Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2011 (No. 1) (WA)
The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to Australians adversely affected by a major disaster.
Section 1061K of the Social Security Act 1991 (the Act) specifies the qualification criteria for the AGDRP. One of the qualification criteria requires a person to be “adversely affected by a major disaster”.
Subsection 1061L(1) of the Act provides that, for the purposes of the Act, “a person is adversely affected by a major disaster if the person is affected by the disaster in a way determined by the Minister in relation to the disaster”.
Subsection 1061L(2) of the Act provides that the “Minister may determine in writing, in relation to a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster”.
Section 36 of the Act empowers the Minister to determine in writing that an event is a “major disaster” if the Minister is satisfied that an event is a disaster that has such a significant impact on individuals that a Commonwealth Government response is required.
The Minister has made a declaration under section 36 of the Act that applies to:
- the bushfire in the Waroona Local Government Area of the State of Western Australia that started on 10 January 2011; and
- the bush fires in the surrounding areas of Perth in the State of Western Australia that started on 5 February 2011 and continued during February 2011.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 5) (Determination (No. 5)) gives effect to the declaration referred to above and sets out the circumstances in which a person is to be regarded as “adversely affected” by the bush fires.
Section 1 of Determination (No. 5) specifies the name of the determination.
Section 2 of the Determination (No. 5) provides that it commences on the day after it is registered.
Section 3 contains definitions relevant to Determination (No. 5).
Section 4 provides that for the purposes of subsection 1061L(2) of the Act, a person is adversely affected by a major disaster mentioned in Schedule 1 if the person is affected in the way mentioned in Schedule 2.
Schedule 1 to Determination (No. 5) applies to:
- the bushfire in the Waroona Local Government Area of the State of Western Australia that started on 10 January 2011; and
- the bush fires in the surrounding areas of Perth in the State of Western Australia that started on 5 February 2011 and continued during February 2011.
Schedule 2 to Determination (No. 5) provides six circumstances where a person is adversely affected as a result of the major disaster referred to in Schedule 1.
The first circumstance is where the person is seriously injured as a direct result of the major disaster.
The second circumstance is where a person is an immediate family member of an Australian who is killed as a direct result of the major disaster.
The third circumstance is where the person’s principal place of residence has been destroyed or has sustained major damage as a direct result of the major disaster.
The fourth circumstance is where a person has been unable to return to their principal place of residence for a period of 24 hours or more as a direct result of the major disaster.
The fifth circumstance is where a person’s principal place of residence was without electricity, water, gas, sewerage service for 48 hours or more as a result of the disaster.
A sixth circumstance occurs where a person is the principal carer of a child and any of the five situations specified in paragraphs (a) to (b) of Schedule 2 (referred to above) apply to that child.
What constitutes “the Act”, “destroyed”, “immediate family member”, “major damage”, “seriously injured” and “principle place of residence” is defined in section 3 of Determination (No. 5).
Subsection 1061L(3) of the Act provides that a determination under section 1061L is a legislative instrument.
This instrument is not subject to disallowance by the Parliament (subsection 1061L(3) of the Act provides that section 42 of the Legislative Instruments Act 2003 does not apply to the determination).
Formal consultation has not been undertaken as Determination (No. 5) was required as a matter of urgency.
Overview
The Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2011 (No. 1) (WA) was enacted to provide an immediate response to Australians adversely affected by major disasters in Western Australia. This legislation addresses the need for a swift and clear framework to assist individuals impacted by the bushfires in the Waroona Local Government Area and surrounding areas of Perth that occurred in early 2011. Enacted by the Australian Government, the primary policy objective of this determination is to ensure that those significantly affected by these disasters receive timely financial support. The legislation outlines specific circumstances under which a person can be considered adversely affected, such as being seriously injured, losing an immediate family member, or experiencing significant damage to their principal place of residence. This determination, which does not require formal consultation due to its urgent nature, sets out the criteria for eligibility for the Australian Government Disaster Recovery Payment under the Social Security Act 1991.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2011 (No. 1) (WA) amends the Social Security Act 1991 to facilitate the payment of the Australian Government Disaster Recovery Payment (AGDRP) to individuals adversely affected by specific major disasters in Western Australia. This Act applies to persons who have suffered directly as a result of the bushfires in the Waroona Local Government Area and the surrounding areas of Perth, which started on 10 January and 5 February 2011 respectively. The Act identifies individuals as being adversely affected if they are seriously injured, are immediate family members of those killed, have had their principal place of residence destroyed or damaged, were unable to return home for 24 hours or more, had essential services interrupted for 48 hours or more, or are principal carers of children affected by any of these circumstances. The determination outlines the qualifying conditions for the payment and specifies the affected areas and circumstances in detail. Notably, this instrument is a legislative instrument and is not subject to disallowance, reflecting the urgent nature of the response required by these disasters.
Key Provisions
The key sections of the Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2011 (No. 1) (WA) (the Determination) clarify the specific circumstances under which an individual qualifies for the Australian Government Disaster Recovery Payment (AGDRP) following a major disaster. Section 4 of the Determination identifies the ways in which a person is considered to be adversely affected by the bushfires in the Waroona Local Government Area and surrounding areas of Perth in Western Australia, both of which were declared as major disasters under section 36 of the Social Security Act 1991 (the Act). These circumstances include being seriously injured, being an immediate family member of someone killed, having one's residence destroyed or significantly damaged, being unable to return home for 24 hours or more, experiencing prolonged service outages, or being the principal carer of a child affected by any of these circumstances.
The Determination imposes specific obligations on both the applicants for the AGDRP and the relevant authorities. Applicants must provide evidence that they meet one of the adverse circumstances outlined in Schedule 2, and they must satisfy the definition of “adversely affected” as per the determination. The authorities responsible for processing claims are required to assess applications based on the criteria set out in the Determination and ensure that only those who meet the specified conditions receive the payment. The Minister, under section 36 of the Act, must also determine whether an event qualifies as a major disaster and specify the circumstances that deem an individual adversely affected by such an event.
Failure to comply with the requirements of the Act or the Determination can result in various consequences. While the Determination itself does not specify penalties for non-compliance, section 1061L(3) of the Act states that determinations under this section are legislative instruments not subject to disallowance by Parliament, indicating a high level of legal formality and importance attached to these determinations. Additionally, the Act, in general, provides for potential civil or criminal penalties for fraud or misrepresentation in the context of social security payments, which could apply if an individual knowingly provides false information to qualify for the AGDRP. The specific penalties for such offences would depend on the nature and severity of the offence under the relevant provisions of the Act.