Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Social Security Act 1991

Legislative Authority

This instrument is the Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023 (the 2023 Principles). It is made under subsection 1061PAF(1) of the Social Security Act 1991 (Social Security Act), which provides that:

The Minister must, by legislative instrument, determine the principles (the AVTOP Principles) to be applied for the purposes of determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act.

The Social Security Act governs entitlement to and administration of a number of benefits. Part 2.24AA of the Social Security Act governs the Australian Victim of Terrorism Overseas Payment (AVTOP) scheme.

The AVTOP scheme ensures an Australian resident who is harmed or whose close family member is killed as a direct result of a ‘declared overseas terrorist act’ has access to financial assistance of up to $75,000.

Division 1 of Part 2.24AA of the Social Security Act sets out the qualification criteria for the AVTOP payment. Subsection 1061PAA(1) in Division 1 provides that a person is qualified for an AVTOP payment if:

the person is a primary victim or a secondary victim of a declared overseas terrorist act;
the person and the person’s close family members were not involved in the commission of the terrorist act; and
the person is an Australian resident on the day the terrorist act occurred (or is covered in a ministerial determination under subsection 1061PAA(6)).

A ‘declared overseas terrorist act’ is defined in subsection 23(1) of the Social Security Act to mean a terrorist act in respect of which there is a declaration under subsection 35B(1) of that Act. Subsection 35B(1) of the Social Security Act provides that the Prime Minister may, by legislative instrument, declare that a terrorist act that occurs outside Australia is a declared overseas terrorist act.

Background

The Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 amended the Social Security Act in 2013 to establish the AVTOP scheme for the provision of financial assistance for Australians who are victims of a declared overseas terrorist act. The establishment of this comprehensive financial assistance framework acknowledges the collective responsibility of the Australian community to help individuals recover from overseas terrorist acts. The amendments required the enactment of a legislative instrument to provide further guidance on the amount of assistance that each victim, or close family member, should receive.

The instrument setting out the principles for the AVTOP scheme under subsection 1061PAF(1) of the Social Security Act was the Social Security (Australian Victim of Terrorism Overseas Payment) Principle 2013 (2013 Principle). The 2013 Principle commenced on 13 June 2013 and is repealed by the 2023 Principles. The 2013 Principle would otherwise be due to be repealed by sunsetting on 1 October 2023 in accordance with subsection 50(1) of the Legislation Act 2003 (the Legislation Act).

The Department of Home Affairs (the Department) reviewed and assessed the necessity and performance of the 2013 Principle and the Minister for Home Affairs found that it was achieving its objectives efficiently and effectively. The Minister for Home Affairs decided that the 2013 Principle should be repealed and replaced substantively in the same form to ensure the AVTOP scheme can continue to operate.

Sections 1061PAD and 1061PAE of the Social Security Act provide that total amount of an AVTOP payable to a victim is capped at $75,000. Specifically, section 1061PAD of the Social Security Act provides that the payment to a person who is a primary victim of a declared overseas terrorist act is not to exceed $75,000. Section 1061PAE of the Social Security Act provides that the payment to a person who is a secondary victim of a declared overseas terrorist act is not to exceed $75,000.

The terms ‘primary victim’ and ‘secondary victim’ are defined in subsection 23(1) of the Social Security Act to have the meaning given by section 1061PAA of that Act.

Subsection 1061PAA(2) of the Social Security Act provides that a person is a primary victim of a declared overseas terrorist act if the person was in the place where the terrorist act occurred, and was harmed (within the meaning of the Criminal Code) as a direct result of the terrorist act.

Subsection 1061PAA(3) of the Social Security Act provides that a person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who was in the place where the terrorist act occurred, and died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.

Financial assistance under the AVTOP scheme does not replace existing forms of assistance such as the Disaster Health Care Assistance Scheme and the Australian Government Disaster Recovery Payment.

Purpose and effect

The purpose of the 2023 Principles is to determine the principles to be applied in determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act.

The 2023 Principles repeal and replace the 2013 Principle in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). Subsection 33(3) of the Acts Interpretation Act provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. To this effect, the operative provisions in the 2013 Principle are remade with modifications, simplifying key concepts, modernising structure and clarifying operation to make clear and reflect the current policy intent.

Subsection 1061PAF(2) of the Social Security Act provides that the AVTOP Principles made under subsection 1061PAF(1) may provide that the factors set out in subsection 1061PAF(2) may be taken into account when determining the amount of an AVTOP payment.

Subsection 1061PAF(3) of the Social Security Act provides that the AVTOP Principles may specify circumstances in which the amount of an AVTOP is nil.

Part 2 of the 2023 Principles determines the principles for payment of an AVTOP to a primary victim. The 2023 Principles determine a range of factors in relation to the amount payable for a primary victim, including the following:

the nature of any injuries suffered by the primary victim;
the impact of the terrorist act on the primary victim’s life;
if, and to what extent, the primary victim contributed to the injuries;
if, and to what extent, the primary victim received financial assistance from a foreign country for an injury arising from the terrorist act.

Part 3 of the 2023 Principles determines the principles for payment of an AVTOP to a secondary victim. The 2023 Principles determine a range of factors in relation to the amount payable for a secondary victim, including the following:

the nature of the relationship between the secondary victim and the deceased person;
if other people have qualified as a secondary victim in relation to the deceased person;
if, and to what extent, the deceased person contributed to their death;
if, and to what extent, the secondary victim received financial assistance from a foreign country for the deceased person’s death.

The 2023 Principles minimise the use of subjective tests and discretion, and where appropriate, ensure the decision maker has clear principles as to how a claim should be assessed. However, the personal circumstances of each victim are likely to vary and, in some instances, be complex. This is likely to be particularly evident when assessing the eligibility of close family members of a person who has died. As such, it is important that the 2023 Principles can be applied to take these circumstances into account whilst ensuring the AVTOP scheme is not so complex that it is unworkable.

The AVTOP scheme is not intended to displace the responsibility of prudent travellers to consider taking other measures to protect against the risk of a terrorist act, or the role of other Australian Government programs that assist victims of overseas terrorism.

Consultation

Subsection 1061PAG(1) of the Social Security Act provides that, before making principles for the AVTOP scheme under section 1061PAF, the Minister must consult with representatives of the following groups:

(a) victims of overseas terrorist acts and their families;

(b) community or welfare organisations;

(d) international humanitarian agencies;

(e) any other persons the Minister considers appropriate to consult.

The Department on behalf of the Minister for Home Affairs has undertaken review of the 2013 Principle and consulted with a range of groups through a public call for submissions and a direct invitation for submissions from key bodies before remaking the 2013 Principle, including the following:

Services Australia and other Government agencies;
community and welfare organisations;
health professionals;
international humanitarian agencies; and
victim and survivors of overseas terrorist acts and/or their families.

