Family Assistance (Waiver of Debts — Disasters) (DEEWR) Specification 2011

Administered by Department of Social Services

Legislation au F2011L01267 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Family Assistance (Waiver of Debts —  Disasters) (DEEWR) Specification 2011

 

 

Made under section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999

 

 

Background

 

Section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) provides that the Secretary may decide to waive the Commonwealth’s right to recover debts arising under the Act that are included as a class of debts specified by the Minister by legislative instrument.

 

The purpose of this instrument is to specify a class of debts that may be waived. This would enable the Secretary to waive the Commonwealth’s right to recover debts arising under the Act, incurred by persons who were adversely affected by flooding disasters in late 2010 and early 2011. A mirror instrument under the social security law has also been made to enable the waiver of debts arising from similar circumstances under the social security law.

 

The 2010 and 2011 disasters have impacted physically and emotionally on disaster victims and their families. The reason for the making of this instrument is to ease the physical and emotional impact on a victim of the disasters, who unintentionally is receiving an incorrect family assistance payment.

 

Explanation of this instrument

 

Section 1 sets out the name of the instrument, being the Family Assistance (Waiver of Debts Disasters) (DEEWR) Specification 2011.

 

Section 2 provides that the instrument commences on the day after the end of the period for disallowing it, in accordance with section 42 of the Legislative Instruments Act 2003.

 

Section 3 contains definitions relevant to the Specification. Significantly, the term disaster is defined as:

  • the heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011;
  • the flooding in New South Wales determined to be a major disaster on 14 January 2011; and
  • the flooding in Victoria determined to be a major disaster on  

19 January 2011; and

  • the severe weather, storm surges and flooding in Queensland that resulted from Tropical Cyclone Yasi.

 

Section 4 specifies the class of debt that may be waived. A debt is in a specified class if:

  • the debt was incurred by a person, and the person was adversely affected by the disasters during the disaster period (the period beginning 1 November 2010 and ending at 19 March 2011); and
  • the debt was for a period that occurred either wholly or partly during the disaster period; and
  • if the debt was incurred for a period which occurred only partly during the disaster period, then it is the part of the debt that is attributable to days occurring in the disaster period.

 

Section 5 provides for when a person is considered ‘adversely affected’ by a disaster. A person is adversely affected if, as a direct result of a disaster:

  • the person was seriously injured; or
  • an affected family member of the person was killed; or
  • the person’s principal place of residence was destroyed; or
  • the person’s principal place of residence sustained major damage; or
  • the person was unable to return to his or her principal place of residence for at least 24 hours; or
  • a utility failure occurred in the person’s principal place of residence; or
  • the person experienced psychological trauma.

It is intended that a causal relationship must exist between the disaster and any of the circumstances listed above. For example, the utility failure must be caused by the disaster.

 

The term ‘seriously injured’ is defined in section 3. A person is seriously injured if they sustained injury and was admitted to hospital. It also includes the circumstance where a person would require admittance to hospital for their injury under normal circumstances, but due to the disaster conditions, this was not possible.

 

The terms ‘affected family member’ and ‘destroyed’ are also defined in  section 3.

 

Subsections 5(2) to 5(6) provide further definitions relevant to determining when a person is adversely affected.

 

A person is taken to have experienced ‘psychological trauma’ (as defined in subsection 5(6)) if they were in the immediate area of the disaster and one of the circumstances under paragraph 5(6)(b) was met. It is not necessary that a person has been medically diagnosed with psychological trauma, nor otherwise to prove that a person has actually experienced psychological trauma.

 

Section 6 provides for an exception to the class of debts specified in section 4. That is, a debt is excluded from the class of debts which may be waived if a debt is incurred wholly or partly due to the person, or another person, knowingly making a false statement or false representation or failing or omitting to comply with a provision of the family assistance law.

