….…………………………(signature of witness)

Execution by the Approved Counsellor:

SIGNED, SEALED AND DELIVERED by …………………………….(insert/print name of Approved Counsellor)

in the presence of……………………………….(insert/print name of witness not a party to this Agreement)

))))))))))))

…………….…………………………(signature of Approved Counsellor)

…………….…………………………(signature of witness)


SCHEDULE 1 AGREEMENT DETAILS

This attachment forms part of the Agreement between the Commissioner and the Approved Counsellor.

Item 1 COMMISSIONER

Name: Commissioner of Victims Rights

Street Address

Level 1, Justice Precinct Offices160 Marsden StreetPARRAMATTA NSW 2150

Postal Address

Locked Bag 5118 PARRAMATTA NSW 2124

Telephone 1800 633 063

Facsimile (02) 8688 9631

Email [email protected]

Item 2 APPROVED COUNSELLOR

Name: [insert name of Approved Counsellor]

Guide Note: Ensure that the specified Approved Counsellor is appropriately named and is the correct legal entity with which the Commissioner is contracting. This may have implications regarding professional indemnity and other aspects of insurance.

A.B.N: [insert A.B.N]

Address: [insert practice address]

Telephone [insert telephone number]

Email [insert email address]

Guide Note: By inserting an email address, the representative agrees that notices may be served by email. Seek specific instructions from the Approved Counsellor as to whether he/she wishes this to occur.

Counsellor class/category

Generalist Counsellor

Guide Note: Depending on their skills, experience and qualifications, the Approved Counsellors are designated a category for payment. Approved Counsellors can be designated as “generalist counsellor”, “specialist counsellor” or “psychiatrist”. The terms “generalist counsellor”, “specialist counsellor” are defined in clause 4 of the Regulation and therefore, the Approved Counsellor must obviously satisfy the requirements of those definitions to fall within either category. The type of category will determine the Fee payable per hour. and must satisfy the definition of

Approval Conditions (if any)

Approval is subject to the parties entering into this Deed of Agreement.

[insert any other approval conditions, if any]

Item 3 SERVICES

As described in the Practice Standards.

Guide Note: The Practice Standards should clearly set out a description of the approved counselling services to be provided. This can then be incorporated into this Agreement by reference.

The service description should include:

(a) if appropriate, description of the Principal’s objectives in procuring the Services;

(b) a detailed description of the services to be provided by the Consultant;

(c) a detailed description of the set deliverables; AND

(d) the specified timeframes to which the services are to be provided and set deliverables completed.

Item 4 FEE(S) AND PAYMENT PLAN

As described in Schedule 2.

Item 5 PROFESSIONAL INDEMNITY INSURANCE

Insured amount ($):

$2,000,000

Additional period after termination or expiry of this Agreement:

12 months

Item 6 CLINICAL SUPERVISOR’S DETAILS

Clinical Supervisor’s Name

Supervisors Profession:

Qualification:

Phone:

Email:

Frequency of clinical supervision arrangement:

SCHEDULE 2 FEES AND PAYMENT

This attachment forms part of the Agreement between the Commissioner and the Approved Counsellor.

General

1. The Approved Counsellor will be paid the Fees for the Services as set out below provided the Services comply with the requirements and criteria specified in the Practice Standards.

2. The Commissioner may only make payments:

a. consistent with and as authorised under the prescribed provisions of the VRS Act and VRS Regulation; and

b. in accordance with the calculations, procedures and processes set out the Practice Standards.

3. The Commissioner will process payment of the Fee (or any part of the Fee) or any approved and authorised expense within 28 business days of receipt of a valid tax invoice for that amount.

4. A valid tax invoice complies with the requirements of GST Law (as set out below) and is accompanied with a detailed description of the work performed to which the invoice relates.

5. If the Commissioner disputes the whole or any portion of the amount claimed in an invoice submitted by the Approved Counsellor, the Commissioner may process payment for the portion of the amount stated in the invoice which is not in dispute and shall notify the Approved Counsellor in writing of the reasons for disputing the remainder, or whole, of the invoice. If it is resolved that some or all of the amount in dispute ought to have properly been paid at the time of the first invoice, then the Commissioner shall process payment of the amount finally resolved (within seven (7) days of such resolution).

Fees

6. The Approved Counsellor acknowledges that any calculation and payment of the Fees or claim for any other payment is subject to the provisions of clause 5 of the VRS Regulation.

7. In relation to a victim (other than a family victim or relevant family member), the Approved Counsellor acknowledges that the Commissioner may authorise payments for the provision of the Services:

a. for a period of up to 10 hours of counselling (including counselling for the purposes of an application for continued counselling), and

b. for such further periods of counselling as the Commissioner may consider appropriate; butc. must not authorise payments for no more than a total of 22 hours of counselling services unless

satisfied that there are exceptional reasons for doing so.8. In relation to a family victim or relevant family member, the Approved Counsellor acknowledges

that the Commissioner may authorise payments for the provision of the Services. The Commissioner may authorise payments for approved counselling services within Australia for a victim who is a family victim or relevant family member:

9. The amount of payment to be made or reimbursed for each hour of the Services provided to a victim who is resident in Australia will be calculated in accordance with the Table set out in clause 6 of the VRS Regulation (set out below) and section 9.16 of the Practice Standards.

