CHAPTER 2
Key issues
2.1
The committee received evidence regarding both the proposed Government
AVTOP scheme and the framework proposed by the Brandis Bill. Key issues raised during
the inquiry include:
- the scope of the two proposed schemes;
- the role of the Prime Minister in determining which events are
designated overseas terrorist acts under the Government Bill;
-
issues regarding the eligibility requirements of the two proposed
schemes; and
- the proposed maximum payment amount for victims.
Support for the establishment of a financial assistance scheme
2.2
Submitters and witnesses to the inquiry were all broadly supportive of
the introduction of a financial assistance scheme for victims of overseas
terrorism. Mr Peter Hughes, Director of the Peter Hughes Burn Foundation and
a survivor of the 2002 Bali bombings, praised the proposed schemes and noted that
they would bring assistance for victims of terrorism overseas in line with that
already available to terrorist victims in Australia under state schemes:
The key principles that this legislation embodies are at the
core of our Aussie belief in a fair go. It will correct the anomaly currently
where citizens on Australian soil are treated differently from those who happen
to be offshore when they become victims of terrorism, thus creating a fair go
for all who happen to become the victim of a terrorist crime.[1]
2.3
Speaking of his experience as a survivor of a major overseas terrorist attack,
Mr Hughes told the committee that the financial burden on survivors is
significant and that additional assistance is needed:
The victims of these sorts of crimes come from all walks of
life. They need not just understanding but also financial assistance, and they
need it promptly...Looking back at it now, nearly 10 years on, we are still in
that same position, and I really do not know how a lot of people got by, even
to this day, because we had nothing to go to. Back then, they did not seem to
be desperate times because we had a lot of help; but I can assure you that
many, many months later, once it had all died down a bit in terms of the Bali
bombings, people had to go back to work and they were doing it through their
pain. It was hard; it was desperately hard....
I have to say that the Australian government have been
fantastic on all sides of government in terms of medical and looking after us
that way, but in terms of monetary gain, in terms of a form of compensation, no-one
is doing anything about it.[2]
2.4
The Law Council of Australia (Law Council) also expressed its support
for measures designed to ensure that victims of overseas terrorism and their
families have access to appropriate support and assistance.[3]
Professor Ben Saul from the Sydney Centre for International Law commended the
intent of the Bills and noted that creating a financial assistance scheme for
victims is consistent with the United Nations' Global Counter-Terrorism
Strategy, which Australia supports.[4]
Scope of the proposed assistance schemes
2.5
Submitters raised various issues regarding the scope of the schemes
proposed in the two bills. The Law Council argued that any new scheme should
apply not just to victims of overseas terrorism, but to all Australians who are
victims of any Commonwealth crime committed overseas:
The Law Council is concerned that by limiting the scheme to
Australian victims of overseas terrorism, both Bills make an unjustified
distinction between victims of overseas terrorism and other groups or
individuals who are harmed as a result of violent criminal acts abroad. The
Council is also of the view that the narrow focus of the schemes proposed in
both Bills highlights the absence of a consistent and comprehensive scheme to
compensate victims of Commonwealth crimes committed either at home or abroad.[5]
2.6
The Law Council explained that, under both proposed schemes, victims of
overseas crimes of similar magnitude would not be eligible for Commonwealth
compensation:
For example, the following victims would be unlikely to be
covered by the scheme proposed in both Bills:
(a) a group of Australians killed
or severely injured in a mass shooting in the United States, in which the
perpetrator was motivated by family breakdown rather than political causes; or
(b) a Australian citizen killed or
injured overseas as a result of an attack by a perpetrator suffering depression
or another mental incapacity; or
(c) an Australian targeted in a
physical attack overseas due to his or her sexual orientation, gender, race or
nationality. [6]
2.7
According to the Law Council, a single, more comprehensive statutory
regime for compensating victims of Commonwealth crimes overseas should be
established or, failing that, a review should be undertaken into how
effectively and consistently existing state and territory compensation schemes
operate in relation to victims of Commonwealth crimes.[7]
2.8
Professor Ben Saul also argued in favour of creating a more
comprehensive scheme for compensating victims of federal offences:
...there is no convincing reason for compensating only
victims of overseas terrorism, but not victims of other international crimes
abroad, such as war crimes, crimes against humanity, torture or genocide. It
would be preferable to create a more comprehensive regime which enables
compensation of victims of any serious international crime such as these (such
as, for instance, the 'Balibo Five')...Many international crimes are of
comparable or more serious gravity than acts of terrorism, and it makes sense
to make compensation available across the board.[8]
2.9
In its evidence to the committee, the Law Council conceded that there
would be significant additional challenges associated with establishing and
operating a more comprehensive scheme, and that a broader consultation process
would be necessary to determine the parameters of any such scheme and the types
of crimes for which compensation could be provided.[9]
Determination of terrorist events to be covered by the AVTOP scheme
2.10
One of the main points of contention raised by submitters and witnesses
is the manner in which the Government Bill proposes to define the terrorist
acts which will be covered under the AVTOP scheme. Under the Government Bill,
the Prime Minister must determine by legislative instrument that a particular
event is a 'declared overseas terrorist act' in order for victims of that act
to claim the AVTOP. As noted in Chapter 1, the justification for this
approach provided in the EM is that it 'will ensure remote events are not drawn
into the scheme'.[10]
2.11
The Law Council noted that 'it remains unclear whether the level of
remoteness [of an event] is to be determined by geographic location, the
numbers of Australian victims involved, or the extent to which an incident is
directed at Australian or western interests'.[11]
It expressed concern that the Government Bill does not include any criteria to
which the Prime Minister must refer in making determination decisions, and
argued that this could influence the effectiveness of the scheme:
This discretion raises concerns that the Bill may be unfair and
inconsistent in its operation. For example, it is possible that payments will
only be made when acts are deemed sufficiently 'anti-Australian' or
'anti-western', based on popular assumptions of these concepts and of
'terrorist acts'...[T]he scope of the term 'terrorist act', which has very
significant legal consequences and invokes particularly strong political and
community responses, should always be prescribed by statute, and not be left to
be determined by the exercise of individual discretion, even in the context of
victims compensation schemes.[12]
2.12
The Law Council suggested that the Bill should be amended to include
specific criteria by which a declaration will be made, if necessary excluding
specific situations such as warzone incidents.[13]
It also argued that adding further precision to the definition of the term 'terrorist
act' in the Criminal Code could add clarity to which events are likely to be
covered under the proposed schemes.[14]
2.13
Professor Ben Saul also commented on this aspect of the Government Bill:
...the operation of the scheme should not depend on a Prime
Ministerial declaration, which both unduly politicises the scheme (requiring
the Prime Minister to make a determination of whether the legal definition of a
'terrorist act' in the Criminal Code is met) and may leave victims of the many
smaller, undeclared incidents uncompensated. There is no persuasive reason to
distinguish between victims on such an ad hoc political basis, and it is
preferable for the scheme to operate in an objective, universal manner.[15]
2.14
The Attorney-General's Department (Department) explained in its
submission that the scheme is intended to help individuals who are targeted in
terrorist attacks because they are Australians or westerners.[16]
With regards to the Prime Minister's discretion in activating the scheme for a
particular event, the Attorney-General's Department informed the committee that
'opening the criteria up to all terrorist incidents would extend the scheme to
events that have no connection to Australia and would be inconsistent with the
policy rationale'.[17]
Further:
The policy idea behind this is very much tied up with the
fact that the state, the government, recognises that with terrorism the crime
is very much directed towards our way of life, our country and so on. You could
have a situation where a person had gone backpacking in some extremely remote
area known to be extremely dangerous and that person was basically caught up in
something that was nothing but a local act of terrorism. The idea of this
scheme is to really ensure that it does not become something a little bit like
the Criminal Injuries Compensation Scheme, where quite random stuff is caught
up.[18]
2.15
The Attorney-General's Department added that the current drafting of the
Government Bill is designed to ensure that the Prime Minister 'is not limited
in making a declaration in circumstances where he or she determines the
proposed scheme should apply, including factors that were not contemplated when
the legislation was drafted'.[19]
2.16
A representative from the Law Council acknowledged that there will
always be some ambiguity and threshold decisions when determining which events
qualify for an assistance scheme relating to terrorist acts.[20]
The Department emphasised that Ministerial discretion is already used to determine
which events qualify for disaster relief payments under the Australian
Government Disaster Recovery Payment (AGDRP) scheme, and that it is not unusual
to retain some Ministerial control over payment schemes such as these:
If you do not and you try to put in a vague definition—the
sort of thing that perhaps the Law Council had in mind—then the potential for
mitigation, the argument about whether it is a terrorist act or not, could get
in the way of actually getting on with dealing with what needs to be dealt
with.[21]
2.17
It is worth noting that section 36 of the Social Security Act, which
authorises the Minister to determine that an event is a major disaster for the
purposes of activating the AGDRP scheme, does contains some guidelines
regarding the matters the Minister must have regard to when considering whether
to make a declaration. These include that the Minister must consider the number
of individuals affected by the event and the extent to which the nature or
extent of the disaster is unusual.
2.18
The Department also highlighted that, in situations where an Australian has
been injured overseas in an event that is not declared by the Prime Minister
as a declared overseas terrorist event, that person may be able to claim
payment under other assistance schemes in those jurisdictions:
...an Australian in many overseas countries would also be
able to make a claim. For example, the US has the United States Crime Victims
Fund under the Victims of Crime Act. That is a whole-of-government or
whole-of-America scheme, whereby people can make claims for being a victim of a
crime within the various jurisdictions within America.[22]
Eligibility for payments for primary and secondary victims
2.19
The committee received evidence regarding the eligibility guidelines for
primary and secondary victims to receive AVTOP payments under the proposed
Government scheme.
Eligibility for secondary victims
of terrorist attacks
2.20
Victoria Police argued that the current definition of 'secondary victim'
in the Government Bill may be too restrictive:
At present the legislation appears to only allow for
compensation to secondary victims if the primary victim dies. Victoria Police
suggests that consideration be given to extending the legislation to allow for financial
assistance for close family members in cases where the primary victim has not
died as a result of the terrorist act.
In some cases for example, close family members may require
financial assistance to travel overseas to support victims of terrorist acts.
Close family members may also require counselling or treatment as a result of
the primary victim's injuries sustained in the terrorist act.[23]
2.21
A representative from the Department explained, however, that the scheme
could become too broad and difficult to administer if family members of injured
victims are included in the definition of 'secondary victim':
...This would create quite a huge problem. As you can
imagine, the injuries that could be involved and the effect of that on the
individuals would range hugely. So that certainly has not been included in this
scheme. Have a look at some of these state schemes. In particular, I think the
Law Council like to use the New South Wales criminal injuries scheme as an
example. The report for 2010-11 showed that the number of applications they
received in the year was 8,500 and the number of determinations was 4,973. You
get huge delays—25 months in some cases. They have more claims than they can
deal with, so they have a backlog of 21,600. They have outstanding claims worth
$239.2 million. So what I am getting at here is that you can make the scheme
very broad and vague and it can cost an exorbitant amount and can also cost
some very directly affected people in the sense that you end up having a more
complex process.[24]
Ineligibility for family members of
those involved in terrorist acts
2.22
The Law Council expressed concern with the provisions in the
Government Bill which provide that a victim is only eligible for the AVTOP
if that person's close family members were not involved in the commission of
the terrorist act (proposed new subsection 1061PAA(1)). It argued that only
those individuals who are criminally responsible for the terrorist act should
be automatically ineligible for a payment:
This wording seems to leave open the possibility that a
harmed individual (or primary victim) who was uninvolved in the terrorist act
may be ineligible for a payment because his or her relative was involved. This
possibility could render an injured child harmed in a terrorist act ineligible
for compensation due to the involvement of his or her parent, or an elderly
parent ineligible for compensation for the death of a child, due to the
involvement of another child...The Law Council is of the view that the
entitlement of every individual should be determined according to his or her
own actions, and not his or her relationships.[25]
2.23
Representatives from the Department responded that it is the clear
policy intent of the government that close family members of individuals
involved in perpetuating terrorist attacks should not be eligible for
assistance:
Under the government bill, if you are a close family member
of a person who was involved, you are not eligible. So, for example, the parent
of a suicide bomber would not be eligible. The close family member does not
have to have been involved themselves in order to be ineligible.[26]
2.24
Further:
The suicide bomber example is quite a good one, which seems
to have been lost in some of the earlier discussions. In fact some terrorist
organisations actually provide compensation to the family. Some of what was
being discussed before did not seem to even imagine that possibility from the
Law Council and, from a policy point of view, the absolutely unacceptable.[27]
Residency requirements for
eligibility
2.25
Another issue raised was whether Australian citizens ordinarily living
overseas would be eligible for payment under the AVTOP scheme in the event they
are injured in a declared overseas terrorist act. The Attorney-General's
Department clarified that under the Government Bill an individual must be an
Australian resident on the day the terrorist act occurred to be eligible for
payment, and that the definition of 'Australian resident' is the same as in subsection
7(2) of the Social Security Act.[28]
The definition in subsection 7(2) of the Act clearly states that a person must
reside in Australia to be an 'Australian resident', thus ruling out persons not
residing in Australia. This means that individuals such as Australians consular
officials working at Australian embassies overseas, Australian Federal Police
officers working overseas and Australian Defence Force personnel may not
automatically be eligible for payment under the scheme.[29]
However, the Government Bill still allows the Minister to determine that a
class of persons who do not satisfy the residency test can be eligible (under
proposed new subsection 1061PAA(6)).
Amount of individual payments
2.26
The committee received evidence regarding the quantum of payment to be
made to primary and secondary victims under the proposed schemes. Both Bills
propose a maximum payment of $75,000, and the adequacy of this figure was
contended in evidence presented to the committee. Peter Hughes, Director of the
Peter Hughes Burn Foundation, estimated that the financial loss suffered by his
fellow victims of the 2002 Bali bombings would average well over $100,000 for
each victim, and that his own losses were significantly higher than this.[30]
Mr Hughes considered that a sum of $150,000-$250,000 would be a more reasonable
payment amount for victims recovering from injuries sustained in a terrorist
attack, and that the proposed maximum amount of $75,000 is quite low.[31]
Financial assistance versus a
compensation scheme
2.27
The Department informed the committee that the payment cap of $75,000 is
based on the most generous maximum payment amount across the state-based
victims of crime schemes The Department also clarified that the AVTOP scheme is
designed to provide immediate financial assistance to victims of overseas terrorism,
rather than providing compensation over the longer term:
...it is actually not a compensation scheme so much as an
assistance scheme. Although the state and territory schemes on which it is
based are incorrectly described as compensation schemes, they really are well
below what you would call compensation for a lot of people...So the idea of
this scheme is not compensation. The idea of this scheme is to provide some
special assistance which will help people go on with their lives. You can never
compensate, really, for the loss of a life, and it is a very difficult area
with serious injuries too.[32]
2.28
The Department explained that the proposed assistance scheme would be
much simpler and quicker to administrate than a true compensation scheme, and
would give victims access to financial assistance as soon as possible in the
aftermath of a terrorist event:
The big factor in all this, of course, is that it is a much
simpler process by which to access the funds. A true compensation scheme
involves many hours of litigation—hours and probably days, months or years of
litigation—to prove the exact compensation. The scheme that we have in mind
here is one that will be simple in administration and deliver the assistance
fairly quickly and will also be one that is not used up by administration and
endless legal fees which can be brought about by having imprecise definitions.
What we are seeking to do here is to have something that is quite precise and
can be delivered to the victims. The idea is to help the victims.[33]
2.29
Mr Hughes also supported the goal of establishing a scheme which can be
activated and through which payments can be made with speed and efficiency:
...I see it as critical that the way in which these are
assessed and the funds are issued be simple and non-bureaucratic. Along with
empathy, there must be efficient and effective assessment and advice of a
decision. I see no value in offering people money many months or years after
they have become a victim.[34]
2.30
The Department also commented that the AVTOP Principles, to be developed
in consultation with stakeholder groups after the Government Bill is passed,
would include details specifying the normal amount to be paid for specific
injuries sustained by a terrorist victim, in order to streamline the approval
of payments:
Both bills talk about consultation on the principles and
details of the scheme. But we would envisage drawing on some of the techniques
that are used in other areas, such as the existing [state] schemes. We have
also been looking at veterans affairs and the like. So the principles would
outline very clearly what would be paid for different types of situation, and
this would be detailed. For example, if a person lost some limbs or had a very
severe physical injury of that nature, you would expect the person to get
compensation at the top end of it. If the person had a broken arm or a less
serious injury that had less of a long-term impact then it would be lower, of
course. That is where the work we have done with these folk has been very good,
in that we have been able to work out a scheme that could be quite precise on
that. Everything is arbitrary...but the more precise it is the quicker we can
get it out. But not everyone would get the full amount.[35]
Interaction between the AVTOP and
other payments
2.31
There is some ambiguity as to how other payments provided to victims of
terrorist attacks overseas will interact with the AVTOP. For example, Comcare
noted in its submission that, under the current drafting of the Government
Bill, instances could arise where individuals injured in terrorist acts
overseas are eligible both for the AVTOP and for workers compensation payments
under the Comcare scheme.[36]
2.32
The EM to the Government Bill states that financial assistance provided
through the AVTOP scheme will 'supplement those existing measures' which have
been used to support victims of overseas terrorism in the past.[37]
In addition, proposed government amendments to the Government Bill make it
clear that the AVTOP is 'not to be treated as a payment of compensation or damages'
for the purposes of any other Commonwealth law,[38]
meaning that the AVTOP would be made in addition to any other payments such as
those under the Comcare scheme.
2.33
However, proposed subparagraph 1061PAF(2)(c)(ii) of the Government Bill
states that, under the proposed AVTOP Principles, the Secretary may take into
account any other payments made to a victim, by the Commonwealth or anyone
else, when determining the amount of the AVTOP to be paid to that victim. The Department
explained that this provision 'is a fiscally responsible way of ensuring tax
payers money is not used to cover costs that have already been met in relation
to the same incident'.[39]
Arguably, this leaves open the possibility that an AVTOP recipient could
receive a lower payout if they have previously received a payment from some
other source in relation to a particular terrorist act.
Retrospectivity of payments
2.34
It is unclear whether past victims of terrorist acts (such as victims of
the Bali bombings) would be eligible to receive compensation payments
retrospectively under the proposed schemes. Several senators commented on this
issue during the second reading debate on the Brandis Bill.[40]
2.35
The Government Bill does not specifically rule out payments being made
for events that occurred before the commencement date of the legislation, as
there is no restriction preventing the Prime Minister from declaring a past
event to be a 'declared overseas terrorist act' under proposed new section 35B
of the Social Security Act. The Brandis Bill does not specify whether or not
retrospective payments could be made under its proposed framework.
2.36
When questioned on whether the victims of the 2002 Bali bombings would
receive payment under the Government Bill, representatives from the Department
responded that 'the government has indicated that it does not want to make this
bill go back retrospectively to that extent'.[41]
The Department noted that the reasons for this decision include the amount of
funds already distributed to victims of past events, as well as the
administrative difficulties associated with dealing with payments for events
that occurred over a decade ago.[42]
Specific concerns with the Brandis Bill
2.37
Submitters commented that the Brandis Bill does not provide enough
detail about the operation of the proposed Assisting Victims of Overseas
Terrorist Acts Framework. In its submission, the Department noted that there is
a lack of detail regarding numerous elements of the proposed framework,
including:
- the type of events to which the framework would apply;
-
the eligibility requirements for victims and their family
members;
- whether individuals could receive multiple payments under the
framework;
- the timeframe for making and considering claims made for payment;
and
- how payments made under the framework would interact with other
benefits and payments.[43]
2.38
The Department expressed the view that more detail should be provided in
primary legislation regarding these elements of the framework, rather than
being left to guidelines developed by the Minister.[44]
2.39
The Law Council raised similar issues concerning the Brandis Bill. While
the Law Council 'has no objection in principle to legislation which
establishes a framework for compensation for victims of overseas terrorism to
be administered by the Attorney-General's Department', it expressed concern
that the Brandis Bill 'fails to establish clear parameters for the types of
acts that will give rise to compensation or the types of victims that will be
eligible to apply'.[45]
2.40
The Law Council agreed that greater parliamentary scrutiny of the
details of such a framework is desirable, and argued that this should be accomplished
by amendments to primary legislation rather than through regulations:
...we would probably prefer that there be amendments moved to
the Brandis bill itself rather than that bill being passed and there being a
consultation process in relation to regulations. It has certainly been our
experience that the consideration of regulations is generally not as rigorous
as the consideration of primary legislation...[W]e would suggest that the
scrutiny process that applies to legislation is more appropriate.[46]
2.41
On the issue of leaving certain matters to be determined by regulations,
the Department of Human Services commented that investigating claims about
fraudulent payments, while possible under the Government Bill, may be difficult
under the Brandis Bill. This is because the coercive powers necessary to compel
individuals to provide information or appear at hearings could not be provided
for in regulations:
One of the strengths of the government bill is that it relies
on the Social Security Act and the framework bill within it, particularly with
regard to our powers under the Social Security Act, which we exercise, and
particularly coercive powers to obtain information when we think there has been
possible fraud...The Social Security Act has a lot of extensive provisions in
that regard. They will be picked up in the government bill because we rely on
the social security legislation as our primary source of power. In the Brandis
bill the framework for the scheme, as my colleagues from the Attorney-General's
Department have pointed out, can still be created in the regulations. But
regulations have limitations on what you can put in them and coercive powers is
one area where frequently you need primary legislation rather than delegated
legislation to enable you to do that...It is one area where regulations do not
have the same strength as primary legislation.[47]
Overall support systems for victims of overseas terrorism
2.42
The financial assistance measures proposed in the two Bills represent
only one aspect of the support and assistance required by victims of overseas
terrorist acts upon their return to Australia. As noted in Chapter 1, the
Australian Government has provided consular and repatriation assistance,
medical and healthcare assistance, rehabilitation services, and one-off
payments in various forms.[48]
2.43
The broader issue of providing victims of overseas terrorism with
holistic support was raised by some submitters and witnesses during the inquiry.
For example, Professor Ben Saul noted:
...some countries, such as the United States, have gone
further than Australia proposes to go in supporting victims of terrorism by
creating structures within government to deal with victims in a more holistic
manner. In 2005 the US Department of Justice established an Office of Justice
for Victims of Overseas Terrorism with various supportive functions.[49]
2.44
Mr Peter Hughes agreed that a similar central contact point for services
for terrorism victims would be useful in Australia:
There should be a place that we should be able to go to or
someone should be able to go to who is caught up in an act of terrorism—whether
it could be crime or anything. They could go to it as a point of call and say,
'What's the story?' I know that would be a positive thing to happen, for sure.[50]
2.45
The committee notes that a similar centralised contact point for victims
of natural and other disasters is available through the Australian Government's
Disaster Assist website,[51]
which is administered by the Attorney-General's Department. The website
includes information about current and past disasters and terrorist events, as
well as providing a contact point and an emergency assistance hotline.
Committee view
2.46
The committee commends the intent of both the Government and Brandis
Bills in seeking to establish a financial assistance scheme for Australians who
are victims of terrorist events overseas, and their families. The terrorist
attacks which have killed and injured Australians overseas are crimes of the
most heinous nature, and Australians have been targeted not on an individual
basis but simply because they are Australians or Westerners. The committee is
of the strong view that the Australian Government should protect its citizens
and provide whatever assistance it can when those citizens are unfairly targeted
and harmed by extremists whose sole intent is to cause chaos and destruction.
In this regard, the committee notes that there is strong cross-party support
for the introduction of a scheme to provide financial assistance for victims of
overseas terrorist acts.
Brandis Bill
2.47
Turning to the content of the bills under consideration, the committee
makes several observations concerning the Brandis Bill. While the committee agrees
with the intent of the Brandis Bill, it is concerned that the bill leaves many
important details regarding the operation and administration of the proposed
framework to regulations, rather than outlining them in primary legislation.
The committee believes that, if the Brandis Bill were to be passed in its
current form, the parliament would be denied adequate input into the details of
the proposed framework and would not have the opportunity to scrutinise the key
details of this important reform prior to its implementation. The committee
also acknowledges the evidence of the Department of Human Services, that some
important elements regarding the oversight and compliance regime for any
proposed framework cannot be implemented through regulations. Consequently, the
committee is of the view that the Brandis Bill should not be passed in its current
form.
Recommendation 1
2.48
The committee recommends that the Senate should not pass the Assisting
Victims of Overseas Terrorism Bill 2012.
Government Bill
2.49
In relation to the Government Bill, the committee commends the intent of
the bill and notes the collaborative work undertaken by the Attorney-General's
Department and the Department of Human Services in developing a framework which
would operate within the scope of the existing Social Security legislation.
Scope of the proposed AVTOP scheme
2.50
Regarding the scope of the proposed AVTOP scheme, the committee acknowledges
the concerns of the Law Council that the scheme does not extend to assistance
to Australian victims of crimes overseas which are not terrorism-related. While
the committee considers that a more comprehensive assistance scheme for victims
of crime overseas may be worthy of future consideration, it notes that such a
scheme would be costly, and would take a significant period of time to
establish. It is imperative that any scheme introduced should be able to assist
victims of terrorism as quickly as possible in the aftermath of a terrorist
event, and extending the scheme to include other crimes will increase the
administrative burden and the time required to make payments to victims.
2.51
In relation to the proposal to extend payment to secondary victims whose
close relative has been injured rather than killed, the committee notes the
evidence of the Attorney-General's Department that extending the scheme in this
way would also make it more costly and time-consuming to administer. While the
committee acknowledges the significant trauma that the families of victims
injured in terrorist attacks undergo, it believes that limiting the definition
of secondary victim to those who have had a relative killed in a terrorist
attack is appropriate at this time.
2.52
The committee does not agree with the Law Council that family members of
those involved in terrorist actions should be able to seek assistance under the
proposed AVTOP scheme, as it finds it difficult to envisage a situation in
which the circumstances of such an individual would justify them receiving
financial assistance from the Australian Government.
Determination of events to be
covered under the AVTOP scheme
2.53
The committee notes the concerns expressed by submitters and witnesses
that there is little guidance in the Government Bill and explanatory material
regarding what types of events will be designated as 'declared overseas
terrorist acts' by the Prime Minister under the AVTOP scheme. While the committee
broadly agrees with the policy intent that the scheme should assist victims of
terrorist attacks where there is some link to Australia or its interests, the
committee is concerned at the lack of specific additional detail or guidance on
this issue, and believes that there should be a greater level of guidance
concerning what types of terrorist events will be covered by the scheme.
2.54
As such, the committee believes that it would be useful for more
specific information on this issue to be included in the EM to the Government
Bill. The EM should outline in more detail examples of the types of events
which are likely to be covered under the AVTOP scheme, as well as the factors
which will be considered by the Prime Minister in making declarations under the
scheme.
Recommendation 2
2.55 The committee recommends that the Attorney-General's Department
issue a revised Explanatory Memorandum to the Social Security Amendment
(Supporting Australian Victims of Terrorism Overseas) Bill 2011, which outlines
in more detail examples of the types of events which are likely to be 'declared
overseas terrorist acts' under the Australian Victims of Terrorism Overseas
Payment scheme, and criteria by which the Prime Minister may make
determinations for payments under the scheme.
Eligibility for Commonwealth
employees working overseas
2.56
The committee is concerned that Australian officials working overseas,
such as consular officials and diplomatic staff at Australian embassies, may
not be automatically eligible to receive payment under the AVTOP scheme if they
do not qualify as Australian residents for the purposes of section 7 of the
Social Security Act. The committee notes that the Minister has the discretion
to determine that a class of persons who do not satisfy the residency test can
be eligible for the AVTOP scheme. However the committee believes additional
clarity is required to ensure that Australian officials working overseas will
not be left without financial assistance in the immediate aftermath of a
terrorist event in which they are injured or killed.
Recommendation 3
2.57
The committee recommends that the Attorney-General's Department issue a
revised Explanatory Memorandum to the Social Security Amendment (Supporting
Australian Victims of Terrorism Overseas) Bill 2011, clarifying whether
Australian Government employees working overseas will be eligible for payment
under the Australian Victims of Terrorism Overseas Payment scheme in the event
they are injured in a declared overseas terrorist act.
Amount of individual payments under
the AVTOP scheme
2.58
The committee notes the evidence presented to it regarding the severe
financial impact and loss of quality of life experienced by victims who are
injured in terrorist attacks. The committee heard from Bali bombing survivor
Peter Hughes that the costs and loss of income for injured victims can easily
run into hundreds of thousands of dollars. The committee also notes the
evidence from the Attorney-General's Department that the scheme is designed to
operate as an immediate financial assistance scheme for victims, rather than a
true compensation scheme offering comprehensive and ongoing financial support.
