Laffer and Secretary, Attorney-General's Department

[2013] AATA 676

[2013] AATA 676 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1759
Re	Richard Andrew Laffer
APPLICANT
And	Secretary, Attorney-General's Department
RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal	The Hon R J Groom AO (Deputy President)
Date	13 September 2013
Date of written reasons	23 September 2013
Place	Hobart

The decision under review is affirmed.

[Sgd : Hon R J Groom]

Deputy President

SOCIAL SECURITY – January 2013 Tasmanian bushfires – Australian Government Disaster Recovery Payment – volunteer fire fighter – whether “adversely affected” by bushfires – decision under review affirmed

Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No 1)

Social Security Act 1991, s 1061L(2)

WRITTEN REASONS FOR ORAL DECISION

The Hon R J Groom AO (Deputy President)

24 September 2013

1. Mr Laffer is a volunteer fire fighter.  He lives at Sloping Main on the Tasman Peninsula.  In January of this year serious bushfires occurred on the Peninsula and in adjoining areas of South-Eastern Tasmania.  Many properties were destroyed, particularly in and around Dunalley and some thousands of hectares of bushland were burnt out.

2. On 4 January, at the height of the fires, Mr Laffer was due to travel to Cradle Mountain where he had obtained several days work.  However before he departed to take up the position he was called in to help fight a bushfire burning near Nubeena.  After dark on that day he joined other volunteers fighting another fire near Murdunna.

3. During the next week Mr Laffer spent many hours on duty as a volunteer fire fighter in various areas of the Tasman Peninsula.

4. Mr Laffer explained that he was unable to leave the Peninsula to travel to Cradle Mountain because the police closed the main roads in the area for the next one and a half to two weeks.

5. As a result Mr Laffer had to forgo the employment opportunity he had been offered.  The offer was confirmed in a letter from the employer Mr Goonjoon dated 22 January 2013.  His anticipated earnings from that employment were in the order of $1,500.00. 

6. Mr Laffer had very little money available to him.  He uses gas appliances at his house at Sloping Main.  He is not connected to mains power and relies on tank water.  He ran out of gas at this time but could not afford to purchase more gas.

7. Mr Laffer told the Tribunal that he was able to access his house and returned there each day after completing his fire fighting duties.

8. Mr Laffer obviously suffered a financial loss because of his community spirit and his dedicated service as a volunteer fire fighter fighting these fires.

9. I am required to determine the facts and to apply the relevant law.  I have no discretion to simply decide whether, in the circumstances, it would be fair and reasonable to provide Mr Laffer with financial support under the Scheme. 

10. The central issue in this case is whether Mr Laffer satisfies any of the provisions of the Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No 1) made under section 1061L(2) of the Social Security Act 1991. That Determination is a Legislative Instrument. It applies to the January 2013 bushfires on the East Tasman Peninsula.

11. Payment under the Scheme is limited to persons “adversely affected” by those bushfires “in a way mentioned in Schedule 2” of the Determination.

12. The difficulty for Mr Laffer is Schedule 2 of the Determination and the description of the circumstances in which a person is said to be “adversely affected” by the bushfires.  The information before the Tribunal does not establish the existence in this case of any of the required circumstances set out in Schedule 2:

    ·Mr Laffer was not seriously injured

    ·No immediate family member was killed

    ·His house was not destroyed nor did it sustain major damage

    ·He was not prevented by the fires from gaining access to his house for 24 hours or more

    ·The fires did not themselves cause a loss of a utility service for a continuous period of 48 hours

    ·Mr Laffer was not the principal carer of a child adversely affected in one of the above ways.

13. For the purpose of (b) in Schedule 2 “utility service” is defined in section 3 of the Determination and includes “gas”. It is true that Mr Laffer ran out of gas during the period of the bushfires.  He depended on gas for his hot water and refrigerator.  As he was short of money he was unable to purchase another bottle of gas.  It could be argued that his lack of money was because he was unable to take up the job at Cradle Mountain and that, in turn, was because of the bushfires.  That link, however, is not, in my view, sufficient to satisfy paragraph (b) of Schedule 2.  The reason he could not get gas was his overall financial plight rather than as a result of the disaster itself.  He also said in evidence today that the local shopkeeper probably would have allowed him to purchase the gas on credit had he made a request.  He felt uneasy about asking for assistance and so did not make such a request.

14. After considering all the material before it the Tribunal finds that Mr Laffer does not satisfy any of the criteria for the payment of disaster relief under the Determination.  The SSAT decision of 15 March 2013 is therefore affirmed.

15. I do commend Mr Laffer for the community spirit he displayed in staying to fight the fires.  His personal efforts as a volunteer fire fighter no doubt helped save properties and possibly also lives.   

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

[Sgd]

Administrative Assistant

Dated :  23 September 2013

Date(s) of hearing	13 September 2013
Applicant	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch