Associate:
Dated: 11 March 2016
REASONS FOR JUDGMENT
BROMBERG J:
108 Section 1061PAA(1) of the Social Security Act 1991 (Cth) (the Act) sets out the eligibility or qualification criteria for an "Australian Victim of Terrorism Overseas Payment" (AVTOP). Relevantly to the issues raised by this appeal, to be qualified a person must be a "primary victim … of a declared overseas terrorist act …". Section 1061PAA(2) defines "primary victim". There are two conjunctive limbs to the definition. The first is that the person was in the place where the terrorist act occurred (first limb).
109 The Administrative Appeals Tribunal (AAT) concluded that Mr Hananeia was not a "primary victim" and therefore did not qualify for an AVTOP. The AAT did that including because it concluded, by reference to the first limb, that Mr Hananeia was not in the place where the terrorist attack occurred. I respectfully agree with Gilmour J, for the reasons given by his Honour, that the AAT misconstrued the Act and erred in concluding that Mr Hananeia did not satisfy the first limb of the definition of "primary victim". I also agree that this Court should find that, for the purposes of s 1061PAA(2)(a), Mr Hananeia "was in the place where the terrorist act occurred" when he was at the Adi Dharma Hotel.
110 The remaining issue is whether the AAT erred in failing to conclude that Mr Hananeia satisfied the second limb of the definition of "primary victim", namely, that he was harmed "as a direct result" of the terrorist act. That issue was raised by ground 4 of Mr Hananeia's grounds of appeal.
111 Dealing with the second limb of the definition of "primary victim", at [44] of its reasons, the AAT said:
That conclusion makes it unnecessary for the Tribunal to consider whether para (b) of s 1061PAA(2) of the SS Act is satisfied in the applicant's case. Suffice it to say that the Tribunal accepts the respondent's submission to the effect that para (b) of s 1061PAA(2) is also not satisfied because the applicant was not "in the place where" the relevant terrorist act occurred at the time when it occurred and the harm to his mental health which he subsequently suffered was suffered by him as a result of his voluntarily and unnecessarily attending the site of that terrorist act after it had occurred, not "as a direct result of" that terrorist act itself.
112 When [44] is read with the conclusions expressed by the AAT at [45]-[48], a legitimate question arises as to whether the AAT made a finding as to the second limb. But presuming (against Mr Hananeia's contention) that it did, it is clear, as Gilmour J has stated, that the AAT has imported into its conclusion the same legal error that the AAT made in relation to its consideration of the first limb. Any finding made as to the second limb therefore cannot stand.
113 There is therefore a question raised as to whether the matter should be remitted to the AAT to redetermine or whether, pursuant to s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), it is convenient that this Court make a finding as to whether or not Mr Hananeia was harmed as a direct result of the terrorist act.
114 Section 44(7) of the AAT Act provides:
(7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:
(a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and
(b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:
(i) the extent (if any) to which it is necessary for facts to be found; and
(ii) the means by which those facts might be established; and
(iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and
(iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and
(vii) such other matters (if any) as the Court considers relevant.
115 Whether it is convenient for this Court to determine the question raised by the second limb, to my mind, depends upon the nature of the enquiry that the question calls for. That in turn is dependent upon what is meant by the requirement of the second limb of the definition, that the person "was harmed … as a direct result of the terrorist act".
116 In the context of its use in a provision like the second limb, the expression "as a direct result of" usually describes the nature of the requisite nexus or connection between the harm suffered by a person and a wrongful act. The words "as a … result of" make it clear that a causal relationship must be established: Martin v Comcare [2015] FCAFC 169 at [107] (Murphy J, with whom Siopis J agreed). The provision in question requires that the harm be "a" direct result of and not "the" direct result of the terrorist act. The plain and ordinary meaning of the words "as a result of" imply the need for a relation of cause and effect but not a relation of sole cause and effect: WBM v Chief Commissioner of Police [2012] VSCA 159 at [183] (Bell AJA) and at [33] (Warren CJ with whom Hansen JA agreed). The word "direct" is likely to be concerned with "the quality of the connection between [the] cause and the injury": Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 at [93] (Gummow J), in which the word "directly" qualified the phrase "caused by … [a] motor vehicle".