Prior to undertaking consultation, the Department consulted with relevant agencies to ensure engagement was appropriately directed for victim and their families, to carefully manage sensitivities and mitigate risks of re-traumatisation.

No concerns were raised on whether the 2013 Principle adequately achieves its purpose of assessing the eligibility of a claimant for an AVTOP. The Department also sought views on the injuries outlined in Schedule 1 to the 2013 Principle and the appropriateness of the quantum of AVTOP payable (up to $75,000) for those injuries. The Department has considered the consultation outcomes and updated the list of injuries specified in Schedule 1 to the 2023 Principles to incorporate the feedback provided during consultation.

The Office of Impact Analysis (OIA) was also consulted and considered that the instrument dealt with matters of a minor or machinery nature and no regulatory impact analysis was required. The OIA reference number is OIA23-04929.

Details and operations

The Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023 is a legislative instrument for the purposes of the Legislation Act.

Section 2 of the instrument provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.

Details of the 2023 Principles are set out in Attachment A.

Parliamentary scrutiny etc.

The Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023 is made under subsection 1061PAF(1) of the Social Security Act, and is subject to disallowance under section 42 of the Legislation Act.

The Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is set out in Attachment B.

ATTACHMENT A

Details of the Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023

Part 1—Preliminary

Section 1 Name

This section provides that the name of the instrument is the Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023 (2023 Principles). It may also be cited as AVTOP Principles 2023.

Section 2 Commencement

2. This section provides that the 2023 Principles commences on the day after it is registered on the Federal Register of Legislation.

Section 3 Authority

3. This section sets out the authority under which the 2023 Principles is made, which is subsection 1061PAF(1) of the Social Security Act 1991 (Social Security Act).

Section 4 Definitions

4. This section defines terms frequently referred to throughout, and abbreviations used in, the 2023 Principles. This section also notes that certain terms (being AVTOP or Australian Victim of Terrorism Overseas Payment, child, declared overseas terrorist act, parent, partner, primary victim, principal carer, secondary victim, Secretary and terrorist act) have the same meaning as in the Social Security Act.

5. Section 4 defines the following terms for the 2023 Principles:

Act means the Social Security Act 1991.
deceased person means a person who died as a direct result of a declared overseas terrorist act.
injury means an injury mentioned in Schedule 1 to this instrument.

Section 5 Repeals

6. This section provides that the Social Security (Australian Victim of Terrorism Overseas Payment) Principle 2013 (2013 Principle) is repealed.

Section 6 Schedules

7. This section provides that each item in a Schedule to the 2023 Principles has effect according to its terms.

Part 2—Principles relating to primary victims

8. Section 1061PAF requires the Minister to determine the principles (the AVTOP Principles) to be applied for the purposes of determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act.

9. Paragraph 1061PAF(2)(a) of the Social Security Act outlines that the AVTOP Principles may provide the factors to be taken into account when determining the AVTOP payable to a primary victim.

10. Paragraph 1061PAF(2)(c) of the Social Security Act provides that the AVTOP Principles may provide the factors to be taken into account when determining the AVTOP payable to either a primary or secondary victim.

11. Subsection 1061PAF(3) of the Social Security Act provides that the AVTOP Principles may specify circumstances in which the amount of an AVTOP is nil.

12. Accordingly, Part 2 of the 2023 Principles determines for paragraphs 1061PAF(2)(a) and (2)(c) and subsection 1061PAF(3) of the Social Security Act, the factors to be taken into account when determining the amount payable in an AVTOP to primary victims.

Division 2.1 General approach to determining AVTOP for primary victims

13. Division 2.1 of the 2023 Principles sets out the general approach to determining the total amount of an AVTOP payable to a primary victim of a declared overseas terrorist act for the purposes of section 1061PAF of the Social Security Act.

14. Division 2.1 of the 2023 Principles sets out that the Secretary must use the calculators set out in the Division when determining the amounts payable under an AVTOP.

Section 7 Determining amount of AVTOP

15. Section 1061PAD of the Social Security Act provides that the Secretary must determine the amount of an AVTOP payable to a person who is a primary victim of a declared overseas terrorist act in accordance with the AVTOP Principles.

16. Subsection 7(1) of the 2023 Principles sets out the required steps which must be followed by the Secretary in determining the total amount of an AVTOP payable to a primary victim of a declared overseas terrorist act who was at least 16 years at the time of the terrorist act.

17. In the Total Amount Calculator set out subsection 7(1), the Secretary must take into account the following factors in relation to a primary victim aged 16 years or above:

the nature of any injuries suffered by the primary victim;
the effects of the terrorist act on the primary victim’s life
the amount of any financial assistance the primary victim has received from a foreign country for any injuries arising from the terrorist act; and
the circumstances in which any injuries happened.

18. Subsection 7(2) sets out the required steps which must be followed by the Secretary in determining the total amount of an AVTOP payable to a primary victim of a declared overseas terrorist act who was under the age of 16 years at the time of the terrorist act.

19. In the Total Amount Calculator set out subsection 7(2), the Secretary must take into account the following factors in relation to a primary victim aged 16 years or above:

the nature of any injuries suffered by the primary victim;
the effects of the terrorist act on the primary victim’s life
the amount of any financial assistance the primary victim has received from a foreign country for any injuries arising from the terrorist act.

20. Subsection 7(1) differs from 7(2) as the Secretary must assess the circumstances in which the primary victim incurred the injury if the victim was at least 16 years at the time of the terrorist act. These circumstances are set out in section 12 of the 2023 Principles (as explained below).

21. The circumstances set out in section 12 of the 2023 Principles are not relevant in relation to victims who were under 16 years of age at the time of the terrorist act. This reflects the Australian Government’s policy intention to recognise the vulnerability of primary victims under 16 years. Unlike persons aged 16 years or above, persons under 16 years would not have had sufficient independent capacity to make decisions that might have increased their level of risk.

Division 2.2 Nature of primary victim’s injury

Section 8 AVTOP payable for nature of the injury

22. This section provides that the Secretary must work out the amount payable for the nature of an injury suffered by a primary victim of a declared overseas terrorist act in accordance with Schedule 1 to the 2023 Principles. When working out the amount payable for the nature of an injury, the Secretary must not determine an amount payable for a primary victim’s scarring that is not permanent.

23. The 2023 Principles differ from the 2013 Principle since it no longer prohibits the Secretary from taking into account both burns and permanent scarring to the same body part (as listed in Schedule 1) when determining the amount of an AVTOP payable to the same body part to a primary victim.

24. Whilst the previous policy considered either burns or permanent scarring to the same body part, following consultation it is now the policy intention to recognise that a primary victim’s burns to a part of the body and the primary victim’s scarring of that part of the body caused by the burns have different impacts and can be jointly taken into account when determining the amount of AVTOP payable to the primary victim.

Section 9 AVTOP payable for multiple injuries

25. This section provides for situations where a primary victim has suffered more than one injury as a direct result of the terrorist act, in which case the Secretary must determine the total amount of AVTOP payable for the nature of multiple injuries using the calculator provided in subsection 9(1).

