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

Administered by Department of Social Services

Legislation au F2011L01537 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Family Assistance (Waiver of Debts — Disasters) (FaHCSIA)

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) (FaHCSIA) 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
  • an affected family member of the person was seriously injured; 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 the Department of Education, Employment and Workplace Relations (DEEWR) in relation to this instrument. DEEWR has also consulted Centrelink on this issue. A mirror instrument has been made by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations to allow the waiver of debts for which the Minister 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) (FaHCSIA) Specification 2011 was enacted to address the financial burden faced by individuals adversely affected by the natural disasters that occurred in late 2010 and early 2011. This legislative instrument was made under section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999, empowering the Secretary to waive debts arising from family assistance payments made under the Act. The objective of this legislation is to alleviate the physical and emotional distress experienced by victims of these disasters, particularly those who have unintentionally received incorrect family assistance payments. This instrument was developed in response to the severe impact of the flooding and storms that affected Queensland, New South Wales, and Victoria during this period. The instrument specifies the class of debts that may be waived, focusing on those incurred by individuals who were adversely affected by the listed disasters between 1 November 2010 and 19 March 2011. It includes provisions for defining what constitutes an adversely affected person and excludes debts resulting from deliberate misrepresentations or non-compliance with family assistance laws. Although public consultation was not undertaken due to the purely beneficial nature of this instrument, internal consultations were held with relevant departments and agencies to ensure alignment with existing policies and to facilitate the implementation of a parallel instrument under the social security law.

Scope and Application

The Family Assistance (Waiver of Debts — Disasters) (FaHCSIA) Specification 2011, made under section 102 of the A New Tax System (Family Assistance) (Administration) Act 1999, applies to individuals who have incurred debts under the Act and were adversely affected by the flooding disasters in late 2010 and early 2011 in Queensland, New South Wales, and Victoria, as well as those affected by Tropical Cyclone Yasi in Queensland. The instrument defines the term 'disaster' to include specific flooding events in these regions and periods. It specifies a class of debts that may be waived for those who experienced serious injuries, loss of life in their family, major damage to their residence, or were unable to return to their home for at least 24 hours due to the disasters. Additionally, the definition of 'adversely affected' includes those who suffered psychological trauma as a result of being in the immediate area of the disaster. However, debts are excluded from this waiver if they result from knowingly making a false statement or representation or failing to comply with family assistance laws. This specification applies nationally but is specifically targeted towards those who were directly impacted by the named disasters. No subordinate instruments extend or restrict the application of this legislation.

Key Provisions

The Family Assistance (Waiver of Debts — Disasters) (FaHCSIA) Specification 2011 (the Specification) provides the Secretary with the authority to waive debts arising under the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) for individuals adversely affected by the 2010 and 2011 flooding disasters. The key provisions of the Specification are detailed in sections 3 and 4, which define the class of debts that may be waived. Section 4 specifies that a debt may be waived if it was incurred by a person who was adversely affected by the disasters during the specified disaster period (from 1 November 2010 to 19 March 2011) and the debt pertains to a period that occurred either wholly or partly during the disaster period. The Specification further outlines the criteria for being adversely affected by a disaster, which include serious injury, death or serious injury of an affected family member, destruction or major damage to the person’s principal place of residence, inability to return home for at least 24 hours, utility failure in the residence, or psychological trauma. The Specification imposes specific obligations on the Secretary and the affected individuals. The Secretary must determine whether a debt falls within the class specified and, if so, whether to exercise the waiver. Affected individuals must demonstrate that they meet the criteria for being adversely affected by the disaster and that the debt in question falls within the defined class. The Specification also includes an exception (section 6) for debts incurred due to false statements or representations or non-compliance with family assistance laws, which prevents the waiver of these specific types of debts. For breaches of the Act, the Specification does not explicitly outline criminal or civil penalties. However, the overarching legislation, the A New Tax System (Family Assistance) (Administration) Act 1999, contains provisions for penalties related to false statements or misrepresentations which may apply to any breaches of the related obligations imposed by the Specification. The maximum penalties for such breaches are significant and may include fines and imprisonment, reflecting the seriousness of making false claims or misrepresentations under the Act. The absence of specific penalties in the Specification does not diminish the potential consequences for non-compliance with the overarching Act.

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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.