117 The word "direct" in relation to causation probably first gained prominence in the phrase "direct consequences" used by the English Court of Appeal In re Polemis and Furness, Withy & Co, Ltd [1921] 3 KB 560 in the context of the law of negligence. That approach to the measure of damages in negligence has since been discarded (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388) but not before extensive judicial consideration of the word "direct". Despite the conclusion reached by Hart HLA and Honoré T, Causation in the Law (2nd ed., Clarendon Press, 1985) at 179 that the word "direct" provides no real assistance in solving causal problems, as Ashley, Redlich and Priest JJA said in Best v the Queen [2015] VSCA 151 at [74], although "direct" has sometimes attracted criticism in the context of causation at common law, its inclusion (in a statutory phrase) obliges the court to give the term "due meaning".
118 Each of the parties sought to give due meaning to "direct result" by reference to judgments in which the meaning of that expression has been previously considered. Mr Hananeia contended that the requirement that the harm be a "direct result" of the terrorist act requires a common sense approach. His submission was that the terrorist act need not be the only cause, although it needed to be "prominent in the events that caused the harm". Mr Hananeia relied in particular on Kaplan v Lee-Archer (2007) 15 VR 405.
119 Section 85B of the Sentencing Act 1991 (Vic) (Sentencing Act) permitted a person who "has suffered any injury as a direct result of the offence" to seek compensation for "pain and suffering experienced by the victim as a direct result of the offence". In Kaplan, an employee claimed that he suffered psychological injuries as a result of being instructed by his manager to steal from a retail nursery at which they both worked. The Court was called upon to consider whether the alleged injuries were a "direct result" of the thefts. The Court rejected the contention that the injuries were not a direct result of the offences committed by the manager. Buchanan JA (with whom Vincent JA agreed) held that the requirement that the result be "direct" does not mean "that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause" (at [24]). His Honour rejected that "direct" is a synonym for "immediate" or "proximate" or "obvious" (at [25]) and continued:
In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.
120 Buchanan JA concluded at [28] that the word "direct" was "inserted to emphasise that the crime is to play a significant role in bringing about the compensable injury".
121 Nettle JA agreed with Buchanan JA but made additional observations. His Honour referred to Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 where Mason and Wilson JJ interpreted the expression "by or as a result of a criminal act" in s 3(1) of the Criminal Injuries Compensation Act 1972 (Vic). Nettle JA considered that in Fagan, Mason and Wilson JJ "treated the question of whether injury arose by or as a result of an offence as one of whether the injury was caused by the offence, and their Honours characterised as direct results of the offence events which, although not immediate or proximate to the offence, were judged as a commonsense question of fact to have been caused by the offence" (at [53]). Nettle JA considered that the reasoning in Fagan informed the expression "as a direct result" in s 85B of the Sentencing Act and concluded at [56] that the expression "as a direct result of the offence" contemplates "an injury that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence".
122 A number of single judges of the Victorian Supreme Court have applied Kaplan in construing s 85B of the Sentencing Act. In RK v Mirik (2009) 21 VR 623 at [151], Bell J relied on Kaplan to observe that "consistently with the beneficial purpose of the provisions, no narrow conception of what is a direct result is adopted". In Liang v Chalmers [2010] VSC 241, Osborn J at [13] applied Kaplan to conclude that "[t]he word 'direct' emphasises that the crime is to play a significant role in bringing about the compensable injury. The question of causation must be judged as a matter of fact according to common sense and experience". Those same observations were made by Lasry J in Tanner v Smart [2010] VSC 463 at [26]. See further Adams v Xypolitos [2015] VSC 747 at [12] (T Forrest J).
123 Kaplan has also been followed in relation to the construction of provisions of the Sentencing Act dealing with sentencing rather than reparation. Section 3 of that Act defines "victim" as a person who has suffered injury, loss or damage as a "direct result of the offence". Section 5(2)(db) requires that in sentencing an offender the Court must have regard to any injury, loss or damage resulting "directly" from the offence. In Best, Ashley, Redlich and Priest JJA considered the words "direct result" and "resulting directly" in ss 3 and 5(2)(db) respectively. At [75] their Honours said:
[75] The current state of authority discussed below is such that the word "direct" or "directly" in the Sentencing Act cannot be construed to mean coming in time immediately after the wrongful act. While the word "direct" undoubtedly qualifies the word "result", it does not imply that there can be no step between the cause and the consequence.
124 After referring to Fagan and Kaplan, at [78]-[79], their Honours concluded:
[78] The terms "resulting directly" or "direct result" postulate something more than a mere causal relationship between the offence on which the offender has been charged and convicted and the injury. What is required is more than a sine qua non. The full range of possible causes of injury to the victim are cut down to those which can be characterised as being a direct result of the offence and not something wider. The words "result" or "resulting" emphasises effect - the sequential as distinct from the causal nature of the required link.
[79] Prosser offers a second meaning of "direct" to that discussed in [74] above as that which follows "in sequence from the effect of the defendant's act upon conditions existing and forces already in operation at the time, without the intervention of any external forces which come into active operation later". The injuries will not be a direct result of the defendant's acts if where another person's acts intervene, those latter acts may be regarded as the immediate cause of the injuries.
See further SD v the Queen (2013) 39 VR 487 at [16] (Ashley, Redlich and Priest JJA) and Berichon v the Queen (2013) 40 VR 490 where, in the absence of any consideration of Kaplan, Robson AJA construed the use of "direct" in ss 3 and 5 of the Sentencing Act to mean "sufficiently proximate" (at [127]).
125 Kaplan was also considered by the Queensland Court of Appeal in R v Foster [2009] 1 Qd R 53. Section 21B of the Crimes Act 1914 (Cth) relevantly provided for a court to order that an offender make reparation to any person in respect of any loss suffered by the person "as a direct result of" the offence. McMurdo P (with whom Mackenzie AJA and Chesterman J agreed) concluded at [74] that the words of s 21B "suggest a legislative intention that where, as a matter of fact, there is a close or significant connection between the loss suffered and the offence which caused it, a reparation order may be made …". That construction was said to be consistent with the interpretation in Kaplan of the analogous phrase.
126 I should also mention Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466, which was decided prior to Kaplan but which also dealt with the expression "a direct result" found in a provision dealing with compensation for victims of crime. The statutory criterion required that the compensable injury was "received by the victim as a direct result of the act of violence". As to that criterion Mason P (with whom Priestley and Giles JJA agreed) said at [27]:
Whether or not a primary victim has received a compensable injury "as a direct result" of a particular act of violence may involve a difficult issue of causation. The issue may be one upon which different tribunals of fact legitimately reach opposite conclusions. It is not necessarily a simple matter of common sense, notwithstanding frequently encountered judicial injunctions for robust fact-finding on such a basis. Policy issues and value judgments may be involved: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232 at 238. The particular statutory language must be kept in mind (here the requirement is proof of "a direct result"). A determination that the necessary causal link is present or absent will usually involve a question of fact, although the reasoning process may reveal an error of law in that the tribunal of fact misdirected itself as to the correct approach to the issue.
127 Finally, my survey of the cases needs to take into account Container Handlers and the following observation of McHugh J at [21], upon which the Secretary relied:
In my view, for the reasons set out above and more particularly because of the relationship of s 3(7) to s 6(1)(b) and the Schedule, the first of these two views is the correct one. The expression "directly caused by … [a] vehicle" looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury.
128 Relying on that observation, the Secretary contended that "direct result" requires an immediate connection. It may well be that McHugh J used "immediate" synonymously with "direct". "Immediate" suggests that there can be no step between the cause and the consequence, a proposition rejected in relation to the meaning of "direct result" in the authorities earlier canvassed. Why McHugh J introduced "immediate connection" is not explained in the passage relied upon. However, as McColl JA (with whom Ipp and Tobias JJA agreed) said in Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [72], it is likely that the construction of the expression "directly caused … by … [a] motor vehicle" was significantly influenced (as is apparent from the reasons of McHugh J at [63]) by the legislative history and purpose of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
129 For those reasons, I do not regard the passage relied upon by the Secretary as of much assistance. To my mind, the views expressed in Kaplan, and in particular those of Buchanan JA, are of greatest assistance. The remedial context in which Buchanan JA concluded that the word "direct" emphasised that "the crime is to play a significant role in bringing about the compensable injury" is similar to that under consideration here, although there are some differences, as I will highlight shortly. I also regard as helpful the observation, arising from the reasons of Nettle JA (but originally made in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 and Medlin v State Government Insurance Commission (1995) 182 CLR 1), that the question of causation must be judged as a common sense question of fact.
130 Causation principles developed by the common law address the attribution of responsibility to a wrongdoer. Ordinarily, there is a distinction drawn between factual causation and legal causation. The purpose of the former is to determine whether the wrongdoing was a necessary condition of the harm (the "but for" test): March at 515 (Mason CJ). The purpose of the latter is to determine, in the specific case, whether the wrongdoer should be held responsible: March at 515 (Mason CJ). So, where the wrongdoing satisfies the "but for" test of factual causation, on the basis of principles determined largely by reference to policy considerations, courts will then proceed to determine whether the wrongdoer should be held responsible: March at 515 (Mason CJ); see also Jaensch v Coffey (1984) 155 CLR 549 at 554-555 (Gibbs CJ). It is in that context, and in determining legal causation, that issues of foreseeability of damage and the relevance and consequence of an intervening cause are resolved.
131 The causal analysis is often said to depend upon the cause of action or rule of responsibility upon which the right to damages or compensation depends. As Gummow, Hayne and Heydon JJ said in Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568 at [99] "the case law … illustrates and emphasises that notions of 'cause' as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose". The same point was made by Nettle JA in Kaplan at [58] and by Gaudron J in Chappel v Hart (1998) 195 CLR 232 at 238 where her Honour said:
Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise.
132 Likewise, in Stephens v Giovenco [2011] NSWCA 53 at [15]-[17], Allsop P (with whom Tobias JA agreed on this issue) recognised that questions involving the ascription of legal responsibility will be dependent upon the rule of responsibility involved. At [16], Allsop P emphasised "that the causal analysis must be undertaken by reference to the rule of responsibility involved". Amongst other authorities for that proposition, Allsop P referred to Lord Hoffmann's speech in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29 and to the following observations made by Gummow and Hayne JJ in Travel Compensation Fund v Tambree (2005) 224 CLR 627 at [45]:
It is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked. As was recently emphasised in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, it is doubtful whether there is any "common sense" notion of causation which can provide a useful, still less universal, legal norm. There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant's obligation in the particular circumstances.
133 For those reasons, it is critical that the meaning and consequence to be given to the causal connection between harm and the terrorist act constituted by the expression "a direct result of" in s 1061PAA(2)(b), be determined by reference to the text, but also the scope and purpose of the scheme for compensation (AVTOP Scheme) established by Part 2.24AA of the Act.
134 The expression "as a direct result of" forms part of a provision which sets the eligibility criteria for a payment of compensation to a victim of a terrorist act. The provision is found in Part 2.24AA of the Act which was inserted by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (Cth). The long title of that Act identified it as:
An Act to provide support for Australian victims of terrorist acts occurring overseas, and for related purposes.
