EXPLANATORY STATEMENT

Social Security Act 1991

Social Security (Australian Government Disaster Recovery Payment—Amount Of Payment For Disasters Outside Australia) Determination 2018

(Subsections 1061P(4) and (5))

1. Instrument LIN 18/134 (the instrument) is made under subsections 1061P(4) and (5) of the Social Security Act 1991 (the Act).
2. The Australian Government Disaster Recovery Payment (the AGDRP) provides a one‑off payment to Australians adversely affected by a major disaster either in or outside Australia.  Division 1 of Part 2.24 of the Act provides the qualification criteria to access the AGDRP.
3. The rates of the AGDRP payable for major disasters outside Australia are determined by the Minister in accordance with subsections 1061P(4) and (5) of the Act. Different rates of payment are specified for adults (subsection 1061P(4)) and children (subsection 1061P(5)).
4. Section 1601N of the Act provides that the amount of AGDRP payable to a person in relation to a major disaster outside Australia is the amountadult rate of payment determined by the Minister (paragraph 1061N(a)) and, if the person is the principal carer for one or more children, the amountchild rate of payment determined by the Minister multiplied by the number of children for whom the person is the principal carer (paragraph 1061N(b)).
5. Section 6 of the instrument provides the The instrument provides in section 6 that the amountadult rate of  determined by the Minister under subsectionthe AGDRP payable for major disasters outside Australia  1061P(4) of the Act is $1000. The effect of this section is to provide that, subject to the qualification requirements set out in Division 1 of Part 2.24 of the Act, the AGDRP payable to a person in relation to a major disaster that occurs outside Australia is $1000.
6. The instrument provides in Ssection 7 of the instrument provides the child rate of the AGDRP payable for major disasters outside Australia that the amount determined by the Minister under subsection 1061P(5) of the Act is $400. The effect of this section is to provide that, if the person described in paragraph 3 above is the principal carer of a child, the amount payable to the person is to include $400 for each child for whom the person is the principal carer.
7. Subsections 1061P(4) and (5) of the Act provide that the amounts determined must not exceed the adult rate and the child rate of the AGDRP payable for major disasters in Australia set out in section 1061M of the Act, for the financial year in which the determination is made. Subsection 1061M(2) provides the adult rate of the AGDRP payable for a major disaster that occurs in Australia is either the amount determined by the Minister, or, if the Minister has never determined an adult rate of payment, $1,000. Similarly, subsection 106M(3) provides the child rate of the AGDRP payable for a major disaster that occurs in Australia is either the amount determined by the Minister, or, if the Minister has never determined an adult rate of payment, $400.
8. The Minister has never determined an adult rate or a child rate for the purposes of subsections 1061M(2) and 1061M(3) of the Act and, therefore, the amounts determined by the instrument as the adult and child rates of payment for major disasters outside Australia under subsections 1061P(4) and 1061P(5) of the Act for the purposes of paragraphs 1061N(a) and 1061N(b) of the Act, must not exceed $1000 and $400 respectively.  The instrument sets the adult and child rates of the AGDRP payable for disasters outside Australia at $1000 and $400 respectively, and therefore complies with this requirement.
9. Section 36 of the Act provides for the Minister to make a determination in writing that an event is a “major disaster” if certain conditions are satisfied. Subsections 5(15) to (24) of the Act provide for when a person is the “principal carer” of a child.

6.             Subsections 1061P(4) and (5) of the Act provide that the amounts determined must not exceed the adult rate and the child rate as set out in section 1061M of the Act, for the financial year in which the determination is made. The Minister has never determined an adult rate or a child rate for the purposes of subsections 1061M(2) and 1061M(3) of the Act and, therefore, paragraph (c) of each of those subsections applies such that the amount determined under subsections 1061P(4) and 1061P(5) for the purposes of paragraphs 1061N(a) and 1061N(b) must not exceed $1000 and $400 respectively.  The instrument complies with this requirement. 

7.10.       Schedule 1 to the instrument repeals the Social Security (Australian Government Disaster Recovery Payment – Amount of payment for disasters outside Australia) Determination 2008 (F2008L04535) which is due to sunset on 1 April 2019.  The Minister’s power to repeal this instrument is contained in subsections 1061(4) and (5) of the Act as provided by subsection 33(3) of the Acts Interpretation Act 1901, which states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

8.11.       In accordance with paragraph 15J(2)(d) of the Legislation Act 2003, prior to making this instrument consultation was conducted with the Department of Social Services and the Department of Foreign Affairs and Trade.

9.12.       The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 23942).

10.13.Subsection 1061P(6) of the Act provides that section 42 of the Legislation Act 2003 (disallowance) does not apply to this instrument.  Therefore a Statement of Compatibility with Human Rights is not required.

11.14.The instrument commences on the day after registration on the Federal Register of Legislation.