The committee agrees that it is never possible to truly compensate victims
injured or killed in terrorist acts and their families. The committee also
recognises that the payment cap of $75,000 is based on the most generous of the
state-based victims of crime compensation schemes.
2.59
The committee is of the view that the maximum payment cap of $75,000 for
primary victims should be increased, in light of the extreme trauma and
financial loss experienced by many victims of overseas terrorism. The committee
notes evidence from Mr Hughes that payments 'somewhere between $150,000 and
$250,000' would be reasonable for primary victims.[52]
The committee also notes that the UK Government recently announced a
financial compensation scheme for victims of specified overseas terrorist acts with
a maximum possible payment of over £300,000.
2.60
On balance, the committee considers that a maximum cap of $150,000 for
primary victims under the AVTOP scheme would be more appropriate than the
currently proposed amount of $75,000. In suggesting this amount, the committee emphasises
that raising the maximum payment allowed for primary victims would not prevent
victims from being awarded less than this, but would allow for more generous
payments in the most severe cases.
2.61
In the committee's view, the current payment cap of $75,000 for
secondary victims is adequate, however the committee is open to this being
reviewed in the future in light of the operation of the new scheme. The maximum
payment amounts for both primary and secondary victims should be discussed with
relevant stakeholder groups as part of the annual consultations on the AVTOP
Principles, after the Government Bill takes effect.
Recommendation 4
2.62
The committee recommends that proposed new subsection 1061PAD(3) of the Social
Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill
2011 be amended to provide that the amount paid to a primary victim of a declared
overseas terrorist act under the Australian Victims of Terrorism Overseas Payment
scheme must not exceed $150,000.
Interaction between the AVTOP and
other payments
2.63
The committee believes there is still a lack of clarity regarding how
the AVTO Payments will interact with other payments made to victims of overseas
terrorism. The committee is concerned that, under the current drafting of the
legislation and explanatory material, victims could receive nothing from the
AVTOP scheme if they have received any payments from other sources. The
committee believes that the legislation should specify the way in which other
payments could lead to a reduction in the amount of AVTOP made to an
individual. Accordingly, the committee seeks further clarification on this
issue, and specifically:
-
whether the AVTOP is intended to supplement or replace other
forms of financial assistance which may be available to victims; and
- how other payments which have been made to victims will affect
the quantum of payment received under the AVTOP scheme.
2.64
Additional detail on these issues could be provided easily in an updated
Explanatory Memorandum to the Government Bill.
Recommendation 5
2.65
The committee recommends that the Attorney-General's Department issue a
revised Explanatory Memorandum to the Social Security Amendment (Supporting
Australian Victims of Terrorism Overseas) Bill 2011, outlining in greater
detail how forms of financial assistance made to victims of overseas terrorism
outside the Australian Victims of Terrorism Overseas Payment scheme may affect
the amount they receive under the Australian Victims of Overseas Terrorism
Payment scheme.
Additional support for victims of
overseas terrorism
2.66
As a final point, the committee notes the evidence presented to it
regarding the need for comprehensive and holistic support for Australian
victims of overseas terrorist attacks. The committee believes that the AVTOP
scheme will provide an important part of the support framework for victims, and
is keen to ensure that other support services are easy to access for victims.
The committee is of the view that a central contact point should be established
within the Australian Government for individuals affected by overseas terrorist
attacks. Such a central contact point would help direct victims to relevant
information and services, including information relating to the AVTOP scheme
and other non-financial services offered by government and community
organisations, and should play a coordinating role across government.
2.67
The committee notes that information regarding terrorist attacks is
currently provided through the Australian Government's Disaster Assist website.
The committee believes that the central contact point envisaged by the
committee could be achieved through the expansion of this website service to
include a designated contact line for Australians requiring information about
support services for those affected by terrorist acts, within the Department of
Human Services or the Attorney-General's Department.
Recommendation 6
2.68
The committee recommends that the Australian Government should establish
a central contact point for Australians affected by terrorist acts, to provide
information and coordination of the various support services offered to victims
and their families.
Recommendation 7
2.69
Subject to Recommendations 2-5, the committee recommends that the Senate
pass the Social Security Amendment (Supporting Australian Victims of Terrorism
Overseas) Bill 2011.
Senator Trish
Crossin
Chair
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