135 The Explanatory Memorandum to the Bill for that Act (Explanatory Memorandum) commenced with a "general outline" which said:
The Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill will establish a framework for the provision of financial assistance for Australians who are injured overseas as a result of terrorist acts and for close family members of Australians who are killed overseas as a result of terrorist acts.
The scheme acknowledges the special and tragic nature of terrorism by establishing a comprehensive financial assistance framework for the provision of assistance by amending the Social Security Act 1991, the Social Security (Administration) Act 1999, and the Income Tax Assessment Act 1997.
In particular, the Bill will:
• enable Australians who are victims of a declared overseas terrorist incident to claim financial support of up to $75,000;
• enable the Prime Minister to declare that a relevant overseas terrorist incident is one to which the Scheme applies;
• establish eligibility criteria so that payments can be made to either long-term Australian residents who are victims of a relevant overseas terrorist act, or in the event of the death of a victim, close family members;
• ensure that payments will not adversely affect a person's entitlement to compensation or damages under another Commonwealth law;
• ensure that victims are not required to repay or deduct Medicare or other benefits from any payment received under the Scheme;
• enable the Secretary to extend the period for assessing claims and making payments; and
• enable the enactment of legislative instruments to provide further guidance on the amount of assistance that each victim, or close family member, should receive.
136 The qualification criteria for an AVTOP is set out in s 1061PAA which is in the following terms:
Qualification for Australian Victim of Terrorism Overseas Payment
Qualification for AVTOP
(1) A person is qualified for an Australian Victim of Terrorism Overseas Payment if:
(a) the person is a primary victim or a secondary victim of a declared overseas terrorist act; and
(b) the person and the person's close family members were not involved in the commission of the terrorist act; and
(c) the person:
(i) is an Australian resident on the day the terrorist act occurred; or
(ii) is covered by a determination under subsection (6).
Note: For declared overseas terrorist act see section 35B.
Meaning of primary victim
(2) A person is a primary victim of a declared overseas terrorist act if the person:
(a) was in the place where the terrorist act occurred; and
(b) was harmed (within the meaning of the Criminal Code ) as a direct result of the terrorist act.
Meaning of secondary victim
(3) A person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who:
(a) was in the place where the terrorist act occurred; and
(b) died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.
Meaning of close family members
(4) The following are a person's close family members:
(a) the person's partner;
(b) the person's child;
(c) the person's parent;
(d) the person's sibling;
(e) the person's legal guardian.
Meaning of involved
(5) A person was involved in the commission of a declared overseas terrorist act if the person:
(a) aided, abetted, counselled or procured the terrorist act; or
(b) induced the terrorist act, whether through threats or promises or otherwise; or
(c) was in any way (directly or indirectly) knowingly concerned in, or a party to, the terrorist act; or
(d) conspired with others to effect the terrorist act.
Ministerial determination
(6) The Minister may, by legislative instrument, determine a specified class of persons for the purposes of subparagraph (1)(c)(ii).
137 Of significant importance in understanding the nature of the scheme is the recognition that it allows for the amount of compensation to be paid to an eligible person to be adjusted, including by reference to the particular circumstances in which the harm was suffered. Section 1061PAD provides (in respect of a primary victim) that the Secretary is to determine the amount of the AVTOP payable and must do so in accordance with the AVTOP Principles made under s 1061PAF. That provision provides for the Minister to set the principles or policy to be applied in awarding compensation. Two aspects are of particular significance. First, the AVTOP Principles may specify circumstances in which no payment is made despite a person meeting the qualification requirements (s 1061PAF(3)). Second, the AVTOP Principles may provide for the conduct of the claimant, amongst other circumstances, to be taken into account in determining the level of any payment to be made (s 1061PAF(2)(a)(vi)-(vii)).
138 Section 1061PAF provides:
AVTOP Principles
(1) 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.
(2) Without limiting subsection (1), the AVTOP Principles may provide that the following factors are to be taken into account when determining the amount of the payment:
(a) for a primary victim:
(i) the nature of the injury or disease suffered as a direct result of the terrorist act; and
(ii) the duration of the injury or disease; and
(iii) the impact of the injury or disease on the person's bodily and mental functions; and
(iv) the impact of the injury or disease on the person's life; and
(v) the likelihood of the person suffering future loss, injury or disease as a direct result of the terrorist act; and
(vi) the circumstances in which the injury or disease was incurred; and
(vii) whether the person was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred;
(b) for a secondary victim in relation to a close family member who has died:
(i) whether the person was dependant on the close family member; and
(ii) the nature of the relationship between the person and the close family member; and
(iii) the circumstances in which the close family member died; and
(iv) whether the close family member was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred; and
(v) whether there are other persons who have made a claim for an AVTOP as a secondary victim in relation to the close family member; and
(vi) if there are such other secondary victims and the person and each of the other secondary victims agree on the amount of the AVTOP that each should be paid--that agreement; and
(vii) if there are such other secondary victims and the person and each of the other secondary victims have not agreed on the amount of the AVTOP that each should be paid--whether the person has also made a claim as a secondary victim of the terrorist act in relation to another close family member;
(c) for a primary victim or a secondary victim:
(i) whether there was travel advice on an Australian government website advising against travelling to the foreign country, region or place where the terrorist act occurred; and
(ii) whether the person has been paid or is likely to be paid an amount by the Commonwealth, a State, a Territory, a foreign country or any other person or entity in relation to the terrorist act.
(3) The AVTOP Principles may specify circumstances in which the amount of an AVTOP is nil.
139 Unlike for the law of negligence, the line constituting the boundary of compensation under the AVTOP scheme is not marked out by reference to limits beyond which a wrongdoer should not be held responsible for his or her wrongdoing. The AVTOP scheme is remedial: it offers a gratuity provided out of public funds to deserving victims unlikely to have recourse to other relief. Its compensatory limits are drawn for different reasons and very differently to those drawn by the law of negligence, for breach of contract, or for breach of statutory duty. For example, the scheme includes harm inflicted upon a "secondary victim" (s 1061PAA(1)(a)), but excludes a person involved in the commission of the terrorist act or a close family member of that person (s 1061PAA(1)(b)). It is limited to Australian residents and those classes of persons covered by a Ministerial determination (s 1061PAA(1)(c)). The maximum compensation payable is capped and s 1061PAF facilitates the adoption of measures which allow for a form of apportionment of responsibility for the harm suffered by an eligible claimant.
140 Like the scheme considered in Kaplan, the AVTOP scheme has a remedial character. Unlike the scheme in Kaplan, the AVTOP scheme includes a "place" requirement in the first limb. That was a point of distinction emphasised by the Secretary but to my mind it says little as to the meaning of "direct result". The intent behind the "place" requirement in the first limb was expressed in the Explanatory Memorandum as follows:
Paragraph (2)(a) provides that the person must be in the place where the terrorist act occurred. The intention of paragraph (2)(a) is to disqualify persons who have watched or heard of the event through any form of public media from making a claim. Although they may be distressed by observing or hearing of the event, this is not enough to qualify for benefits.
The person must be physically 'in a place' where the overseas terrorist act occurs. This could be in the hotel foyer, an adjacent car park or across the road. However there must be close proximity to the overseas terrorist act.
141 It seems clear that the legislature intended that only persons who had first-hand experience of the terrorist act at the place at which it occurred should recover. In so far as it was intended that the pool of potential beneficiaries should be restricted to persons who had experienced the terrorist act first-hand, that intent is achieved by the first limb. It does not follow therefrom that a narrow or restrictive meaning was intended for the term "direct result".
142 Unlike the scheme in Kaplan, the AVTOP scheme includes, via the making of the AVTOP Principles, a capacity for a form of apportionment to be made. I note, in that respect, that AVTOP Principles have been made (Social Security (Australian Victim of Terrorism Overseas Payment) Principle 2013 (Cth)) and that pursuant to those principles a reduction of an AVTOP must be made where the Secretary decides that the primary victim "failed to take reasonable steps to avoid harm or acted recklessly when the terrorist act occurred" (cll 14(1)(a) and 15). The capacity to "apportion" in the sense of diminishing an AVTOP because of conduct of the claimant contributing to his or her harm, as Deane J said of apportionment legislation in March at 524, "gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances". Importantly, his Honour went on to say that in the context of the existence of a capacity to apportion, "the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident".
143 In that connection, I note that cl 15 of the Principles contemplates a mandatory reduction in the amount of an AVTOP of 10 per cent for failure to take reasonable steps to avoid harm or for acting recklessly. I am mindful that delegated instruments generally cannot be used in the interpretation of an Act (see Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed., LexisNexis Butterworths, 2014) at [3.41]), and I do not use the Principles for that purpose. It is nevertheless interesting, and consistent with my views concerning the "rule of responsibility" established for the AVTOP scheme, that the Principles contemplate that unreasonable or reckless acts by a claimant, which in the context of other causation tests might constitute a subsequent intervening act denying any right to recovery, results mandatorily only in a 10 per cent reduction in an AVTOP.
144 To my mind, bearing in mind the scope and purpose of the AVTOP scheme including the scheme's capacity to adjust compensation to fit the particular circumstances in which harm was occasioned, the purpose of the second limb is to limit compensable harm to harm for which the terrorist act bears some responsibility. The responsibility needs to be material or, adopting the words of Buchanan JA in Kaplan, "the [terrorist act] is to play a significant role in bringing about the compensable [harm]". That question should be judged according to common sense and experience.
145 I would add, by reference to what Buchanan JA said in the extract quoted at [119] above, that harm suffered by a person would not be a direct result of the terrorist act where the terrorist act is merely part of the background or, in other words, is too tenuous or remote as a basis for ascribing responsibility. Where other causes for the harm exist, whether or not the terrorist act played a significant role in bringing about the harm is to be assessed by weighing the contribution to the harm by the terrorist act against the other contributing causes. The requisite nexus will not be satisfied if, in the context of all contributing causes, the terrorist act is not able to be regarded as a significant contributing cause.
146 A conclusion that it was intended that the terrorist act need only be significant (in the above sense) in bringing about the harm is supported somewhat by the Explanatory Memorandum. In relation to what became s 1061PAA(2)(b) of the Act (what I have called the second limb) the Explanatory Memorandum said this (emphasis added):
Paragraph (2)(b) provides a second requirement that the person must be harmed (this can be physical or psychological harm). The intention is to ensure that only those who sustain some form of injury receive payment. Financial assistance should be available for people who suffer harm. People whose injuries are not permanent or serious should be eligible. However, they may receive a lower quantum than a person whose injuries are permanent or more serious.
147 There is no express reference there to the word "direct", but the passage I have highlighted is consistent with the proposition that no narrow conception of what is a direct result was intended. There is, however, an observation in the Explanatory Memorandum about the intended meaning of the expression "direct result" used in relation to what became s 1061PAA(3).
148 In relation to that provision, the Explanatory Memorandum said this (emphasis added):
Paragraph (3)(b) provides that to be a secondary victim, the deceased must die before the end of two years starting on the day the terrorist act occurred. The intention is to also provide a benefit for secondary victims even where the victim does not die immediately at the time of the overseas terrorist act, provided the cause of death is a direct result of the overseas terrorist act.
The question of whether this is a 'direct result' is a question of fact. This should be determined by medical evidence. If the injuries sustained during the terrorist attack are a significant contributing cause of death this would suffice.
149 With that understanding of the meaning of "as a direct result of", the assessment that should have been made, but on the AAT's approach was not, was one that weighed up each of the causes of Mr Hananeia's major depressive illness and post-traumatic stress disorder. It was uncontentious that Mr Hananeia suffered from that harm, but the facts suggest that, beyond the terrorist act, other factual causes of the harm or part of it suffered by Mr Hananeia were:
(1) his decision at about 11.00 pm on 12 October 2002 to travel from the Adi Dharma Hotel to the Sari Club, where the bombs had exploded, and stay for a period of time (first decision);
(2) his decision to return to the Sari Club later that night (second decision);
(3) his decision to return to the Sari Club at dawn the following day (third decision); and
(4) his decision to return to the Sari Club again on 14 October 2002 (fourth decision).
150 An appropriate assessment needed to be made as to what part of the harm suffered by Mr Hananeia was as a result of his travelling to, and his first attendance at, the Sari Club. In relation to any harm suffered as a result of that event, the terrorist act needed to be weighed with the first decision. The weighing up process needed to take into account the extent to which the first decision was itself a consequence of the terrorist act. It would, in my view, be relevant in that respect to take into account that a foreseeable consequence of a terrorist act constituted by an explosion in or adjacent to a public place is that immediately after the explosion bystanders may travel to and attend at the site of the explosion. That may be the result of shock, panic, or a reflex reaction. It may be driven by a humanitarian motivation to rescue or assist. It may simply be driven by curiosity. In my view, Parliament would have been aware of the foreseeability of that range of possible reactions. If foreseeable, I consider that there is nothing in the policy or purpose of the AVTOP scheme that would deny ascribing to the terrorist act some responsibility for a bystander's attendance: c.f. the observations of Brennan J at 569-570 of Jaensch in relation to the foreseeability of the attendance of various classes of persons at the scene of a car accident, and the observations of Deane J at 605-606.
151 The same kind of assessment should then have been made weighing up the contribution to harm made by the terrorist act as against the combination of the first and second decisions (in respect of harm suffered as a consequence of the second attendance), and then as against the combination of the first, second and third decisions (in connection with the third attendance), and so on, if it was the case that each or any of the second, third or fourth attendances materially contributed to the harm suffered by Mr Hananeia.
152 The relevance and consequence of a voluntary act in the causation analysis also depends upon the purpose, nature, and scope of the AVTOP regime. As Allsop P recognised at [15]-[17] of Stephens, questions of degree as to the voluntary act (of the claimant) will be dependent upon the rule of responsibility involved. To my mind, and given the considerations to which I have previously referred, a choice made under pressure created by the terrorist act should not ordinarily be regarded as voluntary: Haber v Walker [1963] VR 339 at 358-359 (Smith J); Stephens at [12]-[17] (Allsop P with whom Tobias JA agreed on this issue).
153 It is only where, based on the weighing-up process described above, the terrorist act could not be regarded as having made a significant contribution to any harm suffered by Mr Hananeia in connection with a particular attendance, that a conclusion should be reached that Mr Hananeia failed to satisfy the second limb in relation to that harm.
154 Although, as Gilmour J has noted, the applicant urged the Court to make its own findings as to the "direct result" question in the event that the Court found error in the AAT's approach, I would decline to do so. The nature of the requisite exercise which I have just described is not an exercise which is possible, let alone convenient, for this Court to carry out. The circumstances in which the discretion provided to this Court by s 44(7) of the AAT Act is to be exercised are limited and I consider it more appropriate for a new Tribunal to determine the outstanding questions: May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330 at [233] (Allsop CJ, Kenny, Besanko, Robinson and Mortimer JJ); Martin at [129] (Murphy J with whom Siopis J agreed), and at [53]-[54] (Flick J).
155 I would allow the appeal and set aside the decision of the AAT, and make an order remitting the case, other than the question of the satisfaction of the first limb which this Court has determined, to be heard and decided again according to law and without limitation as to the presentation of further evidence: O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [68]-[69] (Bromberg J).
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.