Fraser and Secretary, Attorney-General's Department (Social services second review)
[2016] AATA 555
•29 July 2016
Fraser and Secretary, Attorney-General's Department (Social services second review) [2016] AATA 555 (29 July 2016)
Division
GENERAL DIVISION
File Number
2015/2242
Re
Murray Fraser
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 29 July 2016 Place Sydney In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
1. the decision of the Social Security Appeals Tribunal made 14 April 2015 to reject Mr Fraser’s claim for an Australian Victim of Terrorism Overseas Payment, is set aside; and
2. the matter is remitted for reconsideration in accordance with the direction that Mr Fraser was a primary victim of a declared terrorist act (being the Bali bombings in 2002) within the meaning of subsection 1061PAA(2) of the Social Security Act 1991 (Cth).
..............[sgd]..........................................................
J W Constance
Deputy PresidentCATCHWORDS
SOCIAL SECURITY - Australian Victim of Terrorism Overseas Payment - whether applicant qualified for payment - declared overseas terrorist act - whether Applicant is a primary victim - whether Applicant was in the place where the terrorist act occurred - whether applicant was harmed - reviewable decision set aside and substituted.
LEGISLATION
Criminal Code Act 1995 (Cth)
Social Security Act 1991 (Cth) s 1061PAA
Social Security (Declared Overseas Terrorist Act) Declaration 2013
CASES
Hananeia v Secretary, Attorney-General’s Department [2016] FCAFC 36
Kaplan v Lee-Archer (2007) VR 405
R v Foster [2008] QCA 90
REASONS FOR DECISION
Deputy President J W Constance
29 July 2016
INTRODUCTION
The Social Security Act 1991 (Cth) was amended in 2012 to provide for payments to certain Australian residents affected by acts of terrorism committed outside Australia.
Mr Fraser lodged a claim for a payment under the Act in October 2014[1]. His claim arises from his presence in Bali at the time of the terrorist bombings of the Sari Club and Paddy’s Bar on 12 October 2002. He was in Bali as the organiser of a trip to Indonesia for members of his local Rugby Union Club.
[1] Exhibit R1 p.107.
On 14 April 2015 the Social Security Appeals Tribunal affirmed a decision to refuse Mr Fraser’s claim. The decision was made on the basis that Mr Fraser was not in the place that the terrorist act occurred and therefore could not be considered a ‘primary victim’ for the purposes of the legislation. Mr Fraser has applied to this Tribunal to review the decision of the Social Security Appeals Tribunal.
For the reasons which follow, the decision under review will be set aside. I have decided that Mr Fraser was in the place where the terrorist act occurred at the time of that act and that he was harmed as a direct result.
LEGISLATION
Subsection 1061PAA(1) of the Act provides, in part:
(1)A person is qualified for an Australian Victim of Terrorism Overseas Payment if:
(a)the person is a primary victim… of a declared overseas terrorist act; and
(b)the person and the person’s close family members were not involved in the commission of the terrorist act; and
(c) the person:
(i)is an Australian resident on the day the terrorist act occurred; ……
The Bali bombing is a “declared overseas terrorist act”.[2] The Declaration reads:
…. the bombings at Paddy’s bar on Jelan Legian, Kuta, at the Sari Club, Kuta, and in the vicinity of the US Consulate, Renon, Denpasar, in Bali, Indonesia on 12 October 2002.
[2] Social Security (Declared Overseas Terrorist Act) Declaration 2013.
Primary victim is defined in subsection 1061PAA(2):
(2)A person is a primary victim of a declared overseas terrorist act if the person:
(a) was in the place where the terrorist act occurred; and
(b)was harmed (within the meaning of the Criminal Code) as a direct result of the terrorist act.
In the Criminal CodeAct 1995 (Cth) the following definitions appear:
harm means:
(a)physical harm (whether temporary or permanent); or
(b)harm to a person’s mental health (whether temporary or permanent);
but does not include being subjected to any force or impact that is within the limits of what is reasonably acceptable as incidental to:
(c)social interaction; or
(d)life in the community.
harm to a person’s mental health includes significant psychological harm to the person, but does not include a reference to ordinary emotional reactions (for example, distress, grief, fear or anger).
ISSUES TO BE DECIDED
It is conceded that in this case subparagraphs (b) and (c) of subsection 1061PAA(1) are met. These are proper concessions on the evidence.
The issues for determination are as follows.
(1) Was Mr Fraser “in the place where the terrorist act occurred”?
(2) If so, was he harmed “as a direct result of the terrorist act”?
EVIDENCE AND FINDINGS OF FACT
Mr Fraser provided statements dated 12 March 2015[3] and 20 July 2015[4] and gave evidence. He impressed me as an honest witness who gave his evidence carefully and to the best of his recollection.
[3] Exhibit A1.
[4] Exhibit A2.
I make the following findings of fact based on Mr Fraser’s evidence, unless stated otherwise.
At the end of the 2002 Rugby season Mr Fraser organised a trip to Indonesia for 22 members of his local Rugby Club of which he was the Club Captain. The group arrived in Bali on the morning of 12 October 2002. They booked into the Wina Holiday Villa at approximately 8am.
Sometime during the afternoon the entire group, except Mr Fraser, went to the nearby nightclub district where the Sari Club and Paddy’s Bar were situated. Mr Fraser returned to his room at the hotel and fell asleep.
Mr Fraser was woken by an explosion. It was dark, but he is unsure of the time. As he awoke he felt the building shudder. He then went to a courtyard of the hotel where he could see a mushroom-shaped orange cloud against the skyline. It appeared close to where he was standing. Initially he felt confused, trying to work out what was happening he then went to the hotel lobby.
A few minutes later people started arriving in the lobby. They had glass cuts and were bleeding heavily. Mr Fraser took towels from the pool area and bottles of vodka from the bar and started to apply basic first aid to the victims. He had been a professional lifeguard and had received first aid training.
When he was in the lobby a member of staff told him that he thought a bomb had gone off at the Sari Club. At that point Mr Fraser intended going to the Club as he knew that that was where his team members were going. At the suggestion of the hotel staff member he decided to stay at the hotel to assist team members and other guests as they returned. A short time later the first of the Rugby group came into the lobby. They were injured, mostly suffering from cuts from shards of glass. Mr Fraser cleaned them up and sat with them in the lobby, cleaning up others as they returned. He then arranged for the team members to go to nearby rooms.
As he was assisting the injured, Mr Fraser commenced making a list of those of his group that had returned to the hotel and also the names of those who had been seen outside the Sari Club and Paddy’s Bar after the bombs had gone off and people had escaped outside. He spent approximately 4 to 6 hours helping the injured.
Around dawn, Mr Fraser joined his team in the rooms in which they had gathered. He spoke to the team members in small groups to confirm who had been seen after the explosions. He realised that there were three team members who were missing and another two who had suffered serious injuries and were in hospital.
Mr Fraser described the following events as follows:
I then went to Denpasar Hospital as I had been told that is where the open air morgue had been set up. I was taken through to an open courtyard area where bodies were being laid out as they were being brought in. I walked along the rows of bodies trying to identify my three mates. After doing this for about 2 hours an orderly told me there were more bodies in the actual morgue, so I went through with him and opened each freezer and rolled the tray out to try and identify the body. I then went back to the hotel and told the rest of the boys that I couldn’t identify any of the bodies.
I asked the team if they thought I should call [the missing members] parents and tell them they were missing. They agreed this would be the best thing to do. I rang each of the parents and told them their boy was missing, and that no one had seen them since before the bombs had gone off.
That afternoon I went back to the hospital with [two team members] to try and find the three boys bodies, but could not identify any of the boys in either of the morgue areas.
……
The next morning I went to the hospital again to see if there had been further bodies recovered. This time I wasn’t allowed to view the bodies in the open morgue, but instead sat down with a number of photo binders and looked at photos from various angles of all the bodies that had been recovered to try and identify at least one of the boys. This again proved unsuccessful……. That afternoon we flew back to Sydney.[5]
I accept this evidence.
[5] Exhibit A1.
It was some weeks before the bodies of the missing team members were identified.
The Sari Club was approximately 300-400 metres in a direct line from the hotel in which Mr Fraser was staying. The buildings between the club and the hotel were low-rise.
CONSIDERATION OF ISSUE 1: WAS MR FRASER “IN THE PLACE WHERE THE TERRORIST ACT OCCURRED”?
The argument on behalf of the Secretary
It was put on behalf of the Secretary that the relevant place for the purposes of the Act is the place specified in the Declaration, namely “at Paddy’s Bar” and “at the Sari Club”. It is not sufficient that Mr Fraser was in Kuta at the time of the bombings. However the Secretary accepts that the “place” may not necessarily be immediately adjacent or contiguous to the bomb site but could be a place further afield where a person directly experienced the bombings.[6]
The judgement of the Full Federal Court in Hananeia v Secretary, Attorney-General’s Department [2016] FCAFC 36
[6] Respondents Statement of Issues, Facts & Contentions 27 April 2016.