26. In the event that a primary victim suffers multiple injuries, subsection 9(2) provides that only the three most severe injuries will be taken into account, in order to limit consideration of any additional injuries.

27. Subsection 9(3) defines the three most severe injuries for section 9:

most serious injury means any injury suffered by a primary victim of a declared overseas terrorist act that qualifies for the highest amount out of all the victim’s injuries.
second most serious injury means any injury suffered by a primary victim of a declared overseas terrorist act that:

(a) qualifies for the second highest amount out of all the victim’s injuries; or

(b) qualifies for the same amount as for the most serious injury.

third most serious injury means any injury suffered by a primary victim of a declared overseas terrorist act that:

(a) qualifies for the third highest amount out of all the victim’s injuries; or

(b) qualifies for the same amount as for the second most serious injury.

Division 2.3 Primary victim at least 16 years

28. Division 2.3 of the instrument sets out how the Secretary must assess the injuries of a primary victim at least 16 years of age in determining the amount payable for an AVTOP for that person.

Section 10 Application of this Division

29. This section provides that Division 2.3 applies to a primary victim of a declared overseas terrorist act who was at least 16 years at the time of the terrorist act.

Section 11 Assessing effects of terrorist act on primary victim at least 16 years

30. This section provides that the Secretary must work out the amount payable to the primary victim for the effects of the terrorist act on the victim’s life by following the required steps outlined in the Effects Calculator in this provision, if the amount worked out under Division 2.2 is less than $75 000.00.

31. Details of the effects are set out in Schedule 2 to the 2023 Principles, which include the effects on the primary victim’s personal relationships, mobility, recreational and community activities, domestic activities and employment activities.

32. The purpose of this section is to ensure primary victims whose lives are affected by a declared terrorist act are given appropriate financial support under Part 2.24AA of the Social Security Act where they are not eligible for the maximum amount of $75,000 payable under Division 2.2.

Section 12 Assessing the circumstances in which injury incurred to primary victim at least 16 years

33. Subsection 12(1) provides that the Secretary must consider the circumstances surrounding the primary victim’s injury in order to determine whether a reduction in the amount of an AVTOP payable is required.

34. These circumstances are set out under subsection 12(2), which include the following:

(a) if the primary victim failed to take reasonable steps to avoid harm or acted recklessly when the terrorist act occurred;

(b) if the primary victim travelled to the place where the terrorist act occurred despite travel advice on an Australian Government website advising people to reconsider the need to travel to that place because of a high risk of a terrorist act;

(c) if the primary victim travelled to the place where the terrorist act occurred despite travel advice on an Australian Government website advising against travelling to that place because of a high risk of a terrorist act;

(d) if the primary victim was directed by an official of Australia or a foreign country to leave or not to go to the place where the terrorist act occurred because of a high risk of a terrorist act.

35. If any of the above-mentioned circumstances apply, the Secretary must reduce the amount of an AVTOP payable to the primary victim in accordance with the reduction percentage mentioned for that circumstance under subsection 12(2).

36. However, under subsection 12(3) of the instrument, there is not to be a reduction of payment in relation to the circumstances set out in subsection 12(2) if:

the primary victim was in the place where the terrorist act occurred for a humanitarian purpose, or was on official business for the government of the Commonwealth, a State or Territory; or
the Secretary considers it is appropriate, in the circumstances of the particular case, not to reduce the amount payable to the primary victim.

Division 2.4 Primary victim under 16 years

37. Division 2.4 of the instrument sets out how the Secretary must assess the injuries of a primary victim under 16 years of age in determining the amount payable for an AVTOP for that person. This recognises that the effects of a terrorist act on a child would be different from the effects the same act would have on a person over 16 years.

Section 13 Application of this Division

38. This section provides Division 2.4 applies to a primary victim of a declared overseas terrorist act who was under 16 years at the time of the terrorist act.

Section 14 Assessing effects of terrorist act on primary victim under 16 years

39. This section provides that the Secretary must work out the amount payable to the primary victim for the effects of the terrorist act on the victim’s life following the required steps mentioned in the Effects Calculator in this provision, if the amount worked out under Division 2.2 is less than $75 000.00.

40. Details of the effects on the primary victim’s life are set out in Schedule 3 to the 2023 Principles, which include the following:

(a) sleeping habits;

(b) communication skills;

(d) toilet habits;

(e) mobility;

(f) concerning or unusual behaviours;

(g) anxiety, fear or depression;

(h) further medical requirements.

41. The Secretary may also consider the following effects on the life of a primary victim under 16 years, providing the primary victim demonstrated the relevant skills appropriate to the victim’s age and circumstances before the terrorist act:

(a) hygiene and grooming skills;

(b) learning or concentration;

(d) enjoyment or participation.

42. The purpose of this section is to ensure primary victims whose lives are affected by a declared terrorist act are given appropriate financial support under Part 2.24AA of the Social Security Act where they are not eligible for the maximum amount of $75,000 payable under Division 2.2.

Part 3—Principles for secondary victims

43. Section 1061PAE of the Social Security Act provides that the Secretary must determine the amount of an AVTOP payable to a person who is a secondary victim of a declared overseas terrorist act in accordance with the AVTOP Principles.

44. Paragraph 1061PAF(2)(b) of the Social Security Act provides that the AVTOP Principles may provide the factors to be taken into account when determining the AVTOP payable to a secondary victim in relation to a close family member who died in a terrorist act.

45. Paragraph 1061PAF(2)(c) of the Social Security Act provides that the AVTOP Principles may provide the factors to be taken into account when determining the AVTOP payable to either a primary or secondary victim.

46. Subsection 1061PAF(3) of the Social Security Act provides that the AVTOP Principles may specify circumstances in which the amount of an AVTOP is nil.

47. Accordingly, Part 3 of the instrument sets out for paragraphs 1061PAF(2)(b) and (2)(c) and subsection 1061PAF(3) of the Social Security Act the factors to be taken into account when determining the amount payable in an AVTOP to secondary victims.

48. The amount of an AVTOP payable to a secondary victim will depend on various factors that the Secretary must consider, including the following:

(a) the nature of the relationship between the secondary victim and the deceased person;

(b) if other people have qualified as a secondary victim in relation to the deceased person;

(d) if, and to what extent, the secondary victim received financial assistance from a foreign country for the deceased person’s death.

Section 15 Determining amount of AVTOP if death occurred

49. Subsection 15(1) provides that, where the primary victim was at least 16 years of age at the time of the terrorist act, the Secretary must determine the total amount of AVTOP payable to a secondary victim using the steps set out in the calculator in the subsection.

50. The factors to be taken account under the calculator in subsection 15(1) include:

the amount of any AVTOP that has been paid to the primary victim;
whether the amount payable should be reduced because of circumstances relating the primary victim under section 16;
whether the primary victim received financial assistance from a foreign country in relation to injuries suffered in the terrorist act;
whether the secondary victim (or secondary victims) has received financial assistance from a foreign country in relation to injuries suffered by the primary victim in the terrorist act.

51. Subsection 15(2) provides that, where the primary victim was under 16 years of age at the time of the terrorist act, the Secretary must determine the total amount of AVTOP payable to a secondary victim using the steps set out in the calculator in the subsection.

52. The factors to be taken account under the calculator in subsection 15(2) include:

the amount of any AVTOP that has been paid to the primary victim;
whether the primary victim received financial assistance from a foreign country in relation to injuries suffered in the terrorist act;
whether the secondary victim (or secondary victims) has received financial assistance from a foreign country in relation to injuries suffered by the primary victim in the terrorist act.

53. Subsection (2) differs to subsection (1), as it is the policy intention to recognise the vulnerability of primary victims under 16 years and not take into consideration the circumstances surrounding the death of the primary victim.

Section 16 Assessing the circumstances in which primary victim of at least 16 years died

54. Subsection 16(1) provides that the Secretary must determine if the amount payable under an AVTOP to a secondary victim should be reduced because of any circumstances applying to the primary victim, where the primary victim was at least 16 years of age at the time of the terrorist act. The amount of the reduction (if any) is to be calculated using the calculator set out in subsection 16(1).

55. The steps set out in the calculator in subsection 16(1) are:

Determine whether any of the circumstances set out in subsection 16(2) apply;
If any one of those circumstances apply, work out the applicable percentage reduction;
If 2 or more of those circumstances apply, use the highest applicable percentage reduction.

56. Subsection 16(2) determines the percentage reduction applicable according to the circumstances set out in the table in the subsection. In summary, the table provides for particular percentage reductions where the primary victim over 16 years:

failed to take reasonable steps to avoid harm or acted recklessly;
travelled to a country despite advice on an Australian Government website to reconsider travel to that country;
travelled to a country despite advice on an Australian Government website against travelling to that country because of the risk of a terrorist act;
was directed by an official of Australia or a foreign country to leave or not to go to the place where the terrorist act occurred because of a high risk of a terrorist act.

57. An example of an Australian Government website under subsection 16(2) is www.smartraveller.gov.au published by the Department of Foreign Affairs and Trade.

58. Subsection 16(3) sets out circumstances in which the Secretary is not required to determine if an AVTOP payment should be reduced under subsection 16(1). These circumstances include:

the deceased person was in the country at the time of the terrorist act for humanitarian reasons or was on official business of the Commonwealth, State or Territory governments;
the Secretary considers it appropriate not to reduce the payment in the circumstances;
the primary victim was under 16 years at the time of the terrorist act.

Section 17 Apportioning payments among secondary victims

59. This section applies if more than 1 person has made a claim as a secondary victim of a deceased primary victim of a declared overseas terrorist act. The payment to secondary victims will be apportioned according to the nature of the relationship between the deceased and the close family member in accordance with subsection 17(2).

60. Subsection 17(3) provides that the Secretary may distribute an amount of AVTOP among all secondary victims in certain circumstances where the Secretary considers appropriate.

61.

As it is the intention that the term close family member is to be applied broadly so numerous family members can qualify for the payment. State and territory succession laws have been adapted and modified to determine the priority of payment as it is the policy intention to apportion an amount of AVTOP to the family members who are likely to have a close relationship with the deceased.

Schedule 1—Injuries

62. This Schedule sets out a table of injuries and the amount payable for each injury. The amount specified in column 1 for each injury mentioned in column 2 of the table varies depending on the severity of the injury. The intention is to provide for greater payments in relation to more severe, enduring and chronic injuries. For instance, the fracture of 1 hand (full recovery) is $8,000 whereas the loss of 1 hand would amount to $75,000.

63. The 2023 Principles have expanded the list of ‘psychological or psychiatric disorder or injury’ from the 2013 Principle, following feedback provided by peak medical bodies during consultation to better encapsulate the type of psychological or psychiatric disorder or injury that may present in victims of an overseas terrorist act, including the following:

(a) mild psychological or psychiatric injury (acute);

(b) mild psychological or psychiatric injury (recovered);

(d) mild psychological or psychiatric injury (enduring);

(e) moderate psychological or psychiatric injury (acute);

(f) moderate psychological or psychiatric injury (recovered);

(g) moderate psychological or psychiatric injury (episodic);

(h) moderate psychological or psychiatric injury (enduring);

(i) severe psychological or psychiatric injury (acute);

(j) severe psychological or psychiatric injury (recovered);

(k) severe psychological or psychiatric injury (episodic);

(l) severe psychological or psychiatric injury (enduring).

64. These psychological or psychiatric disorders or injuries would not necessarily need to be present in an individual at the time of claiming an AVTOP payment, as the declaration of an overseas terrorist act could occur at any time after the terrorist act. At the time of making an AVTOP claim, the claimant will be required to provide evidence regarding the severity and length of the injury, and evidence that the psychological or psychiatric disorder or injury occurred as a direct result of the declared overseas terrorist act.

65. In addition, the 2023 Principles include ‘recovered’ psychological or psychiatric disorders or injuries, as it is not the policy intention to exclude a victim from claiming an AVTOP payment on the basis that the victim had recovered from a psychological or psychiatric disorder or injury at the time the declaration of that overseas terrorist act was made by the Prime Minister, in circumstances where a period of time passed between the overseas terrorist act and the time the declaration was made.

66. It will be necessary for an appropriately qualified health professional to assess a victim’s injury. This medical evidence, together with the Schedule, will be considered when determining the amount payable. For example, an approved healthcare or mental healthcare professional such as a psychiatrist or psychologist would make an assessment about whether the person has suffered a psychological or psychiatric disorder or injury.

Schedule 2—Effects calculator – at least 16 years

67. This Schedule sets out the amount payable to a primary victim for the effects of the terrorist act on the victim’s life for the purposes of section 11 of the 2023 Principles, providing the victim was at least 16 years at the time of the declared overseas terrorist act, including the effects on the primary victim’s personal relationships, mobility, recreational and community activities, domestic activities and employment activities.

Personal relationships

68. Clause 1 of Schedule 2 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s personal relationships in accordance with the rating of the effects on a scale of nil to 7 set out in column 1 of the table under that clause.

69. A rating of 0 means no or negligible effects on personal and social relationships.

70. A rating of 1 means the primary victim’s personal and social relationships are fairly satisfying. For example, whilst intermittent disadvantages may inhibit, it does prevent the primary victim’s participation in an accustomed range of social and personal activities.

71. A rating of 2 means mild effects on personal and social relationships. For example, the primary victim’s social contact activities would be reduced, or participation in an accustomed range of activities would be restricted.

72. A rating of 3 means moderate effects on personal and social relationships. For example, the primary victim’s relationships are usually confined to family, close friends, colleagues and neighbours. The primary victim would be unable to relate to casual acquaintances.

73. A rating of 4 means marked effects on relationships. For example, the primary victim’s most relationships would be unsatisfying, maintenance of usual relationships with relatives, friends, neighbours and colleagues is difficult. After the declared overseas terrorist act, the primary victim spends much less time socialising than was the case formerly.

74. A rating of 5 means severe effects on relationships. For example, the primary victim would be able to relate only to particular, or a few people such as their spouse or child. All other relationships would be strained and of low quality.

75. A rating of 6 means extreme difficulty in relating to anyone. For example, the primary victim has difficulties in relating because of psychosis, or ability to communicate is restricted due to stroke or other effect of accepted conditions.

76. A rating of 7 means all relationships are prevented. For example, the primary victim would be unable to relate to anyone and all relationships would be prevented.

Mobility

77. Clause 2 of Schedule 2 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s mobility in accordance with the rating of the effects on a scale of nil to 7 set out in column 1 of the table under that clause.

78. A rating of 0 means no or minimal restrictions of mobility, or full mobility.

79. A rating of 1 means intermittent or periodic effects on mobility. For example, the primary victim’s mobility may only be affected when impairment such as sciatica or angina is present, with no restrictions between attacks. If the primary victim has a permanent impairment such as night blindness, the effect is only sporadically limiting.

80. A rating of 2 means mild effects on mobility. For example, the primary victim may demonstrate a slowing of pace in some circumstances or may require a walking stick or other aid.

81. A rating of 3 means moderately reduced mobility. For example, the primary victim’s mobility would be curtailed or diminished because of frailty, lack of confidence or moderate agoraphobia. The primary victim may need to travel as a passenger in private and public transport, possible in most circumstances without the need for a break or for special seating arrangements, or the primary victim may be dependent on a walking stick or similar aid. A further example is where, the primary victim may be independent in leaving home and reaching their destination but may experience some difficulty.

82. A rating of 4 means markedly reduced mobility. For example, the primary victim would need assistance to cope with public or private transport. It is likely the primary victim would have considerable difficulty in travelling to and from a destination and would be restricted in the use of at least 2 forms of public transport.

83. A rating of 5 means major impediments to mobility. For example, the primary victim would be dependent upon others or mechanical devices such as a wheelchair. The primary victim may have considerable difficulty in travelling to and from a destination or be restricted in the use of at least 2 forms of public transport.

84. A rating of 6 means severe impediments to mobility. For example, the primary victim would be restricted to their home or immediate vicinity, unless they have access to door to door transport and assistance from others. The primary victim is unable to drive a car in any circumstance.

85. A rating of 7 means the primary victim would be restricted to a room or chair. For example, the primary victim would have severe agoraphobia permanently confined to their cone, dependent on others or hoists or similar appliances to get in and out of bed.

Recreational and community activities

86. Clause 3 of Schedule 2 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s recreational and community activities in accordance with the rating of the effects on a scale of nil to 7 set out in column 1 of the table under that clause.

87. A rating of 0 means the primary victim would be able to undertake the full range of usual recreational pursuits and community activities.

88. A rating of 1 means intermittent interference with recreational pursuits and community activities. For example, the primary victim between episodes would be able to continue with a range of accustomed recreational pursuits and community activities.

89. A rating of 2 means mild but constant interference with accustomed recreational pursuits and community activities. For example, the primary victim would still be able to continue with their accustomed recreational pursuits and community activities, even if it was less frequently, or may be able to enjoy alternative activities.

90. A rating of 3 means the primary victim would be unable to continue some accustomed recreational pursuits and community activities. For example, the primary victim would be unable to continue competition sporting activities such as golf, tennis or bowls, but would still able to enjoy most other activities such camping, hobbies, going visiting or watching sport. The primary victim would be unable to perform some community or voluntary activities involving physical activity such as working bees, but would still able to participate in most other activities such welfare work or fund raising work.

91. A rating of 4 means the primary victim would be unable to take part in previously favoured recreational pursuits, leisure and community activities. For example, the primary victim would be restricted to generally non-active interests such as music, art, stamp or coin collecting or attending clubs. The primary victim would be unable to participate in accustomed activities such as camping, going for long walks, fishing or voluntary activities including meals on wheels.

92. A rating of 5 means greater reduction in the number and kind of recreational activities which can be undertaken. Some assistance would be required to undertake the activities that are still possible. For example, the primary victim would be able to visit or go out if taken to and from a destination, or finds doing a hobby or relaxing such as stamp collecting, art and crafts, playing or listening to music, or playing cards, but it would be difficult for the primary victim to enjoy those activities due to pain, suffering, or loss of dexterity.

93. A rating of 6 means the primary victim would be able to engage in very few satisfying recreational activities. For example, the primary victim would be restricted to a few passive activities such as watching television, listening to the radio, reading or receiving visitors.

94. A rating of 7 means the primary victim would be unable to take part in any recreational activities. For example, the primary victim would have severe agoraphobia permanently confined to their cone, dependent on others or hoists or similar appliances to get in and out of bed.

Domestic activities

95. Clause 4 of Schedule 2 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s domestic activities in accordance with the rating of the effects on a scale of nil to 7 set out in column 1 of the table under that clause.

96. A rating of 0 means the primary victim would be able to sustain any usual activities.

97. A rating of 1 means intermittent effects on usual activity.

98. A rating of 2 means the primary victim would be able to carry out accustomed activities, but has difficulty with some heavier activities. For example, the primary victim may have difficulty with heavy gardening activities such as digging or pruning trees.

99. A rating of 3 means the primary victim would be unable to perform heavy activities. The primary victim’s would be unable to perform heavy activities but able to carry out lighter household tasks, taking breaks during sustained activity. For example, mowing the lawn, washing the car or performing light maintenance or gardening activities if working at own pace and taking breaks as necessary.

100. A rating of 4 means the primary victim would be unable to carry out a full range of usual household activities, particularly some moderate tasks which require exertion. For example, the primary victim may require assistance with vacuuming carpets, cleaning floors, mowing lawns or home repairs and maintenance.

101. A rating of 5 means limitation of household activity to a small range of light activities. For example, the primary victim would be able to water the garden but may have difficulty in weeding or pruning. The primary victim would be able to do some light household activities but may have difficulty bending to make beds or putting out the rubbish bin, or requires assistance with grocery shopping.

102. A rating of 6 means the primary victim’s would be able to carry out only very limited domestic activities, usually a restricted range of indoor activities and may require supervision. For example, the primary victim would be able to do very light tidying or dusting but would be unable to cook or prepare meals or they may have difficulty standing to set the table or wash dishes.

103. A rating of 7 means total dependency upon others for domestic activities.

Employment activities

104. Clause 5 of Schedule 2 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s employment activities in accordance with the rating of the effects on a scale of nil to 5 set out in column 1 of the table under that clause.

105. A rating of 0 means the primary victim would be able to engage in usual employment.

106. A rating of 1 means the primary victim’s ability to carry out their usual employment has been intermittently effected.

107. A rating of 2 means the primary victim would be able to follow accustomed employment but may have difficulty when carrying out their full range of occupational activities.

108. A rating of 3 means the primary victim would be unable to follow accustomed employment without modification to their workplace such as the provision of aids or restricting of tasks.

109. A rating of 4 means the primary victim would be unable to work full time in their usual occupation, or has had to change occupation or the number of hours worked, or both.

110. A rating of 5 means the primary victim would be unable to engage in work for remuneration.

Schedule 3—Effects calculator – under 16 years

111. This Schedule sets out the details of the amount payable to a primary victim for the effects of the terrorist act on the victim’s life for the purposes of section 14 of the 2023 Principles, providing the victim was under 16 years at the time of the declared overseas terrorist act, including the following:

(a) sleeping habits;

(b) communication skills;

(d) toilet habits;

(e) mobility;

(f) concerning or unusual behaviours;

(g) anxiety, fear or depression;

(h) further medical requirements.

112. The Secretary may also consider the following effects on a primary victim’s life, providing the primary victim demonstrated the relevant skills appropriate to the victim’s age and circumstances before the terrorist act:

(a) hygiene and grooming skills;

(b) learning or concentration;

(d) enjoyment or participation.

Sleeping habits

113. Clause 1 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s sleeping habits in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

114. A rating of 0 means no effects.

115. A rating of 1 means the primary victim very rarely has more difficulty getting to sleep or disrupted sleeping patterns. For example, the primary victim may have rare occasions of nightmares relating to the traumatic incident resulting in disrupted sleep.

116. A rating of 2 means the primary victim occasionally has more difficulty getting to sleep or disrupted sleeping patterns. For example, the primary victim may have occasional sleep disturbances including nightmares that decrease their sleep quality or exhibit anxiety that delays sleep.

117. A rating of 3 means, the primary victim frequently has more difficulty getting to sleep or disrupted sleeping patterns. For example, the primary victim may have frequent inability to fall asleep or changing sleep patterns including sustained nightmares, fear and anxiety interrupting sleep or episodes of terror.

Communication skills

118. Clause 2 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s communication skills in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

119. A rating of 0 means no effects.

120. A rating of 1 means the primary victim’s communication skills have slightly changed. For example, there may be rare instances where the primary victim is less able to communicate with peers and family at the same age capability as before the traumatic incident.

121. A rating of 2 means the primary victim’s communication skills have moderately changed. For example, there may be an occasional regress in communication capability, such as using ‘baby talk’ or the development of a significant stutter when experiencing distress.

122. A rating of 3 means the primary victim’s communication skills have significantly changed. For example, the primary victim would not be able to communicate at the level they could before the terrorist act and may require assistive technology to communicate their needs or be understood.

Eating habits

123. Clause 3 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s eating habits in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

124. A rating of 0 means no effects.

125. A rating of 1 means the primary victim’s eating habits have slightly been affected. For example, the primary victim occasionally may be unable to consume their typical diet that they would have consumed prior to the terrorist act.

126. A rating of 2 means the primary victim’s eating habits have moderately been moderately affected. For example, the primary victim does not eat the some food types, goes through periods of restricted food intake as a result of physical or psychological injury.

127. A rating of 3 means the primary victim’s eating habits have been significantly affected. For example, the primary victim has a severely restricted diet as a result of physical or psychological injury from the terrorist act.

Toilet habits

128. Clause 4 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s toilet habits in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

129. A rating of 0 means no effects.

130. A rating of 1 means the primary victim’s toilet habits have slightly been affected. For example, the primary victim may exhibit occasional bed wetting or accidents if not age appropriate but this would have limited to no impact on social engagement.

131. A rating of 2 means the primary victim’s toilet habits have moderately been moderately affected. For example, the primary victim intermittently has bed wetting accidents or a lack of control that may factor into social engagement or regression to an earlier stage of development such as requiring toilet training.

132. A rating of 3 means the primary victim’s toilet habits have been significantly affected. For example, the primary victim is unable to control bodily functions at the relevant age appropriate stage.

Mobility

133. Clause 5 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s mobility in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

134. A rating of 0 means no effects.

135. A rating of 1 means the primary victim’s mobility has slightly been affected. For example, the primary victim may exhibit curtailed or diminished mobility because of frailty, lack of confidence or moderate agoraphobia. In some certain circumstances the primary victim may demonstrate a slowing of pace or dexterity.

136. A rating of 2 means the primary victim’s mobility has moderately been moderately affected. For example, the primary victim would have a impediment to mobility and would be dependent upon others or mechanical devices, beyond what is age appropriate, such as a wheelchair.

137. A rating of 3 means the primary victim’s mobility has been significantly affected. For example, the primary victim has a major impediment to their mobility and is confined to the house or their bed as an on-going result.

Concerning or unusual behaviours

138. Clause 6 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s concerning or unusual behaviours in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

139. A rating of 0 means no effects.

140. A rating of 1 means the primary victim’s increase in concerning or unusual behaviours is very rarely exhibited or mildly worrying. For example, the primary victim has rarely exhibited worrying behaviours such as unprompted crying or aggression, their relationships, or daily activities are not affected.

141. A rating of 2 means the primary victim’s increase in concerning or unusual behaviours is occasionally exhibited or moderately worrying. For example, the primary victim occasionally displays behaviour that parents or carers find concerning such as acts of aggression or attentions seeking, but non-violent, trouble making.

142. A rating of 3 means the primary victim’s increase in concerning or unusual behaviours is exhibited or extremely worrying. For example, the primary victim is engaging in self-harm, significant signs of aggression, behaves erratically in ways that impact social relationships or education.

Anxiety, fear or depression

143. Clause 7 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s anxiety, fear or depression in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

144. A rating of 0 means no effects.

145. A rating of 1 means the primary victim’s increase in anxiety, fear or depression is very rarely exhibited. For example, the primary victim experiences rare episodes of heightened anxiety but daily activities are not impacted by ongoing anxiety, fear or depression.

146. A rating of 2 means the primary victim’s increase in anxiety, fear or depression is occasionally exhibited. For example, the primary victim experiences an increase in anxiety, fear or depression that occasionally impacts their life, by avoiding activities or areas that trigger anxiety or remind them of the terrorist act.

147. A rating of 3 means the primary victim’s increase in anxiety, fear or depression is frequently exhibited. For example, the primary victim is too anxious, fearful or depressed to engage in daily activities, cannot leave bed or the house.

Further medical requirements

148. Clause 8 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s further medical requirements in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause.

149. A rating of 0 means no effects.

150. A rating of 1 means the primary victim’s requirements for visits to a health professional, special medical equipment or medication has slightly increased. For example, the primary victim has required once off or irregular visits with health professional.

