Mason and Secretary, Attorney-General's Department
[2011] AATA 904
•16 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/4124 &
GENERAL ADMINISTRATIVE DIVISION ) 2011/4128 Re SHARON MASON &
WINIFRED MASONApplicant
And
SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date16 December 2011
PlaceBrisbane (heard in Cairns)
Decision In each application the decision under review is affirmed.
................[Sgd]....................
Deputy President
CATCHWORDS
SOCIAL SECURITY - Australian Government Disaster Recovery Payment – claim – whether stranded in principal place of residence - decision under review affirmed
Social Security Act 1991 (Cth) ss 36, 1061K, 1061L
Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 4) sch 2
REASONS FOR DECISION
16 December 2011 Deputy President P E Hack SC
Cape Tribulation is a small township of about 80 residents approximately 140 km to the north of Cairns. The applicants, Mrs Winifred Mason and Mrs Sharon Mason, lived in adjacent properties within the township and adjoining the general shop, owned by other family members. In the early hours of 3 February 2011 parts of North Queensland, including the areas in and around Cape Tribulation, were affected by Cyclone Yasi.
Each of the applicants was directly affected by the cyclone. Trees on the respective properties were brought down or damaged, access roads were blocked by fallen trees and fences were damaged. The consequence of the roads being blocked was that, whilst the applicants were able to leave their properties they were only able to drive a few kilometres to the south along Cape Tribulation Road. The road to the north was blocked by fallen trees within metres of their properties and accordingly access to the north was not possible.
The Commonwealth, using the Social Security Act 1991 (Cth), has created a mechanism for the payment of what is called an “Australian Government Disaster Recovery Payment” to persons adversely affected by natural disasters. By virtue of s 36 of that Act the Minister[1],
“…may determine in writing that an event is a major disaster if the Minister is satisfied that the event is a disaster that has such a significant impact on individuals that a government response is required.”
The Attorney General has apparently made a determination that Cyclone Yasi was a major disaster.
[1] By virtue of the Administrative Arrangements Order of 14 October 2010 the Attorney-General is “the Minister” for these purposes.
Section 1061K prescribes the qualifications for the payment of an Australian Government Disaster Recovery Payment. The issue in the present case is whether the applicants satisfied s 1061K(1)(c) viz.
“(c) the person is adversely affected by a major disaster.”
For the purposes of the Act, and by operation of s 1061L, a person is adversely affected by a major disaster,
“… if the person is affected by the disaster in a way determined by the Minister in relation to the disaster.”
Section 1061L(2) empowers the Minister to determine, in writing, the circumstances in which persons are to be taken to be adversely affected by the disaster. The Attorney-General has made such a determination, the Social Security (Australian Government Disaster Recover Payment) Determination 2011 (No.4) made on 3 February 2011. Schedule 2 of the Determination is in these terms,
“A person is adversely affected by a major disaster mentioned in Schedule 1 if:
(a) as a direct result of the disaster:
(i) the person is seriously injured; or
(ii)the person is an immediate family member of an Australian who is killed; or
(iii)the person’s principal place of residence has been destroyed or has sustained major damage; or
(iv)the person is unable to gain access to his or her principal place of residence for at least 24 hours; or
(v)the person is stranded in his or her principal place of residence for at least 24 hours; or
(b)as a result of the disaster, the person’s principal place of residence was without electricity, water, gas, sewerage service or another essential service for at least 48 hours; or
(c)the person is the principal carer of a child to whom paragraph (a) or (b) applies.”
Each of the applicants considered that she was adversely affected as a direct result of Cyclone Yasi and made a claim for payment under the scheme. Centrelink, which administers the scheme on behalf of the Attorney-General’s Department, rejected the claims. The applicants now seek a review in the Tribunal.
The applicants rely only upon clause (a)(v), being stranded in their principal places of residence for at least 24 hours. They do not suggest that any of the other circumstances in which a person is adversely affected apply to them. They do, however, say that every other person living within the township received the disaster recovery payment. That being the case, they say, they too ought to receive the payment.
Reliance on the fact of payment to others may be readily disposed of. The statute, and the Minister’s Determination, determines the totality of circumstances under which a person is to be regarded as having been adversely affected by a major disaster. If it be the case that others within the community have, in fact, received the disaster recovery payment I infer that a decision-maker was satisfied by evidence placed before the decision-maker that one or other of the criteria in the determination was made out. If that is not the case, the fact of other payments being apparently wrongly made can play no role in the determination of the applicants’ entitlement to payment. The applicants’ entitlement must be determined by reference to their circumstances, not those of other persons.
I am not satisfied that the applicants were adversely affected in the manner they contend. They were not stranded in the principal place of residence for at least 24 hours. They had the capacity to leave the residences and to travel, albeit not particularly far. They may have considered themselves as having been adversely affected however I do not consider that they satisfy the requirement of the Determination.
In my view paragraph (a)(v) is to be given a fairly narrow operation. It requires that the claimant be unable to leave the residence for at least 24 hours. In that sense, it complements, and is the converse to, paragraph (a)(iv) which operates where a claimant is unable to gain access to the principal place of residence for at least 24 hours.
By virtue of clause 3(2) of the Determination, a place of residence is a person’s principal place of residence if the person normally resides at the place and has a lawful right to reside at that place. The language chosen to define the circumstances of adverse affectation is different; a person is adversely affected if stranded in the principal place of residence. That choice of language must be given effect to. Had the Determination defined the circumstances as being stranded at the principal place of residence the applicants might have satisfied the criteria however I do not consider that they were stranded in their place of residence for the required 24 hours. The fact that they were able to leave the residences and travel tells conclusively against acceptance of the proposition that they were stranded in their residences.
The decisions were correct. In each application the decision under review will be affirmed.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ..........[Sgd].......................................................
AssociateDate of Hearing 6 December 2011
Date of Decision 16 December 2011
The applicants were represented by Mr L Mason
Representative for the respondent Departmental Advocate
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