Richard Hananeia and Secretary, Attorney-General's Department
[2015] AATA 319
•14 May 2015
[2015] AATA 319
Division General Administrative Division File Number
2014/5081
Re
Richard Hananeia
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 14 May 2015 Place Perth The decision under review is affirmed.
..............................[sgd].................................
S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – Australian Victim of Terrorism Overseas Payment (AVTOP) – 2002 Bali bombings declared by Prime Minister to be "declared overseas terrorist acts" – applicant in hotel in Kuta, Bali at time of bombings – applicant attended place of bombing 15 minutes after explosion – applicant subsequently contracted major depressive illness and post traumatic stress disorder – applicant not "in the place where the terrorist act occurred" – applicant not qualified for AVTOP – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 15AA and s 15AB
Criminal Code Act 1995 (Cth), s 4(1)
Criminal Code, s 100.1 and Dictionary
Social Security Act 1991 (Cth), s 23(1), s 35B(1) and s 1061PAASocial Security (Declared Overseas Terrorist Act) Declaration 2013
CASES
IW v The City of Perth (1997) 191 CLR 1
Kaplan v Lee-Archer [2007] VSCA 42
SECONDARY MATERIALS
Second Reading Speech on the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011
Revised Explanatory Memorandum relating to the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas Bill) 2011
REASONS FOR DECISION
Deputy President S D Hotop
14 May 2015
Introduction
On 21 December 2013 Richard Hananeia (“the applicant”) lodged with the Department of Human Services (“DHS”) a claim for an Australian Victim of Terrorism Overseas Payment (“AVTOP”), under Part 2.24AA of the Social Security Act 1991 (Cth), in respect of the “2002 Bali bombings”.
On 26 February 2014 a Centrelink officer decided to reject the applicant’s claim on the ground that he was not eligible for an AVTOP. That decision was, on 2 April 2014, affirmed by a Centrelink authorised review officer (“ARO”).
On 26 August 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the ARO dated 2 April 2014.
On 1 October 2014 the applicant lodged with the Tribunal an application for review of the decision of the SSAT dated 26 August 2014.
Pursuant to the current Commonwealth Administrative Arrangements Order, matters arising under the Social Security Act 1991 (Cth), insofar as it relates to the AVTOP, are dealt with by the Attorney-General’s Department and, accordingly, the proper respondent in this proceeding is Secretary, Attorney-General’s Department.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T23, pp 1–66) lodged with the Tribunal on behalf of the Secretary, Attorney-General’s Department (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1 and A2 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant.
The Legislative Framework
Part 2.24AA of the Social Security Act 1991 (Cth) (“SS Act”) contains provisions dealing with “Australian Victim of Terrorism Overseas Payment” (“AVTOP”).
Section 1061PAA of the SS Act provides as follows:
“1061PAA Qualification for Australian Victim of Terrorism Overseas Payment
Qualification for AVTOP
(1)A person is qualified for an Australian Victim of Terrorism Overseas Payment if:
(a) the person is a primary victim or a secondary 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; or
(ii)is covered by a determination under subsection (6).
Note: For declared overseas terrorist act see section 35B.
Meaning of primary victim
(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.
Meaning of secondary victim
(3)A person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who:
(a) was in the place where the terrorist act occurred; and
(b) died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.
Meaning of close family members
(4)The following are a person’s close family members:
(a) the person’s partner;
(b) the person’s child;
(c) the person’s parent;
(d) the person’s sibling;
(e) the person’s legal guardian.
Meaning of involved
(5)A person was involved in the commission of a declared overseas terrorist act if the person:
(a) aided, abetted, counselled or procured the terrorist act; or
(b) induced the terrorist act, whether through threats or promises or otherwise; or
(c) was in any way (directly or indirectly) knowingly concerned in, or a party to, the terrorist act; or
(d) conspired with others to effect the terrorist act.
Ministerial determination
(6)The Minister may, by legislative instrument, determine a specified class of persons for the purposes of subparagraph (1)(c)(ii).”
The phrase “declared overseas terrorist act” is defined in s 23(1) of the SS Act to mean:
“ a terrorist act in respect of which there is a declaration under subsection 35B(1)”.
Section 23(1) also relevantly provides:
“ terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.”
In section 100.1(1) of the Criminal Code (being the Schedule to the Criminal Code Act 1995 (Cth)), the phrase “terrorist act” is defined as follows:
“ terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii)intimidating the public or a section of the public.”
Section 100.1 of the Criminal Code also provides:
“ (2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d)endangers a person’s life, other than the life of the person taking the action; or
(e)creates a serious risk to the health or safety of the public or a section of the public; or
(f)seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i)an information system; or
(ii)a telecommunications system; or
(iii)a financial system; or
(iv)a system used for the delivery of essential government services; or
(v)a system used for, or by, an essential public utility; or
(vi)a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.
(4)In this Division:
(a)a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b)a reference to the public includes a reference to the public of a country other than Australia.”
Section 4(1) of the Criminal Code Act 1995 (Cth) provides as follows:
“ Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.”
The Dictionary at the end of the Criminal Code includes the following relevant definitions:
“ harm means physical harm or harm to a person’s mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.
harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.”
Section 35B of the SS Act relevantly provides:
“(1) The Prime Minister may, by legislative instrument, declare that a terrorist act that occurs outside Australia is a declared overseas terrorist act.”
On 20 September 2013 the Prime Minister made a declaration under s 35B(1) of the SS Act as follows:
“ 1 Name of declaration
This declaration is the Social Security (Declared Overseas Terrorist Act) Declaration 2013.
2 Commencement
This declaration commences on 21 October 2013.
3 Definitions
In this declaration:
Act means the Social Security Act 1991.
terrorist act has the same meaning as in subsection 100.1 of the Criminal Code.
4 Declared overseas terrorist act
For the purposes of subsection 35B(1) of the Act, the following terrorist acts are declared overseas terrorist acts:
(1)the crashing of commercial airliners into the World Trade Center in New York, into the Pentagon building in Washington DC, and near Shanksville, Pennsylvania, in the United States of America on 11 September 2001
(2)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
(3)the bus bombing at Tavistock Square and the train bombings in the Circle Line tunnel between Liverpool Street and Aldgate stations, on the Circle Line outside Edgware Road, and in a Piccadilly Line tunnel between King’s Cross and Russell Square in London, United Kingdom on 7 July 2005
(4)the suicide bombings in the vicinity of the Four Seasons Hotel, Jimbaran Beach, Kuta, the Kuta shopping centre, Kuta and the Raja Bar and Restaurant, Kuta, in Bali Indonesia on 1 October 2005
(5)the bombings in the vicinity of the Nelson restaurant, the Aladdin café, and the Ghazala market in Dahab, Egypt on 24 April 2006
(6)small arms assaults in the vicinity of Chatrapati Shivaji Terminus, the Leopold Café, the Taj Hotel, the Oberoi – Trident Hotel, and Nariman House in Mumbai, India on 26 November 2008 – 28 November 2008, and
(7)the suicide bombings in the vicinity of the JW Marriott and Ritz-Carlton hotels in Jakarta, Indonesia on 17 July 2009.”
The Applicant’s Evidence
The applicant tendered in evidence his signed Statement of Evidence, dated 19 February 2015, which states as follows:
“ Background
1. I am the Applicant in these proceedings.
2. I was born and raised in New Zealand. I left home when I was 18 and, after a year or so of being unemployed, gained entry into a fine arts degree at Otago University at the beginning of 1995. Otago University is in the city of Dunedin in the South Island of New Zealand.
3. I had always been very good at drawing and it was not difficult for me to get into fine arts school. For many years I have also been playing the guitar. I enjoy artistic things and view myself as an artistic type of person.
4. While I was at university I lived in Dunedin and worked as a display artist and sales representative for Civic Video.
5. I first moved to Australia in October 1996. I moved straight to Perth, having come from the city of Dunedin in the South Island of New Zealand. My move to Perth was my first trip overseas. I moved to Perth to be closer to my mum and sister who already lived there. I also viewed living in Australia was as [sic] enticing as there would be greater opportunities for me.
6. I stopped my studies at Otago University in October 1996 to move to Perth. At the time, I intended to continue my studies here in Perth but never did in the end.
7. When I moved to Perth I had little in the way of possessions. I started playing my guitar to make money as soon as I could.
8. Very shortly after arriving in Perth, I was offered a job working at a Subway store in Leederville. I started my work there about a month after I arrived. It was my intention to come to Australia to work hard and be a contributing part of Australia, so I took the first job I was offered.
9. I was employed there and eventually became the night manager for that Subway. My job there ended in around 1998 as a result of the store changing management and resulting roster changes.
10. I continued to seek work in the hospitality industry. I aspired to become a barman and then eventually a cocktail barman.
11. I applied for any job I could and got a job working at the Rottnest Lodge on Rottnest Island. I worked there as a cocktail barman and waiter. In that job, I was running the cocktail bar. Although I had little experience in being a barman or making cocktails, I studied cocktail books and learnt from others on the job. I quickly learnt how to do that job well.
12. My job at Rottnest was full time, working split shifts. I would open the bar in the morning serving coffees and drinks and returning in the evening to help with functions, serving on tables, making drinks and then closing the bar. I worked 5 days a week at that job.
13. On the weekend and on Friday afternoons, I would take the ferry from Rottnest to Fremantle, to play my guitar at the gig I had at the Fremantle market bar.
14. At that time, I was very happy with my lifestyle. I thought it was great to be able to work on Rottnest and play my guitar on the weekends. Over time, I became familiar with the locals of Fremantle including local business people. In that place, I felt that I fit [sic] in culturally. I felt at home and independent. That time was a big highlight for me in my life. I was living off the coast of what I viewed as a beautiful utopia, making a life for myself. I had developed a skill base in bartending and hospitality and was happy using it.
15. My job at Rottnest ended after about a year and a half. I continued to play music, both at the Fremantle market bar and busking to make money while I looked for other work.
16. I took my CV to a number of clubs in Northbridge and was offered a job at the Paramount nightclub. They did not have a job for me as a bartender, so I took a job clearing tables and cleaning up intending to work my way up.
17. I left work at the Paramount in 2000 sometime. I definitely remember that I was there for the millennium celebrations. I then got work at the Universal Bar in Perth. All the hospitality jobs I had required me to present well and work closely with others. I enjoyed them all to greater or lesser degrees, but the Universal Bar was my favourite. It was very professional, with a focus on music and had beautiful surroundings. I participated in all the training that was offered. I was working there up until I left for my trip to Bali.
18. All through the times I worked in Perth, I continued playing my music busking. That was my way of making a small amount of money and blending into the culture of Perth. I prided myself on presenting myself well, playing folksongs and learning Australian folksongs and modern Australian songs. I tried to immerse myself in Australian culture during that time and would often try to help other foreigners and tourists learn more about Australia.
19. During that time, I also played gigs at the Fremantle market bar. I had played there for nearly 10 years, sometimes playing with John Butler (of the John Butler Trio). Sometimes I would open a set for him, and sometimes he would open a set for me. I loved the ‘muso’ vibe of Fremantle.
Bali
20. In 2001, I was in a relationship with a woman I had met that year. She lived with me for a few months. At that stage I was living in a nice one-bedroom apartment in North Perth.
21. After a few months of living together, she left to go to London. We agreed to stay in contact and that we would meet in Bali, as a sort of ‘half-way’ from Perth to London. We had originally planned to meet in Bali in September 2002.
22. In the end, our relationship broke up before we met again. I decided that I would still go to Bali alone. I had heard about Bali from my friends and people in Perth who would talk about it. I wanted to go to Bali for the experience and to help get over my recent break up.
23. I got money together for the trip from working and with the help of friends and family. I changed the date for my trip from September to October. A few days before I left for Bali, my sister’s husband gave me a bag with a couple of cassette video cameras in it for me to record my holiday.
24. I had never taken many photos or any video of my life before. Having the cameras was a novelty to me. I recorded constantly throughout my time in Bali, with a lot of the footage before the bombings being of me clowning around, exploring and having fun.
25. I arrived in Bali on 2 October 2002. I had planned to stay 14 days and was staying at the Adhi Dharma Hotel at Jalan. Benesari, Kuta.
26. I spent my first day introducing myself, speaking with hotel staff and exploring around Legian and the Poppies Lanes in Legian. I spent about a week exploring around those areas.
27. I would spend time talking with Aussies who were staying in the area. They were everywhere. My sister’s husband had given me some money to buy him some clothes for him [sic]. I spent most of my time exploring and doing a bit of shopping.
28. At night I would go to the local bars and clubs. The first bar I went to was the Sari Club. As soon as I walked in, I felt comfortable because the place was full of Australians.
29. There were also people from other parts of the world that would be at the Sari Club, and all around. I spent a lot of time trying to learn about Balinese and Indonesian culture and about people from other places in the world that I met.
30. I rarely strayed far from the Adhi Dharma or the Sari Club. I went to the Sari Club every night for the duration of my holiday. Attached and marked ‘RH 1’ is a google maps image showing, approximately, the positions of the Adhi Dharma Hotel and Paddy’s Bar, which was across the road from the Sari Club.
The bombings
31. I spent the early evening of the night of the Bali bombings, on 12 October 2002, at [sic] watching a Balinese show at the Adhi Dharma cottages near the Adhi Dharma Hotel which finished at about 9pm.
32. At the show, I met an Australian girl who invited me to have drinks with her and her friends after the show poolside at the Adhi Dharma Hotel. We all met at the poolside and spent some time there talking, drinking and relaxing.
33. Around 10:45 pm we had all decided to go to the Sari Club. There had been two girls and two or three guys with me in the group around the pool. I remember at least two of the guys leaving to go the [sic] Sari Club a few minutes before.
34. We were about to leave also but before we left, at about 11pm what I now know were two bombs at the Sari Club exploded. I later learnt that there had been one bomb inside the Sari Club and a larger bomb in a van had been outside the Sari Club.
35. When the bombs exploded, it was the loudest explosion or any sound I had ever heard. I could not have imagined a louder or more terrifying sound. The remainder of the group I was with were by the pool when the bombs exploded. I felt the shockwave from the blast go straight through me. It was very powerful. There was also a powerful gust of wind from the blast. The shockwave was semi-visible.
36. The Adhi Dharma cottages were visible from where I was at that moment. I remember its windows shaking violently from the blast.
37. I saw a large mushroom cloud shaped smoke plume from the blast in the sky. There was a bright orange glow in the sky and everywhere. I immediately saw that the power was out in the surrounding buildings and I heard windows shattering nearby. As soon as the shockwave came, there was a horrible chemical smell in the air that I could taste in my mouth and throat.
38. At that moment, I was shocked, confused and fearful. The people I were [sic] with were also afraid. People in the hotel were terrified. I could hear people yelling in the streets. Panic was unfolding everywhere.
39. No one knew what had just happened but it was clear something bad had occurred. The girls in the group left the hotel and started running toward the blast. They were very emotionally upset being concerned about the two friends that had left not long before the bombs had gone off.
40. Not long after the blast, I put my camera on. I kept it on for nearly the rest of the night and recorded just about everything I saw.
41. Within seconds of leaving the hotel it was clear that I would come across injured people. I did not set out only intending to help people. I had no medical skills. But I would, and did, try to help people if I could. Around the time of the blast, I was not thinking about anything clearly. I was in a confused panic and initially went out with the girls to look for their friend and to keep filming because I knew something terrible had occurred.
42. From the time I left the hotel to arriving outside the Sari Club it took about 10 or 15 minutes. I noticed very shortly, about the first 5 minutes of travel, there was damaged buildings and things that made me conclude that a bomb had gone off.
43. While heading from the hotel, people started running back the opposite direction within minutes. There were people running everywhere, and yelling all around.
44. During my journey to the bomb centre, I was checking on people that I came across and trying to reassure them. I checked on a few people, I can’t remember exactly how many.
45. I didn’t know what to do to help really, I didn’t know how to help people medically, but I would do things like put my hands on people who were shell shocked or burned and ask them if they were alright or tell them things like ‘you’re alright mate’ and ‘you’re going to be okay’. I would speak to injured people and give them directions away from the area.
46. There were injured people everywhere, some in groups, and some just standing alone. I remember seeing some people just sweeping away glass from their store fronts as if nothing had happened. I cannot describe the looks of shock and terror on the faces of people I came across apart from saying it was beyond my imagination.
47. I was coming across injured people not long after the leaving the hotel. The scene became more horrific as I got closer to the bomb site. As I got closer, the destruction was greater. There were pieces of human bodies scattered around along the journey.
48. At some point after leaving the hotel, I lost the girls I was with. I had tried to get them to stop running toward the centre and I couldn’t keep up.
49. In the end, near the bomb site, I was alone. I came out of an alleyway next to what was the Sari Club. I had to clamber out of the alleyway as it was blocked with debris. There were pieces of bodies in there as well.
50. On exiting the alleyway, the scene was almost unbelievable to me. I turned to my left, and can only describe what I saw as hell on earth. Dead bodies were everywhere. There was an orange-white glow all about with dark silhouettes of people. There were power lines all round on the ground. Power lines were all over the ground for most of the way to the centre.
51. Panicking people were everywhere. A lot of people were just standing frozen stuck, or walking with blank stares. Some were in groups. Some were looking for other people.
52. When I exited the alleyway, I was just frozen.
53. I remember then someone near the Sari Club yelling to anyone around something like ‘don’t just f-ing stand there, do something!’.
54. I will never forget that moment. I then snapped and looked down next to me and saw a man with the worst injuries I had seen or could ever had [sic] imagined. He was physically intact in a way, but had missing hunks from his chest and arms and legs. I tried to wake him up then some people told me that he was dead and to leave him.
55. I was in a total state of shock by that stage. I could not process what was happening. I then tried to assist some people by helping carrying a person on a stretcher. I also spent some time looking around trying to find water for people.
56. My main regret is that I could not wake up that man. I wanted to tell him that it was going to be okay. That was the worst feeling. His eyes were open looking at me, I thought he was alive.
57. The whole scene from close to the hotel to the centre had been so dangerous. I was risking getting cut or electrocuted there was fire and rubble everywhere.
58. I can’t remember exactly when emergency services started showing up. It felt like about an hour after the blast. I ended up back at my hotel finally at around maybe 2 or 3 am. I had been cut and scratched from rubble. I was covered in my blood, other people’s blood and filthy. I had horrible chemical taste in my mouth and smoke and fallout in my chest.
59. When I got back to the hotel, I put the camera on and recorded saying something about what I had witnessed. I then cried so hard it physically hurt like no pain I had experienced before.
60. The next morning I noticed on the street fronting the hotel that there was debris around. There was also car parts just down the street. I also noticed that some of the windows of the Adhi Dharma had been blown out. I had not noticed those things in the dark the night before.
After Bali
61. I left Bali two days later, taking my scheduled flight home.
62. After I got back home to Perth, I gave the Australian Federal Police (AFP) the footage I took that night. That was on 15 October 2002. I answered a lot of questions for the AFP about that night. I also gave a statement I was told was for use in prosecuting the terrorists in Indonesia.
63. During the night of the bombing, I had my camera running off and on, holding it to one eye while running along, talking with people and doing what I could to help. Sometimes I had it down and was not shooting footage. I felt driven to document the event because I knew it was a major disaster and felt it was important to document it. I also knew a lot of the people in the Sari Club. I had sat in that bar every night for nearly 2 weeks prior.