In this judgement the Full Court of the Federal Court considered the same issues as those which arise in this application; the claim was in relation to the same terrorist act. Gilmour J. (Barker and Bromberg JJ. agreeing) said:
The terrorist act was the explosion of the bombs and their impact. It “occurred”, meaning it “took place” or “happened” (Macquarie Dictionary Sixth Edition) as a matter of fact, over a very wide area, which reached well beyond the physical confines of the Sari Club. It is undisputed that one of the consequences was that the explosions caused windows of the Adi Dharma Hotel to shatter and that the applicant, who was in this hotel at the time, heard the explosions, saw the “mushroom” cloud they created, felt the shock waves from them as well as sensing their smell.
…… The AAT was in error in concluding that, for the purposes of this provision, the place of the bombings was declared by the Prime Minister to be at the Sari Club, Kuta.[7]
[7] At paras 32 & 33.
The Court held that the power of the Prime Minister to make a declaration was limited to declaring an act to be a “terrorist act”; the legislation does not provide for the making of a declaration as to the place of the act. The Court found that, for the purposes of subsection 1061PAA(2)(a) the applicant was in the place where the terrorist act occurred.
On the facts of this matter and taking into account what the Federal Court has said, I am satisfied on the balance of probabilities that Mr Fraser was in the place where the bombings of the Sari Club and Paddy’s Bar occurred.
The facts upon which I base this finding are:
·Mr Fraser heard the explosions;
·he saw the “mushroom cloud” which indicates that he saw the result of the explosions very soon after they occurred;
·he felt the shock wave of the second explosion;
·he was in a building which was significantly less than 1 km, as the crow flies, from the explosion at the Sari Club and Paddy’s Bar;
·he was sufficiently close to the sites of the bombings to attend to some of those injured in the explosions within a few minutes of the explosions occurring.
Although it does not form part of the reason for my decision, it should be noted that in this case the bombings at Paddy’s Bar and the Sari Club in Kuta and in the vicinity of the US Consulate in Dempasar have all been declared as a single terrorist act in Bali, Indonesia. In future applications it may be necessary to give further consideration to the extent of the “place” of the act. It is not intended that anything in these reasons should be taken as defining the limits of the “place” of the Bali bombings
CONSIDERATION OF ISSUE 2: WAS MR FRASER HARMED “AS A DIRECT RESULT OF THE TERRORIST ACT”?
The argument on behalf of the Secretary
The Secretary contends that Mr Fraser was not harmed as a direct result of the bombings because he did not suffer harm whilst at his hotel as a direct result of the bombs explosions. His decisions to go to the hospital and the morgue to view bodies and photographs broke the chain of direct causation between the terrorist act and the harm suffered. It is put that it was not necessary for him to go to the hospital and the morgue and that these were “new acts”.
It was further argued that there is an absence of evidence demonstrating which of the subsequent events caused the harm suffered, i.e. “whether any harm Mr Fraser subsequently suffered is shown to be materially attributable to helping or tending to victims of the terrorist act that evening, with some other event, such as attending the hospital, or the morgue, or going through the pictures of victims of the terrorist act.” [8]
[8] Respondents Statement of Issues, Facts & Contentions para.65.
Hananeia v Secretary, Attorney-General’s Department
Gilmour J. referred to cases in which the expression “direct result of“ has been considered. In particular he referred to the decision of the Victorian Court of Appeal in Kaplan v Lee-Archer[9] in which Buchanan J. (with whom Vincent and Nettle JJA agreed) considered that the word “direct” was inserted to “emphasise that the crime is to play a significant role in bringing about the compensable injury”.[10] In that case the Court was considering the meaning of suffering an injury “as a direct result” of the commission of a crime.
[9] (2007) VR 405.
[10] At para.[28].
Also in Kaplan Nettle J. concluded that an injury which is the “direct result of an offence” is an injury “that is judged as a matter of fact, according to commonsense and experience, to have been caused by the offence”.[11]
[11] At para.[56].
In R v Foster [12] the Queensland Court of Appeal held that to satisfy the requirement that for a loss to be “a direct result of” an offence, there had to be “a sufficiently direct connection” or a “close or significant connection” between the offence and the loss.[13]
[12] [2008] QCA 90.
[13] At paras [71] and [74]
In Hananeia Barker and Bromberg JJ. also adopted the concept of a “significant” connection between the harm and the terrorist act. His Honour Justice Barker said:
I consider the correct test, having regard to the authorities referred to by Bromberg J, to be whether the harm suffered by the applicant was, as a matter of common sense and experience, a direct result of the bombings; or, put another way, whether the harm suffered can be said to have a “close and significant connection” with the bombings
I consider that this test allows a person who was in the place where the terrorist act occurred but did not suffer any physical harm at the very time of the terrorist act (in this case, the time of the explosions at the Sari Club) and who did not suffer any subsequent psychological harm solely as result of his or her experience of the act, nonetheless to be considered to have suffered harm as a direct result of the terrorist act if they, depending on the factual circumstances of the case, respond to the terrorist act in certain ways and then suffer harm. [14]
At paragraph 154 Bromberg J. said:
It is only where, based on that weighing-up process described above, the terrorist act could not be regarded as having made a significant contribution to any harm suffered by Mr Hananeia in connection with a particular attendance, that a conclusion should be reached that Mr Hananeia failed to satisfy the second limb in relation to that harm.
Report of Mr Dieter, Psychologist [15]
[14] At paras. 96 and 97.
[15] Exhibit R1 p.96.
On 8 August 2014 Mr Dieter reported that:
·Mr Fraser has been his patient since 1 August 2014;
·Mr Fraser suffers post-traumatic stress disorder “as a direct result of” the 2002 Bali bombings;
·Mr Fraser’s current symptoms were ”nightmares, flashbacks (extensive/prolonged), early wakening, difficulty staying asleep, looping thoughts”;
·Mr Fraser “has carried this experience for past 13 years. Recently flashbacks + intrusive thoughts + nightmares have become unbearable”.
Mr Fraser’s evidence
In his statement made 12 March 2015[16] Mr Fraser said:
I believe by providing primary first aid and support for my team mates (and other public) immediately after the bombings, as well as informing the parents of my three mates that were missing and the two who were in hospital with serious injuries, I was “in close proximity and witnessed the result of the terrorist act first hand”, and this has resulted in my PTSD.
[16] Exhibit A1, p.3.
I do not accept the Secretary’s argument that Mr Fraser was not harmed as a direct result of the bombings because he did not suffer harm whilst at his hotel as a direct result of the explosions. On the facts of this matter and applying the principles set out in Hananeia, it is not necessary for Mr Fraser to meet the strict requirement put forward by the Secretary.
Mr Dieter does not specify a particular experience or experiences during the two days Mr Fraser was in Bali as being those which caused his post-traumatic stress disorder. However, Mr Dieter reported that the condition was “a direct result” of those experiences. I note that his report was provided on a form issued by the Department of Human Services designed specifically for use in claims such as this. Applying a common sense approach, I am satisfied that Mr Dieter was referring to all of the incidents experienced by Mr Fraser.
I am satisfied that Mr Fraser’s actions in attending the hospital and the morgue and viewing bodies and photographs in search of his missing team mates did not break the chain of causation between the bombings and the harm suffered by him. They were not “new acts” as referred to by the court in Hananeia.
Mr Hananeia returned to the Sari Club on three occasions to film the aftermath of the explosion. His voluntary choice to return to the scene was held to break the chain of causation between the terrorist act and the harm suffered by him. This is to be contrasted with the actions of Mr Fraser.
Mr Fraser was the Club Captain and organised the trip to Bali. I accept without hesitation his evidence that he felt responsible for the welfare of his teammates and that this caused him to take whatever steps he could to ascertain what had happened to them. In addition, shortly after the bombing, he took the responsibility of contacting the parents of the three team members to inform them that their sons were missing. Further, he contacted the parents of those who had been seriously injured and hospitalised. These responsibilities were undertaken in addition to his action in rendering first aid to members of his team as well as to other members of the public. He also took responsibility for immediately gathering his team together and assisting them in dealing with the tragedy in which they had just been involved.
A “common sense approach” to this evidence dictates that the terrorist act made a significant contribution to all of the events which caused Mr Fraser’s illness and therefore that harm was a direct result of the terrorist act.
Even if I am wrong in taking into account all of these events, I am satisfied that the post-traumatic stress disorder suffered by Mr Fraser was significantly contributed to by his experience of the immediate effects of the bombing whilst in the hotel and whilst rendering first aid to victims a short time later. As such, I am satisfied that his harm was a direct result of the terrorist act.
Although Mr Dieter did not refer to the contribution of particular events to the harm suffered by Mr Fraser, I have taken into account the evidence of Mr Fraser that his belief is that it was his action in providing primary first aid and support to his team members and others immediately after the bombings, as well as informing the parents of his missing and injured mates that resulted in his suffering post-traumatic stress disorder.
CONCLUSION
The decision under review, being the decision of the Social Security Appeals Tribunal made 14 April 2015 to reject Mr Fraser’s claim for an Australian Victim of Terrorism Overseas Payment, will be set aside.
The matter will be remitted for reconsideration in accordance with the direction that Mr Fraser is a primary victim of a declared terrorist act (being the Bali bombings in 2002) within the meaning of subsection 1061PAA(2) of the Social Security Act 1991 (Cth).
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ............[sgd]............................................................
Associate
Dated 29 July 2016
Date of hearing 6 May 2016 Date final submissions received 6 May 2016 Applicant In person Solicitors for the Respondent Ms H Schuster; Department of Human Services
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