151. A rating of 2 means the primary victim’s requirements for visits to a health professional, special medical equipment or medication has moderately increased. For example, the primary victim has a pattern of regular, if infrequent, visits with health professional, required temporary use of medical equipment such as mobility aids while awaiting surgery for a leg injury.

152. A rating of 3 means the primary victim’s requirements for visits to a health professional, special medical equipment or medication has significantly increased. For example, the primary victim requires ongoing usage of medical equipment and/or ongoing medication is required and they have a frequent pattern of engagement with a recognised health professional.

Hygiene and grooming skills

153. Clause 9 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s hygiene and grooming skills in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause, providing the victim groomed, dressed or bathed independently before the terrorist act.

154. A rating of 0 means no effects.

155. A rating of 1 means the primary victim’s ability to groom, dress or bathe independently in his or her usual manner has been slightly affected. For example, it has a minor impact on the primary victim’s specific non-vital tasks, or there is a requirement and successful relearning of age appropriate tasks.

156. A rating of 2 means the primary victim’s ability to groom, dress or bathe independently in his or her usual manner has been moderately affected. For example, the primary victim is unable to undertake certain grooming or hygiene tasks that were previously completed independently. The primary victim demonstrates an extended period before a task could be relearnt and completed independently, or mostly independently.

157. A rating of 3 means the primary victim’s ability to groom, dress or bathe independently in his or her usual manner has been significantly affected. For example, the primary victim cannot groom, bathe or dress without assistance beyond what is age appropriate.

Learning or concentration

158. Clause 10 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s learning or concentration in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause, providing the victim demonstrated learning or concentration appropriate to the victim’s age and circumstances before the terrorist act.

159. A rating of 0 means no effects.

160. A rating of 1 means the primary victim’s ability to learn or concentrate has been slightly affected. For example, the primary victim’s classroom participation at school is occasionally impacted.

161. A rating of 2 means the primary victim’s ability to learn or concentrate has been moderately affected. For example, the primary victim requires some support in the school classroom, may require tutoring to achieve the same level of performance prior to the terrorist act.

162. A rating of 3 means the primary victim’s ability to learn or concentrate has been significantly affected. For example, the primary victim cannot engage in the school classroom.

Social skills

163. Clause 11 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s social skills in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause, providing the victim demonstrated social and community skills appropriate to the victim’s age and circumstances before the terrorist act.

164. A rating of 0 means no effects.

165. A rating of 1 means the primary victim’s ability to learn or concentrate has been slightly affected. For example, the primary victim’s personal and social relationships are fairly satisfying, intermittent disadvantages may inhibit, but not prevent participation in accustomed range of social and personal activities.

166. A rating of 2 means the primary victim’s ability to socialise has been moderately affected. For example, the effects may have a moderate effect on personal and social relationships and the primary victim may have occasional difficulty in regulating emotions reducing time spent socialising.

167. A rating of 3 means the primary victim’s ability to socialise has been significantly affected. For example, the primary victim has difficulty in regulating emotions or increased physical and verbal aggression making socialisation with peers challenging. The primary victim may have severe difficulty in relating to others as a result.

Enjoyment or participation

168. Clause 12 of Schedule 3 to the 2023 Principles requires the Secretary to determine the amount payable to a primary victim by assessing the effects of a declared overseas terrorist act on the primary victim’s enjoyment or participation in accordance with the rating of the effects on a scale of nil to 3 set out in column 1 of the table under that clause, providing the victim demonstrated enjoyment or participation appropriate to the victim’s age and circumstances before the terrorist act.

169. A rating of 0 means no effects.

170. A rating of 1 means the primary victim’s ability to participate or enjoy a particular activity or interest that the victim previously enjoyed or participated in has been slightly affected. For example, the primary victim’s has intermitted limited mobility or anxiety impacting activities such as sports or other hobbies.

171. A rating of 2 means the primary victim’s ability participate or enjoy a particular activity or interest that the victim previously enjoyed or participated in has been moderately affected. For example, primary victim is unable to engage in highly physical activities such as sports but can participate in other activities such as board games. There may be impacts such as a noticeable time limitation to how long a victim may knit or craft due to pain of a physical injury.

172. A rating of 3 means the primary victim’s ability to participate or enjoy a particular activity or interest that the victim previously enjoyed or participated in has been significantly affected. For example, the primary victim finds participation in hobbies difficult to enjoy due to pain, emotional distress or inability to engage with others, limited ability to participate in previous interests.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Social Security Act 1991 (Social Security Act) governs entitlement to and administration of a number of benefits, including the Australian Victim of Terrorism Overseas Payment (AVTOP) scheme.

The Social Security (Australian Victim of Terrorism Overseas Payment Principles) Determination (LIN 23/059) 2023 (2023 Principles) is made under section 1061PAF in Division 3 of Part 2.24AA of the Social Security Act 1991 (Social Security Act). It operates to repeal and remake the Social Security (Australian Victim of Terrorism Overseas Payment) Principle 2013 (2013 Principle).

The 2013 Principle is due to sunset on 1 October 2023 in accordance with section 50 of the Legislation Act 2003 (the Legislation Act) and, as a result, will be repealed.

Before remaking the 2013 Principle, the Department of Home Affairs on behalf of the Minister has undertaken review of the 2013 Principle and consulted with a range of groups through a public call for submissions and a direct invitation for submissions from key bodies, in accordance with the requirements under subsection 1061PAG(1) of the Social Security Act, including the following:

Services Australia and other Government agencies;
community and welfare organisations;
health professionals;
international humanitarian agencies;
victim and survivors of overseas terrorist acts and/or their families.

No concerns were raised on whether the 2013 Principle adequately achieves its purpose of assessing the eligibility of a claimant for an AVTOP.

The purpose of the 2023 Principles is to determine the principles to be applied for the purposes of determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act under subsection 1061PAF(1) in Division 3 of Part 2.24AA of the Social Security Act.

The AVTOP scheme ensures Australian residents who are harmed or whose close family member is killed as a direct result of a ‘declared overseas terrorist act’ have access to financial assistance of up to $75,000.

Section 1061PAA in Division 3 of Part 2.24AA of the Social Security Act sets out the qualification for the AVTOP payment. Subsection 1061PAA(1) provides that the AVTOP scheme applies to a victim of a ‘declared overseas terrorist act’ who is an Australian resident on the day the terrorist act occurred or who is in a specified class of persons determined by the Minister in a legislative instrument, providing the victim and the victim’s close family members were not involved in the commission of the terrorist act.

Part 2 of the 2023 Principles determines the quantum of an AVTOP payable to a primary victim. The amount of an AVTOP payable to a primary victim will depend on various factors, including the following:

the nature of any injuries suffered by the primary victim;
the impact of the terrorist act on the primary victim’s life;
if, and to what extent, the primary victim contributed to the injuries;
if, and to what extent, the primary victim received financial assistance from a foreign country for an injury arising from the terrorist act.