64. I looked at the footage maybe a couple of times after the bombing. I can’t watch the watch it [sic], even the good parts of my holiday. The last time I looked at it was around 3 years ago.
65. After the bombing, I tried to go back to work at the Universal bar. I could not hold down that job. I felt totally numb. I became obsessed with the event, reading about it and watching it on the news.
66. Over time, I became more and more sick. I withdrew from my friends and family. I first started receiving counselling the night [sic]
67. I went to my GP about a month after the attack and was diagnosed with post-traumatic stress disorder.
68. Since that night I have felt trapped and isolated. The events I saw are stuck in my mind. I went from one counsellor or psychologist to the next, but nothing really helped. I took medication to help with that, very strong anti-depressants, for 10 years. Those medications made me unwell and I eventually stopped taking them.
69. I wanted to work but couldn’t. I couldn’t bring myself to leave the house for about two years. I’ve contemplated and prepared for committing suicide on a number of occasions.
70. I have not worked since the bombings. I am currently living on a disability support pension.” (Exhibit A1)
The applicant confirmed that he had signed the above statement and that its contents are true and correct to the best of his knowledge and belief.
In cross-examination, the applicant was referred to his evidence at the SSAT hearing as summarised in para 15 of the SSAT’s Reasons for Decision as follows:
“ 15. Mr Hananeia’s evidence is as follows:
·He arrived in Bali on 2 October 2002 and stayed at the Adhi Dharma Hotel in Legian Street. He was traveling alone and did not feel very safe. Each night from 2 October to 11 October he frequented the Sari Club and Paddy’s Bar. He felt safe there because there were a lot of Australians. He became reasonably familiar with a team of football players from Sydney and the staff in the Sari Club.
· The Adhi Dharma Hotel was about 1.9 km from the Sari Club.
·On 12 October 2002 he met some Australian girls staying at the Adhi Dharma Hotel and had drinks with them. They were all planning to go to the Sari Club later. A couple of them left by motorbike about 10:45PM but he stayed by the swimming pool with the others.
·At 11:00PM they heard the explosion and felt the shock waves. Windows on some surrounding buildings were blown out.
·He and the girls headed toward the source of the explosion. The girls were looking for their friends who had left on the motor bike. They ran into many people fleeing from the area but were not able to ascertain what happened. As he was running he was recording on his video camera. Before he left for Bali he was given two video cameras and six tapes and he had made extensive coverage of his visit. It is in his nature to make a personal record in such a manner.
·He arrived at the site by the alleyway situated between the Sari Club and Paddy’s Bar. It had taken him about 15 minutes to get there. It was a horrific and chaotic scene with dead bodies everywhere and fires in cars and surrounding buildings.
·He went to assist a man who was bleeding and realised he was dead. He was terrified. He was unable to help anyone as he did not know what to do. He stayed for about 15 minutes, filming until his camera battery ran out. He fled the area out of fear and horror. He returned to his hotel, hitching a ride on a motorbike. His hands were covered with blood and soot.
·At approximately 11.45 PM he returned to the site and stayed until about 1 AM filming the emergency services arriving and the crowds gathering. When he returned to his hotel he was distraught and felt physically ill. He called his sister in Australia.
·At dawn he again returned to the site and did more filming. He was recording because he was trying to understand what happened. When he returned to his hotel later that morning most of the Australians staying there were checking out and flying home. He received a call from an Australian Federal Police officer demanding that he provide information (his videos). He refused, saying that he was returning to Australia to give the footage to the Australian people.
·Some international news organisations also offered to pay for the video footage but he refused all offers.
·He returned to Australia on 14 October on his scheduled flight.
·The following day he turned his videotapes over to the Australian Federal Police. They were returned to him about six months later, at the same time that he made a sworn statement for the trial of Imran Samudra. He has never viewed the videotapes or provided them to anyone else to view.
·He has been psychologically unwell since his return from Bali. He lost the job he loved at the Universal Bar about five months after his return. He ended up in prison for a period. He cannot get the images of what he saw out of his head. He cannot focus on anything. He spends most his [sic] time alone.” (T2, pp 8–9)
It was put to the applicant that his evidence at the SSAT hearing to the effect that:
·having arrived at the site of the explosion, he initially “stayed for about 15 minutes, filming until his camera battery ran out” and then “returned to his hotel”;
·“at approximately 11.45 pm he returned to the site and stayed until about 1.00 am filming the emergency services arriving and the crowds gathering” and then returned to his hotel;
·“at dawn he again returned to the site and did more filming” and “returned to his hotel later that morning”;
was not included in his Statement of Evidence (Exhibit A1) in this proceeding. The applicant said that he tried to help people when he first arrived at the site and then “left after a certain amount of time and went back and got another camera and went back down later on, the camera had night vision, and recorded some more for a while” and then went back to his hotel room. He added that he had not kept track of time in those circumstances.
The applicant confirmed that he did return to the site at dawn the following morning (13 October 2002), “got past the military”, and did some more filming for about two hours. He said that he was “standing in the crater” and there was “a street full of bodies wrapped in white sheets”. He added that he was “also down there the next day” and he “probably stayed another hour or two” and “was recording”. He said that he flew out of Bali later that day (14 October 2002).
In response to a question from the Tribunal, regarding para 67 of his Statement of Evidence (Exhibit A1), the applicant said that the “GP” referred to was Dr Simon Moss. He said that Dr Moss told him that he had “post traumatic stress disorder with brain damage” and prescribed medication for him.
Medical/Psychological Evidence included in the T Documents
A letter from Sheena Edwards, Senior Supervisor, Anglicare WA, dated 1 October 2003, states as follows:
“ TO WHOM IT MAY CONCERN
This is to confirm that Richard Hananeia attended Kinway Services for five counselling sessions on 5/12/02, 12/12/02, 14/4/03, 23/4/03 and 28/4/03.” (T6)
A letter from Jackie Ireland, PSP Caseworker, Centacare Employment and Training, dated 3 February 2005, which is addressed “To Whom It May Concern”, states as follows:
“ I first met Mr Hananeia on 23rd February 2004 when he commenced the Personal Support Programme (PSP) with Centacare Employment and Training. Referrals for this programme are initiated by Centrelink Occupational Psychologists. This programme provides at-risk people with counselling, referral services, and support to address non-vocational barriers to employment and/or engagement in the community.
Mr Hannaneia was referred to the programme primarily due to difficulties he was experiencing in relation to being present at the Bali bombings. Mr Hananeia struggles with depression and post traumatic stress disorder. During the eleven months that I have known Mr Hananeia he has reliably attended appointments and has shown considerable motivation to improve his circumstances and life. At no time has Mr Hananeia displayed aggressive or confrontational behaviour.
…” (T8)
A letter from Carmela Yom-Tov, Clinical Psychologist, dated 28 January 2009, which is addressed to Dr M Vincent, states as follows:
“ Thank you for referring Richard whom I saw for 3 Medicare Mental Health Care sessions from 15.9.2008 to 26.11.2008. He was a little unreliable concerning appointments.
His presenting problem was symptomatic of a Post Traumatic Stress Disorder following his close physical proximity to the Bali bombings. He saw the site shortly after the bombings and videotaped the scene, which bothered him a lot as he felt the police might request the film. Moreover he had spent a considerable amount of time at the venue which was subsequently bombed. There were pending memorials for the victims and Richard was anxious concerning his participation therein. He coped with the new exposures concerning the bombings and the symptoms of the PTSD decreased significantly.
However when the PTSD symptoms decreased his vulnerable pre-morbid problems came to the fore. He does not know his father and was reared in disadvantaged circumstances by his single mother in New Zealand. He needed much courage to migrate to Australia and even more courage to overcome his anxiety to go on holiday to Bali. He described a generalised anxiety prior to the PTSD. On arrival to Australia in 1986 he ‘went off the rails’ but feels this is behind him. He feels a deep sense of inadequacy, he has few social contacts and indeed activities and although he plays the guitar and busks weekly and assists a few hours a week with television deliveries, he is relatively inactive and largely isolated. He lives in a unit in the same complex as his mother. He has had some counselling and psychotropic medication in the past (he had a manic episode possibly due to Effexor) and feels he has a marijuana problem.
It may be wise to refer Richard to a Department of Health mental health clinic with its multidisciplinary team – psychiatric and social work intervention would be useful – and where he can undergo fairly long-term therapeutic intervention.” (T9)
A DHS “Health Professional or Allied Health Professional Report” form, completed by Dr Vincent and dated 30 December 2013, lodged with the DHS in connection with the applicant’s claim for an AVTOP, states that the applicant has been Dr Vincent’s patient since 13 August 2008 and includes (inter alia) the following information:
2 Physical or psychological/psychiatric injuries or conditions sustained as a direct result of the terrorist act
1 Diagnosis/injury as a direct result of the terrorist act specified on page 1 of this report Major Depressive Illness/Post Traumatic Stress Disorder Who made the diagnosis? Inner City Mental Health Clinic
Private Psychologist (Carmela Yom Tov)
Clinical history of the injury or condition Was in Bali when bombings occurred and was witness to the site very soon after Details of past, current and recommended treatment Psychological counselling
Anti depressant medication
Current symptoms Anxiety Panic Disorder Social Withdrawal
Low mood and feelings of persecution from Centrelink
How long did the injury or condition persist, or how long do you expect it to persist, from the date of the terrorist act? Less than 6 weeks 14 weeks to 28 weeks permanent þ 6 to 13 weeks over 28 weeks but not permanent (original emphasis) (T12)
24.In a Centrelink “Medical Report – Disability Support Pension” form, completed by Dr Vincent and dated 12 May 2014, Dr Vincent (inter alia):
·described the applicant’s diagnosis as “major depressive illness/post traumatic stress disorder/panic attacks”;
·indicated that the date of onset was “2003”;
·stated that the applicant’s “symptoms began after Bali bombing to which he was a witness”. (T19)
The Issue
25.The issue for the Tribunal’s determination is whether the applicant is qualified for an AVTOP under s 1061PAA(1) of the SS Act.
26.The respondent does not dispute that:
·the applicant and his “close family members were not involved in the commission of” (within the meaning of para (b) of s 1061PAA(1) of the SS Act) the relevant “declared overseas terrorist act”, namely:
“ 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”;
·the applicant was an Australian resident on the day that terrorist act occurred, within the meaning of subpara (c)(i) of s 1061PAA(1) of the SS Act.
The applicant has not claimed that he is a “secondary victim” of the abovementioned “declared overseas terrorist act”, within the meaning of para (a) of s 1061PAA(1) of the SS Act. He has, however, claimed that he is a “primary victim” of that “declared overseas terrorist act’, within the meaning of para (a) of s 1061PAA(1).
27.Pursuant to s 1061PAA(2) of the SS Act, 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”.
Accordingly, for the purpose of determining whether the applicant is qualified for an AVTOP under s 1061PAA(1) of the SS Act, the critical issue which the Tribunal must determine is whether paras (a) and (b) of s 1061PAA(2) are satisfied in the applicant’s case.
Consideration
The purpose or object of the AVTOP scheme
28.Part 2.24AA of the SS Act and related amendments to that Act were inserted by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (No 106 of 2012) (“the AVTOP Act”) – whose long title is “An Act to provide support for Australian victims of terrorist acts occurring overseas, and for related purposes” – with effect from 22 January 2013.
29.In his Second Reading Speech on the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011 (“the AVTOP Bill”) in the House of Representatives on 24 March 2011, the (then) Attorney-General, Mr Robert McClelland, said (inter alia):
“ Terrorism is a crime that has a unique and dramatic impact on the lives of its victims.
It is a crime directed not at individuals, but at the state – but individuals are the victims.
Presently in every Australian state and territory victims of crime, including terrorism, are eligible for lump sum payments under criminal injuries schemes.
However, there is no comprehensive scheme that covers Australian victims of terrorism when those incidents occur overseas.
In the past decade Australians have been killed and injured in terrorist attacks in New York and Washington, Bali, London, Jakarta and Mumbai.
Terrorism is an unpredictable and stateless phenomenon.
It can strike almost anybody, in any place and at any time.
It is a sad reality that Australians are sometimes specifically targeted in overseas terrorist acts.
Other times, they are merely caught up in attacks launched indiscriminately at ‘Westerners’.
In either case, these individuals fall victim to attacks with a political or ideological motive, rather than a personal one.
In that context, it is only fair that the burden of the attack be borne in part by the state, and not by the individual victim.
It is important to acknowledge the collective responsibility of the Australian community to help individuals recover from overseas terrorist events.
The Australian government has assisted Australian victims of terrorism in the past, providing them with medical and evacuation support, consular assistance and assisting with funeral costs and other expenses, on an ex gratia basis. The value of that assistance to date exceeds $12 million.
There is, however, more that can be done to ease the suffering and to provide support to Australian victims in the longer term.
It is in this context that the government today commends to the House the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011.
It should be noted that the bill builds on important work by the Leader of the Opposition, and the member for Paterson by incorporating principles of the opposition leader’s private member’s bill entitled ‘Assisting the Victims of Overseas Terrorism’.
The purpose of the opposition leader’s private member’s bill was to provide additional financial support of up to $75,000 to Australians who are affected by terrorism while they are overseas.
The government’s bill adopts this approach by instituting a new mechanism for providing financial assistance to victims of overseas terrorism, called the Australian Victim of Terrorism Overseas Payment.
The payment will provide up to $75,000 for individuals who are injured in an overseas terrorist event or to a close family member of an individual killed as a result of a terrorism event overseas.
Eligibility under the scheme provided for by the bill requires the Prime Minister to declare an overseas terrorism event in the first instance.
Once an overseas terrorism event has been declared, set eligibility criteria will apply, primarily that an applicant is an Australian resident and did not contribute to the terrorism event.
…” (Exhibit A2)
30.The Revised Explanatory Memorandum relating to the AVTOP Bill, which was laid before the Senate in 2012, relevantly states:
“ SOCIAL SECURITY AMENDMENT (SUPPORTING AUSTRALIAN
VICTIMS OF TERRORISM OVERSEAS) BILL 2011
GENERAL OUTLINE
The Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill will establish a framework for the provision of financial assistance for Australians who are injured overseas as a result of terrorist acts and for close family members of Australians who are killed overseas as a result of terrorist acts.
The scheme acknowledges the special and tragic nature of terrorism by establishing a comprehensive financial assistance framework for the provision of assistance by amending the Social Security Act 1991, the Social Security (Administration) Act 1999, and the Income Tax Assessment Act 1997.
In particular, the Bill will:
· enable Australians who are victims of a declared overseas terrorist incident to claim financial support of up to $75,000;
· enable the Prime Minister to declare that a relevant overseas terrorist incident is one to which the Scheme applies;
· establish eligibility criteria so that payments can be made to either long-term Australian residents who are victims of a relevant overseas terrorist act, or in the event of the death of a victim, close family members;
· ensure that payments will not adversely affect a person's entitlement to compensation or damages under another Commonwealth law;
· ensure that victims are not required to repay or deduct Medicare or other benefits from any payment received under the Scheme;
· enable the Secretary to extend the period for assessing claims and making payments; and
· enable the enactment of legislative instruments to provide further guidance on the amount of assistance that each victim, or close family member, should receive.
How the Government assists and supports victims of terrorism overseas is an important matter. In the past, Australia has provided targeted assistance to Australians adversely affected by terrorist acts overseas. This has been achieved using both statutory and ex gratia response measures, enabling the Government's response to tragedies such as the Mumbai bombings in 2008 to be flexible and tailored. Past forms of assistance have included Disaster Health Care Assistance Schemes, ex gratia assistance, consular and repatriation assistance, and immediate short term financial assistance through the Australian Government Disaster Recovery Payment (AGDRP). The provision of additional financial assistance under the proposed scheme will supplement those existing measures.
The Bill proposes two categories of eligible individuals: primary victims and secondary victims. A primary victim will be a person who is harmed as a result of a declared overseas terrorist act. A secondary victim will be a close family member of a person who dies as a result of a declared overseas terrorist act.
Payments will be capped at $75,000 for both primary and secondary victims. In some circumstances, the amount of Australian Victim of Terrorism Overseas Payment may be nil.
A person who is injured in a declared overseas terrorist act and whose close family member also dies in the same declared overseas terrorist act may claim as both a primary and a secondary victim and may receive payments of up to $75,000 in relation to each claim. The payment for secondary victims may be apportioned between eligible close family members.
The Bill was introduced into the House of Representatives on 24 March 2011. On 22 March 2012, the Senate jointly referred the Bill and the Assisting Victims of Overseas Terrorism Bill 2012, a private senator's bill introduced into the Senate on 1 March 2012, to the Senate Legal and Constitutional Affairs Committee (the Committee) for inquiry. The Committee received 23 submissions and conducted a public hearing on 19 April 2012. The Committee's Report of 10 May 2012 contains seven recommendations, including three recommendations to clarify certain matters in a Revised Explanatory Memorandum (Recommendations 2, 3 and 5). This Revised Explanatory Memorandum addresses those Recommendations.
In addition, on 21 June 2012, the House of Representatives agreed to minor amendments to the Bill. This Revised Explanatory Memorandum includes information outlining how those amendments will operate.”
In relation to the proposed new section 1061PAA in the SS Act, the Revised Explanatory Memorandum relevantly states:
“ …
Subsection (2)
Subsection (2) provides that a person is a primary victim of a declared overseas terrorist act if that person was in a place where the terrorist act occurred and was harmed as a direct result of the terrorist act.
Paragraph (2)(a)
Paragraph (2)(a) provides that the person must be in the place where the terrorist act occurred. The intention of paragraph (2)(a) is to disqualify persons who have watched or heard of the event through any form of public media from making a claim. Although they may be distressed by observing or hearing of the event, this is not enough to qualify for benefits.
The person must be physically ‘in a place’ where the overseas terrorist act occurs. This could be in the hotel foyer, an adjacent car park or across the road. However there must be close proximity to the overseas terrorist act.
Paragraph (2)(b)
Paragraph (2)(b) provides a second requirement that the person must be harmed (this can be physical or psychological harm). The intention is to ensure that only those who sustain some form of injury receive payment. Financial assistance should be available for people who suffer harm. People whose injuries are not permanent or serious should be eligible. However, they may receive a lower quantum than a person whose injuries are permanent or more serious.
…” (Exhibit R2)
The applicant’s submissions
Mr Weeks (for the applicant) presented a comprehensive and elaborate submission in relation to the construction of the relevant legislation - in particular, s 35B(1) and s 1061PAA(2) of the SS Act - the essence of which may be summarised as follows:
·the AVTOP Act is beneficial and remedial legislation and should be given a “fair, large and liberal” interpretation, rather than an interpretation which is “literal or technical”, but not a construction that is “unreasonable or unnatural”: IW v The City of Perth (1997) 191 CLR 1 at 12;
·the power conferred on the Prime Minister by s 35B(1) is limited to declaring that a “terrorist act”, as defined in s 100.1(1) of the Criminal Code, that occurs outside Australia, is a “declared overseas terrorist act”;
·the definition of “terrorist act” in s 100.1(1) of the Criminal Code is limited to certain kinds of “action” or “threat of action” and does not include a geographical element;
·the declaration made by the Prime Minister under s 35B(1) in respect of the relevant “terrorist act”, namely, the 2002 Bali bombings, is, accordingly, to be understood as a declaration regarding only the action comprising the 2002 Bali bombings and not including the precise locations thereof;
·the declaration made by the Prime Minister under s 35B(1) in respect of the 2002 Bali bombings does not define or prescribe the meaning of the phrase “in the place where the terrorist act occurred” for the purposes of para (a) of s 1061PAA(2);
·a person will be “in the place where the terrorist act occurred”, within the meaning of para (a) of s 1061PAA(2), if that person is “in close enough proximity to physically experience or perceive the act and that experience or perception was first-hand and not through some other medium”;
·it is not necessary that the person be in physical danger or at risk of physical danger from the relevant terrorist act in order to satisfy para (a) of s 1061PAA (2);
·although the applicant was not at, or in close proximity to, the site of the 2002 Bali bombings when they occurred, he was, at that time, in sufficiently close proximity thereto that he physically and cognitively perceived and experienced that terrorist act and its immediate aftermath in that he heard the blast, felt the shockwave, saw the mushroom cloud, smelled the chemical fallout, experienced fear and terror, and, upon arrival at the site soon after, saw the immediate aftermath involving death, severe injury and destruction;
·that being the case, the applicant was “in the place where the terrorist act occurred”, within the meaning of para (a) of s 1061PAA(2), and he therefore satisfies that paragraph;
·as regards para (b) of s 1061PAA(2), the applicant has suffered “harm”, in the sense of “harm to [his] mental health”, within the meaning of the Criminal Code, as a result of the 2002 Bali bombings, namely, major depressive illness and post traumatic stress disorder;
·consistently with the beneficial and remedial nature of Pat 2.24AA of the SS Act, and in order to promote the purpose or object of that legislation as stated in the Attorney-General’s Second Reading Speech, and in the Revised Explanatory Memorandum, relating to the AVTOP Bill, the phrase “as a direct result of” in para (b) of s 1061PAA(2) should not be construed narrowly such that the terrorist act must be an “immediate”, “proximate” or “obvious” cause, or the sole cause, of the harm, but rather should be construed broadly so as to include circumstances where, on a common-sense, practical approach, there is a causal relationship between the terrorist act and the harm and to exclude circumstances where there is merely a tenuous or insignificant relationship between the terrorist act and the harm: Kaplan v Lee-Archer [2007] VSCA 42 at [25], [28];
·the 2002 Bali bombings terrorist act was a material cause of the applicant’s subsequently suffering major depressive illness and post traumatic stress disorder;
·accordingly, the applicant was “harmed (within the meaning of the Criminal Code as a direct result of the terrorist act”, within the meaning of para (b) of s 1061PAA(2) and he therefore satisfies that paragraph;
·the applicant is “a primary victim of a declared overseas terrorist act” within the meaning of s 1061PAA(2);
·the applicant satisfies paras (a), (b) and (c) of s 1061PAA(1) and is therefore qualified for an AVTOP under that subsection.
The respondent’s submissions
The submissions presented by Mr Macliver (for the respondent) may be summarised as follows:
·paras (a) and (b) of s 1061PAA(2) of the SS Act must be read together as a whole in the context of the AVTOP legislative scheme;
·the phrase “the place where the terrorist act occurred” in para (a) of s 1061PAA(2) refers to the place where the relevant “declared overseas terrorist act” occurred;
·the relevant “declared overseas terrorist act”, namely:
“ 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”
itself specifies the places where the specified terrorist acts occurred, namely, “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;
·the relevant “declared overseas terrorist act” also specifies the date on which the specified terrorist acts occurred, namely, “on 12 October 2002”;
·although para (a) of s 1061PAA(2) does not expressly include a temporal element, an implication to that effect – in particular, to the effect that the person be in the place where the terrorist act occurred at the time when it occurred – necessarily arises from the terms of s 1061PAA(2) as a whole.
·the applicant was not in, or even in close proximity to, any of the places specified in the relevant “declared overseas terrorist act” at the time when the bombings occurred;
·accordingly, para (a) of s 1061PAA(2) is not satisfied in the applicant’s case;
·as regards para (b) of s 1061PAA(2), although it is accepted that the applicant has been “harmed (within the meaning of the Criminal Code)” – in that he has suffered harm to his mental health by reason of his contracting major depressive illness and post traumatic stress disorder – and that there is a causal relationship between his arriving at the site of the Sari Club shortly after the bombing at the Sari Club and witnessing the aftermath thereof and his subsequently suffering that harm, he did not suffer that harm “as a direct result of” the bombing at the Sari Club;
·the applicant was not “harmed … as a direct result of” the bombing at the Sari Club because he was not at, or in close proximity to, the Sari Club at the time of the bombing; instead, he was at a hotel some distance away when that bombing occurred and he did not suffer harm (within the meaning of the Criminal Code) at that time;
·rather, the applicant suffered harm (within the meaning of the Criminal Code) as a result of his voluntarily attending the site of the Sari Club shortly after the bombing at the Sari Club, not “as a direct result of [that] terrorist act” itself, within the meaning of para (b) of s 1061PAA(2);
·accordingly, para (b) of s 1061PAA(2) is not satisfied in the applicant’s case;
·the applicant is not “a primary victim of a declared overseas terrorist act” within the meaning of s 1061PAA(2);
·the applicant is not “a primary victim or a secondary victim of a declared overseas terrorist act” within the meaning of s 1061PAA(1) and, accordingly, he is not qualified for an AVTOP under that subsection.
Is the applicant “a primary victim of a declared overseas terrorist act” within the meaning of s 1061PAA(2) of the SS Act?
It seems to the Tribunal that the critical issue in determining this matter is whether para (a) of s 1061PAA(2) of the SS Act is satisfied in this case.
According to the applicant’s evidence, at the time when the relevant “declared overseas terrorist act” – in particular, the bombing at the Sari Club – occurred on 12 October 2002, he was at the Adi Dharma Hotel. The respondent has not disputed that evidence, and the Tribunal accepts it.
It is common ground that the Adi Dharma Hotel is located approximately 600 metres, in a straight line or “as the crow flies”, from the Sari Club and the shortest distance by road between the two establishments is approximately 1.9 kilometres.
The Tribunal accepts the applicant’s evidence to the effect that, having heard two explosions at approximately 11.00 pm on 12 October 2002 when he was at the Adi Dharma Hotel, he hurried to the bomb site arriving there about 10–15 minutes later and then returned to the hotel and picked up a camera with night vision and then returned to the bomb site; and that he returned to the site at dawn the following day (13 October 2002) and also in the morning of 14 October 2002 before flying out of Bali later that day.