 

Consultation

 

Public consultation has not been undertaken as this instrument is of a purely beneficial character. Consultation was undertaken with Centrelink and the Department of Families, Housing, Community Services and Indigenous Affairs in relation to this instrument. A mirror instrument has also been made by the Minister for Families, Housing, Community Services and Indigenous Affairs to allow the waiver of debts for which the Minister for Families, Housing, Community Services and Indigenous Affairs has responsibility.

 

Regulatory Impact Statement

 

A Regulatory Impact Statement and a Business Costs Calculator are not required as the waiver of the Commonwealth’s right to recovery social security debts will have no regulatory or competition impacts, and will not impose compliance costs on businesses.

Overview

The Family Assistance (Waiver of Debts — Disasters) (DEEWR) Specification 2011, made under section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999, was enacted to address the financial hardships faced by individuals adversely affected by the floods and storms in late 2010 and early 2011 in Queensland, New South Wales, and Victoria. The policy objective of this legislation is to provide relief by enabling the waiver of debts arising from family assistance payments made during the disaster period, which ran from 1 November 2010 to 19 March 2011. This legislative instrument was developed in response to the significant physical and emotional impacts of these disasters on affected individuals and their families, aiming to ease their burden by waiving debts that were incurred due to the disasters, provided the affected persons were not at fault. The instrument was made without public consultation due to its beneficial nature and was developed in consultation with relevant government departments.

Scope and Application

The Family Assistance (Waiver of Debts — Disasters) (DEEWR) Specification 2011 applies to persons adversely affected by the specified flooding disasters in late 2010 and early 2011, enabling the waiver of debts incurred during the disaster period. This instrument operates within the Commonwealth jurisdiction and is made under section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999. It specifies that debts incurred by individuals who were adversely affected by the disasters, including those who were seriously injured, lost an affected family member, had their residence destroyed or significantly damaged, were unable to return to their residence for at least 24 hours, experienced a utility failure, or psychological trauma as a result of the disaster, may be waived. The waiver does not apply to debts arising from knowingly false statements or representations, or non-compliance with family assistance laws. The instrument commences on the day after the disallowance period under the Legislative Instruments Act 2003 and includes definitions to clarify terms such as "seriously injured" and "destroyed".

Key Provisions

The Family Assistance (Waiver of Debts — Disasters) (DEEWR) Specification 2011 (section 1) provides a specific class of debts that may be waived under the A New Tax System (Family Assistance) (Administration) Act 1999 (section 102). This specification aims to alleviate the burden on individuals adversely affected by natural disasters, such as the Queensland floods of 2010-2011 and the New South Wales and Victoria floods in January 2011. The legislation allows the Secretary to waive debts incurred by those who were adversely affected during the disaster period, which is defined as beginning on 1 November 2010 and ending on 19 March 2011 (section 4). The obligations imposed by the Act require the Secretary to identify individuals who were adversely affected by the specified disasters and incurred debts during the relevant period. The Act defines 'adversely affected' to include those who were seriously injured, experienced the death of an affected family member, had their principal place of residence destroyed or severely damaged, were unable to return to their residence for at least 24 hours, experienced utility failure, or suffered psychological trauma as a direct result of the disaster (section 5). The term'seriously injured' includes injuries that required hospital admission or would have required admission but were not possible due to disaster conditions. The Act also includes a provision that excludes debts incurred due to false statements or omissions (section 6). This means that if a debt was incurred as a result of knowingly providing false information or failing to comply with family assistance laws, the Secretary is not obliged to waive that debt. The instrument aims to ensure that the waiver is only applied to those who genuinely require relief due to the disaster. Failure to comply with the requirements of the Act may result in civil or criminal consequences, although specific penalties are not detailed in the Explanatory Statement. However, the nature of the waiver suggests that non-compliance with the Act's provisions could potentially lead to legal actions for misrepresentation or fraud, depending on the circumstances.

Legal classification tags

Area of Law
Family Law
Social Security Law
Instrument
Specification
Concepts
Definitions & Interpretation
Offence Provisions
Regulatory Standards
Catchwords
Waiver of Debts

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.