Part 3 of the 2023 Principles determines the quantum of an AVTOP payable to a secondary victim. The amount of an AVTOP payable to a secondary victim will depend on various factors, including the following:

if other people have qualified as a secondary victim in relation to the deceased person;
the nature of the relationship between the secondary victim and the deceased person;
if, and to what extent, the deceased person contributed to the death;
if, and to what extent, the secondary victim received financial assistance from a foreign country for the deceased person’s death.

The 2023 Principles minimise the use of subjective tests and discretion when assessing a claim, and where appropriate, ensure the decision maker has clear guidance as to how a claim should be assessed.

Financial assistance under the AVTOP scheme does not replace existing forms of assistance such as Disaster Health Care Assistance Schemes and the Australian Government Disaster Recovery Payments.

The Disallowable Legislative Instrument commences on the day after it is registered on the Federal Register of Legislation.

Human rights implications

This Disallowable Legislative Instrument promotes the following rights:

Right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC)
Right to family life in Article 10 of ICESCR
Right to an adequate standard of living in Article 11 of the (ICESCR) and Article 27 of the CRC
Right to health in Article 12 of ICESCR, Article 24 of the CRC and Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD)
Right to full inclusion and participation in all aspects of life in Article 26 of the CRPD

Terrorist acts impose a heavy burden on victims and their families. In some cases, this burden will endure for life. Primary victims of terrorism may:

lose their life
require extensive medical treatment
require ongoing domestic care and assistance
lose some or all of their capacity to work and earn income, and
experience mental health problems.

Secondary victims of terrorism may:

lose some or all of their family members, and
experience a loss of support that they received from their family member.

Right to social security

Article 9 of ICESCR and Article 26 of the CRC require States to recognise the right of everyone to social security, including social insurance. These articles require States to establish a social security system and, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

The 2023 Principles promote the rights in Article 9 of ICESCR and Article 26 of the CRC by providing victims/survivors of overseas declared terrorist acts with payments that enable them to access financial assistance following the terrorist act. The 2023 Principles and AVTOP scheme are not intended to replace other forms of government assistance. Rather, they are intended to provide assistance in recognition of the particular hardships that victims of terrorist acts can experience.

Similar to the 2013 Principle, the 2023 Principles will provide that financial assistance to Australian residents or persons who are harmed as a direct result of the terrorist act is awarded on a sliding scale, with larger payments being available to victims who experience physical or psychological harm that is severe and enduring. The maximum amount payable to a person in relation to the harm they suffer is $75,000. The 2023 Principles provides separate consideration for assessing financial assistance for minors, with an assessment for children over 16 years old and an assessment for children under 16.

A maximum amount of $75,000 is payable to the close family members of a person who is killed as a direct result of the terrorist act, where those family members resided in Australia at the time of the incident. State and territory succession laws have been adapted and modified to determine the priority of payment, as it is the policy intention to apportion an amount of AVTOP to the family members who are likely to have a close personal relationship with the deceased.

By providing a framework for the payment of financial assistance to primary and secondary victims of terrorist acts, the 2023 Principles promote the right to social security.

Right to family life

Article 10(1) of the ICESCR requires States to recognise the widest possible protection and assistance to the family as the fundamental and natural unit of society, requiring the full protection of the State. Article 10(3) also recognises that States must take special measures to protect and assist children and young persons without discrimination for reasons of parentage and other conditions.

The AVTOP scheme enables financial assistance to be provided to Australian residents who are close family members of a person who died as a direct result of an overseas terrorist act, regardless of whether the citizen was resident in Australia at the time of the incident. The AVTOP scheme gives priority of payment to a deceased person’s partner and child or children, followed by their parent or parents, and finally the person’s sibling or siblings.

The 2023 Principles provides the framework for determining the amount of financial assistance that can be provided. On this basis, this instrument promotes the right to protection of, and provides assistance to, the family.

Right to an adequate standard of living

Article 11(1) of the ICESCR and Article 27 of the CRC require States to recognise and adopt measures to realise an individual and his or her family’s right to an adequate standard of living, including adequate food, clothing, housing and to the continuous improvement of living conditions.

The AVTOP scheme provides financial assistance for Australian residents, including children, who have been injured or whose close family relatives died as a direct result of a terrorist act. While payments made under the AVTOP scheme are not intended to be financial compensation for medical treatment, the 2023 Principles acknowledge the economic impact of an injury on a primary or secondary victim’s lifestyle.

Financial assistance provided under the AVTOP scheme may be used by an individual or a family for the purposes of improving their overall living conditions, particularly where they have suffered physical or mental harm or trauma as a direct result of an overseas terrorist act.

The 2023 Principles provide the framework for determining the amount of financial assistance that can be provided. On this basis, this instrument promotes the right to an adequate standard of living.

Right to health

Article 12(1) of ICESCR, Article 24 of the CRC and Article 25 of the CRPD provide for the right to the enjoyment of the highest attainable standard of physical and mental health.

The 2023 Principles provide for a differing amount of financial assistance to be provided to victims, including children, depending on the harm resulting from the terrorist act. This includes physical injuries and emotional trauma that could require extensive and ongoing treatment. The 2023 Principles also allow for financial assistance to be paid to secondary victims of a deceased person giving priority to the deceased person’s partner and child, followed by their parent, then sibling. The financial assistance available under the AVTOP scheme supplements other government benefits for which the person may be eligible.

Schedule 1 provides that more severe or permanent injuries enable a higher payment. Schedule 1 also includes financial amounts for both physical and psychological injuries. This payment does not affect a person’s eligibility for Medicare benefits or other government benefits. Schedules 2 and 3 set out the considerations for assessing the impact of a terrorist act on a child over 16 years old and a child under 16 years old, respectively, recognising that a terrorist act may impact on children or minors in particular ways.

This instrument promotes the right to the highest attainable standard of health by providing financial assistance to victims that they can use in any manner, including for the purposes of medical and psychological treatment.

Right to full inclusion and participation in all aspects of life in Article 26 of the CRPD

Article 26(1) of the CRPD requires States to adopt effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

The 2023 Principles do not discriminate on the basis of disability, but provide for the availability of financial assistance to all Australian residents or persons harmed as a direct result of a declared overseas terrorist act or whose close family member dies as a direct result of such a terrorist act. The financial assistance provided takes account of a person who may be harmed or disabled by physical and psychological injuries.

The 2023 Principles do not prescribe the manner in which funds received by a victim should be used. The financial assistance may be used by the victim to enable that person to attain maximum independence, inclusion and participation in all aspects of life, following their injury sustained as a direct result of a terrorist act. The financial assistance does not replace other forms of assistance that a person with a disability may also have access to.

On this basis, the 2023 Principles promote the rights of persons with a disability.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights.

The Hon Clare O’Neil MP

Minister for Home Affairs

Administered by Department of Home Affairs

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