Category – Approved Counsellors Fees per hour

Generalist Counsellor $120

Specialist Counsellor $144

Psychiatrist $256

Calculation of the payment of Fees, other reimbursements and out-of-pocket expenses:10. The Approved Counsellor must make all claims for payment in accordance with the calculations,

procedures, timeframes and processes applicable to the Approved Counsellor and set out in the Practice Standards.

11. In relation to the payment of travel expenses see the Practice Standards.

GST

12. For the purpose of this Agreement the following expressions shall have the following meanings:

a. GST – means any tax imposed on the supply of goods and services which is imposed or assessed under GST Law.

b. GST Law – means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and all related ancillary legislation which provides for a broad based consumption tax on the supply of Goods and Services which becomes operative in respect of the provisions of this Agreement.

13. If the Approved Counsellor is liable to GST in relation to the provision of the Services under this Agreement, the Commissioner agrees that the amount payable for any supply under or in respect of this Agreement shall be adjusted by the amount of the GST.

14. The Approved Counsellor agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the Commissioner to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.

15. As required by any applicable legislation, where identifiable cost savings are realised by virtue of the enactment of the GST Law, those cost savings will be reflected in the calculations of the consideration under this Agreement.

16. The Approved Counsellor must be registered under the GST Law at the time of making any supply under this Agreement on which GST is imposed.

17. If the Approved Counsellor is not registered under GST Law, he/she will not be entitled to receive any additional amount as provided under this Schedule.

ABN

18. The Approved Counsellor must have an ABN (Australian Business Number) registration under the A New Tax System (Australian Business Number) Act 1999 at the time of making any supply under this Agreement, if they are required to be registered.

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SCHEDULE 3 STATEMENT OF FITNESS TO PROVIDE COUNSELLING

In applying for approval to provide counselling to victims of crime under the Approved Counselling Services scheme established under Part 4 of the Victims Rights and Support Act 2013 (NSW), you are asked to complete this Statement of Fitness to Provide Counselling.

I,..................................................................., of............................................................,name address

…………………………., in the State of ……………………do solemnly declare and affirm that

1. I am applying to provide counselling to victims of crime under the Approved Counselling Services scheme established under Part 4, Division 4 of the Victims Rights and Support Act 2013.

Please delete the statement that does NOT apply2A. With reference to the Notes on “Good Fame and Character”, I have not done or suffered anything likely to adversely affect my good fame and character nor am I aware of any circumstance which might affect my fitness to be an Approved Counsellor, nor am I currently or have been in the past, the subject of a complaint of lack of good character, professional misconduct or any other matter.OR2B. I wish to bring to the notice of the Commissioner of Victims Rights (the “Commissioner”) the facts and circumstances stated in the document signed and attached by me and I accept the decision of the Commissioner to approve or decline my fitness to provide counselling resulting from consideration of this document.

3. I have read and understood and agree to abide by the Victims Services Practice Standards for Approved Counsellors.

4. If the basis on which I make this declaration should alter, I undertake to inform the Commissioner.

Declared at ................................................................date..........................................

(signed).......................................................

Applicant

Please return to the Commissioner of Victims Rights, Victims Services, Locked Bag 5118, Parramatta NSW 2124 or [email protected], marked attention to Clinical Programs.

mailto:[email protected]

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NOTES ON “GOOD FAME AND CHARACTER”*

Guidelines for completing the Statement for Fitness for Provision of Counselling in relation to the Approved Counselling Services scheme established under Part 4, Division 4 of the Victims Rights and Support Act 2013.

“Good fame and character” may be adversely affected by

any criminal convictions, including driving offences (exceptions include non-criminal traffic offences; parking offences; and juvenile offences);

being named as a defendant in any court action for negligence or other malpractice as a healthcare professional

as a healthcare professional, being the subject of a complaint of a lack of good character, or professional misconduct

being suspended or expelled from a tertiary education institution

having registration, certification or licensing as a healthcare provider suspended or refused.

Note: Please note that these notes are intended as a guide only and are not definitive of situations affecting “good fame and character”. If in doubt about a situation, please include details.

If during the period of this Agreement the Approved Counsellor becomes aware of a matter or thing that is identified which may affect their services as an Approved Counsellor or their fitness to provide Services under this Agreement, they must report this in writing to the Commissioner as soon as possible.

Making a false Statement of Fitness or failing to disclose a matter relevant to the issue of fitness to provide Services under the Deed can result in termination of the Deed pursuant to clause 12.2(iii).

All correspondence should be addressed to:Commissioner of Victims RightsVictims ServicesLocked Bag 5118 PARRAMATTA NSW 2124

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