Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1)
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) contains the qualification criteria for the AGDRP. One of the qualification criteria requires a person to be “adversely affected by a major 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 government response is required.
The Minister has made a determination under section 36 of the Act that applies to the storms and associated flooding that began on 13 January 2008 in the Mackay and Whitsunday regions of Queensland and continued on to affect other areas of Queensland.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1) (the Determination) 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 storms and associated flooding.
Section 1 of the Determination specifies the name of the Determination.
Section 2 of the Determination provides that it commences on the date it is signed.
Section 3 contains definitions relevant to the Determination.
Section 4 provides that for the purposes of subsection 1061L(2) of the Act, a person is adversely affected by a disaster mentioned in Schedule 1 if the person is affected in the way mentioned in Schedule 2.
Schedule 1 to the Determination applies to the storms and associated flooding that began on 13 January 2008 in the Mackay and Whitsunday regions of Queensland and continued on to affect other areas of Queensland.
Schedule 2 to the Determination provides three circumstances where a person is adversely affected. The first is where the person is seriously injured and is admitted to hospital for treatment for a period of 48 hours or more as a direct result of the major disaster referred to in Schedule 1. The second circumstance is where the person’s principal place of residence has been destroyed as a direct result of the major disaster referred to in Schedule 1. The third circumstance is where the person’s principal place of residence has been damaged as a direct result of the major disaster referred to in Schedule 1.
What is considered to constitute “damaged” is as defined in section 3 of the Determination.
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 the Determination was required as a matter of urgency.
Overview
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1) was enacted to provide immediate relief to Australians adversely affected by a major disaster, specifically the storms and associated flooding that occurred in the Mackay and Whitsunday regions of Queensland from 13 January 2008, which subsequently affected other areas of Queensland. The Act aims to address the urgent need for financial support to those severely impacted by the disaster, ensuring they receive necessary assistance without delay. The enactment of this legislation falls under the Social Security Act 1991, with the policy objective being to provide a one-off payment to mitigate the immediate adverse effects of the disaster on affected individuals. The Minister for Social Services has the authority to declare a major disaster and specify the circumstances under which a person is considered adversely affected, with this determination taking precedence due to the urgent nature of the situation, bypassing the need for formal consultation and disallowance by the Parliament.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1) applies to individuals adversely affected by the major disaster that was declared by the Minister under Section 36 of the Social Security Act 1991. This legislation specifically addresses the storms and associated flooding that commenced on 13 January 2008 in the Mackay and Whitsunday regions of Queensland and subsequently impacted other areas of the state. The Determination delineates the criteria under which a person is considered adversely affected, which includes being seriously injured and hospitalised for 48 hours or more, having their principal place of residence destroyed, or having it damaged as a direct result of the disaster. The Determination, as a legislative instrument, is not subject to disallowance and was enacted without formal consultation due to the urgent need to provide relief. This instrument is operational within the Commonwealth jurisdiction, applying specifically to affected areas in Queensland.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 1) (the Determination) are sections 1 to 4. Section 1 provides the name of the Determination, while section 2 states that it commences on the date it is signed. Section 3 contains definitions relevant to the Determination, and section 4 specifies the circumstances under which a person is to be regarded as adversely affected by the disaster mentioned in Schedule 1. Specifically, the Determination outlines three circumstances where a person is adversely affected, as detailed in Schedule 2. These circumstances include serious injury resulting in hospital admission for 48 hours or more, destruction of the principal place of residence, or damage to the principal place of residence, with the definition of "damaged" provided in section 3 of the Determination.
The Determination imposes several obligations and requirements on the parties it governs. Primarily, it requires that individuals who have been adversely affected by the specified major disaster must meet one of the three outlined circumstances to be eligible for the Australian Government Disaster Recovery Payment. It is also necessary for applicants to provide evidence that substantiates their claims of adverse effects, such as hospital records for injury claims or documentation of property damage. The Determination necessitates that these submissions are made within the stipulated timeframes and comply with the specific requirements set forth in the legislation to ensure the expeditious and accurate distribution of payments.
Under this legislation, breaches or non-compliance with the requirements can lead to civil or criminal consequences. Although the Determination does not explicitly state penalties, it is enacted under the Social Security Act 1991, which may impose penalties for fraudulent claims or misrepresentations. Such penalties could include fines or other civil sanctions, and in severe cases, criminal charges could be pursued. The maximum penalties would be dictated by the overarching Social Security Act, which could include substantial fines and imprisonment for deliberate fraudulent activities.
The Determination is a legislative instrument and is not subject to disallowance by the Parliament, as specified in subsection 1061L(3) of the Act. The urgency of the situation precluded formal consultation, which is a notable aspect of this Determination. The overarching aim of the legislation is to swiftly provide financial assistance to those adversely affected by the disaster, thereby facilitating a rapid recovery process for the impacted individuals and communities.