The applicant accepted that a “temporal element” should be implied into para (a) of s 1061PAA(2) to the effect that that paragraph requires that the person be in the place where the relevant terrorist act occurred at the time when it occurred but he submitted that, being at the Adi Dharma Hotel when the bombing at the Sari Club occurred, he was “in the place where [that] terrorist act occurred” at the time when it occurred because he was, at that time, in close enough proximity to physically experience or perceive that terrorist act and did in fact physically experience and perceive that terrorist act first-hand at the time when it occurred. The Tribunal does not accept that submission for the following reasons.
The foundation for that submission was the applicant’s submission to the effect that the Social Security (Declared Overseas Terrorist Act) Declaration 2013, made by the Prime Minister under s 35B(1) of the SS Act, whereby various “terrorist acts”, including (relevantly):
“ the bombings at Paddy’ 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”
are “declared overseas terrorist acts”, does not define or prescribe the meaning of the phrase “in the place where the terrorist act occurred” for the purposes of para (a) of s 1061PAA(2) of the SS Act. The Tribunal does not accept that submission. In the Tribunal’s opinion, s 35B(1) of the SS Act necessarily authorises the Prime Minister to specify, not only the “action or threat of action” which is declared to be “a declared overseas terrorist act”, but also the place or location where the relevant “terrorist act” occurred and the date on which it occurred. The Social Security (Declared Overseas Terrorist Act) Declaration 2013 specifies, in respect of the 2002 Bali bombings:
·the action which constituted the terrorist acts, namely, “bombings”;
·the places (“in Bali, Indonesia”) where the terrorist acts occurred, namely, “at Paddy’s Bar on Jelan Legian, Kuta”; “at the Sari Club, Kuta”; “in the vicinity of the US Consulate, Renon, Denpasar”; and
·the date on which the terrorist acts occurred, namely, “12 October 2002”;
and was, in the Tribunal’s opinion, a valid exercise of the power conferred by s 35B(1) of the SS Act. The Tribunal, furthermore, is of the opinion that the place or location of a “declared overseas terrorist act”, as specified in a declaration made under s 35B(1) of the SS Act, is “the place where the terrorist act occurred” within the meaning, and for the purposes, of para (a) of s 1061PAA(2) of the SS Act.
Accordingly, in the present case, para (a) of s 1061PAA(2) of the SS Act will be satisfied only if the applicant was “in the place where” the relevant “declared overseas terrorist act”, namely, the bombing at the Sari Club, Kuta, Bali, Indonesia on 12 October 2002, occurred.
Having regard to the evidence before it, the Tribunal finds that, at the time when the abovementioned “declared overseas terrorist act” at the Sari Club occurred, the applicant was in the Adi Dharma Hotel situated approximately 600 metres in a straight line and 1.9 kilometres by the most direct route by road from the Sari Club. In the Tribunal’s opinion, “the place where [that] terrorist occurred”, for the purposes of para (a) of s 1061PAA(2) of the SS Act, is “at the Sari Club, Kuta”, and the Adi Dharma Hotel is neither at that place nor in close proximity thereto.
The Tribunal finds, therefore, that, at the time when the relevant “declared overseas terrorist act”, namely, the bombing at the Sari Club, Kuta, Bali, Indonesia on 12 October 2002, occurred, the applicant was not “in the place where [that] terrorist act occurred”, within the meaning, and for the purposes, of para (a) of s 1061PAA (2) of the SS Act.
The Tribunal accepts the respondent’s submission that, although para (a) of s 1061PAA(2) of the SS Act does not expressly include a temporal element to the effect that the person was in the place where the terrorist act occurred at the time when it occurred, such a temporal requirement is necessarily to be implied from the terms of s 1061PAA(2) as a whole. The Tribunal notes that such an interpretation of para (a) of s 1061PAA(2) is consistent with the discussion of para (a) in the Revised Explanatory Memorandum relating to the AVTOP Bill (Exhibit R2 – see paragraph 30 above): see s 15AB(1)(b), (2)(e) of the Acts Interpretation Act 1901 (Cth). The Tribunal also notes that, although the applicant disputed the respondent’s submission regarding the meaning of the phrase “in the place where the terrorist act occurred” in para (a) of s 1061PAA(2), he did not dispute the respondent’s submission that para (a) necessarily also involves a temporal element to the abovementioned effect.
The Tribunal concludes, therefore, that para (a) of s 1061PAA(2) of the SS Act is not satisfied in the applicant’s case.
That conclusion makes it unnecessary for the Tribunal to consider whether para (b) of s 1061PAA(2) of the SS Act is satisfied in the applicant’s case. Suffice it to say that the Tribunal accepts the respondent’s submission to the effect that para (b) of s 1061PAA(2) is also not satisfied because the applicant was not “in the place where” the relevant terrorist act occurred at the time when it occurred and the harm to his mental health which he subsequently suffered was suffered by him as a result of his voluntarily and unnecessarily attending the site of that terrorist act after it had occurred, not “as a direct result of” that terrorist act itself.
Conclusion
The Tribunal, of course, accepts that Part 2.24AA of the SS Act is beneficial and remedial legislation and should, accordingly, be interpreted liberally rather than narrowly or technically. Pursuant to s 15AA of the Acts Interpretation Act 1901 (Cth), furthermore, the interpretation of s 1061PAA(2) that would “best achieve the purpose or object” of Part 2.24AA “is to be preferred to each other interpretation”.
As regards the interpretation of para (a) of s 1061PAA(2) of the SS Act, the Tribunal is of the opinion that the applicant’s submission regarding the meaning of the phrase “in the place where the terrorist act occurred” in that paragraph involves a construction of that paragraph which is both “unreasonable” and “unnatural” having regard to the language of that paragraph (IW v City of Perth, above, at 12) and which, in any event, is based on a misinterpretation of s 35B(1) of the SS Act and the Social Security (Declared Overseas Terrorist Act) Declaration 2013 made thereunder. In the Tribunal’s opinion the respondent’s submission regarding the meaning of the phrase “in the place where the terrorist act occurred” in para (a) of s 1061PAA(2) accords with the natural meaning of that phrase, is consistent with s 35B(1) of the SS Act and the abovementioned Declaration, and is in accordance with the intention of that paragraph as indicated in the Revised Explanatory Memorandum relating to the AVTOP Bill.
The Tribunal concludes that para (a) of s 1061PAA(1) of the SS Act is not satisfied in the applicant’s case and that, therefore, the applicant is not qualified for an AVTOP under that subsection.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
......[sgd D Brodie]......................................
Administrative Assistant
Dated 14 May 2015
Date of hearing 8 April 2015 Representative of the Applicant Mr P Weeks Solicitors for the Applicant Graham & Associates Counsel for the Respondent Mr P Macliver Solicitor for the Respondent Australian Government Solicitor
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