Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4)
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 the event has such a significant impact on individuals that an Australian government response is required. Subsection 36(3) provides that the event may be one that occurs naturally or otherwise and may be one that occurs in Australia or outside Australia.
The Minister has made a determination under section 36 of the Act that applies to the terrorist attacks that began on 26 November 2008 in the south Mumbai area, India.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4) (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 terrorist attacks.
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 terrorist attacks that began on 26 November 2008 in the south Mumbai area, India.
Schedule 2 to the Determination provides two circumstances where a person is adversely affected. The first is where the person is seriously injured as a direct result of the major disaster referred to in Schedule 1. The second circumstance is where the person suffers psychological trauma as a direct result of the major disaster referred to in Schedule 1.
What is considered to constitute “seriously injured” and “psychological trauma” 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. 4) was enacted to address the urgent need for financial assistance to Australians affected by the terrorist attacks in Mumbai on 26 November 2008. This determination complements the Social Security Act 1991 by specifying the circumstances under which individuals are considered "adversely affected" by the Mumbai attacks, thereby qualifying them for the Australian Government Disaster Recovery Payment (AGDRP). The determination was made by the Minister for Families, Housing, Community Services and Indigenous Affairs under the authority provided by section 36 of the Act, which allows the Minister to declare a major disaster requiring a government response. The policy objective is to provide immediate relief to those who have been seriously injured or have suffered psychological trauma as a direct result of the disaster, as outlined in Schedule 2 of the determination. The urgency of the situation precluded formal consultation, and the determination is not subject to disallowance by Parliament.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4) applies to individuals who are adversely affected by the terrorist attacks that began on 26 November 2008 in the south Mumbai area, India. The Act targets Australian citizens or permanent residents who suffer direct consequences from the disaster, specifically serious injury or psychological trauma. The jurisdictional reach of the Act is national, as it pertains to events occurring both within Australia and abroad. The Act empowers the Minister to determine if an event qualifies as a "major disaster" under Section 36, which can include natural or man-made incidents. The Determination specifies that those who are seriously injured or suffer psychological trauma as a direct result of the disaster are eligible for the Australian Government Disaster Recovery Payment. This Determination is a legislative instrument and is not subject to disallowance by Parliament. Notably, the Determination was enacted with urgency and without formal consultation, reflecting the immediate need to provide support to affected individuals.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4) is structured to provide clarity and expedite the payment of the Australian Government Disaster Recovery Payment (AGDRP) to those affected by specific disasters. Section 1061K of the Social Security Act 1991 outlines the criteria for receiving the AGDRP, one of which is being “adversely affected by a major disaster.” Under subsection 1061L(2), the Minister can determine the specific circumstances that classify a person as adversely affected by a disaster. Section 36 of the Act allows the Minister to declare an event a "major disaster" if it significantly impacts individuals, warranting a government response. This determination was made for the terrorist attacks in Mumbai in 2008. The Determination specifies that a person is adversely affected by the mentioned disaster if they are seriously injured or suffer psychological trauma as a direct result, as detailed in Schedule 2.
Under the Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4), the obligations are clear and focused on ensuring that eligible individuals receive the AGDRP. The Minister's determination, which applies to the Mumbai attacks, identifies two specific ways in which a person must be adversely affected to qualify for the payment: being seriously injured or suffering psychological trauma as a direct result of the disaster. The definitions of "seriously injured" and "psychological trauma" are provided in section 3 of the Determination, ensuring that the terms are interpreted consistently. The Determination also stipulates that it commences on the date it is signed, which is detailed in section 2. The urgency of the situation meant that formal consultation was not feasible, but the provisions are designed to provide swift and effective support to those in need.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4) also outlines the potential consequences for breaches or non-compliance with its provisions. While the primary focus is on providing support to those affected by the disaster, the Act's legislative framework ensures that the determinations made under it are robust and enforceable. Subsection 1061L(3) of the Act confirms that the Minister's determination is a legislative instrument, which is not subject to disallowance by Parliament. This means that the determination stands as law unless otherwise amended by Parliament. There are no specific penalties outlined in the Determination for failing to comply with its provisions, but non-compliance with legislative instruments can result in civil or criminal penalties as prescribed by the relevant legislation. The urgency and nature of the disaster response mean that the focus remains on providing timely assistance rather than punitive measures.
In summary, the Social Security (Australian Government Disaster Recovery Payment) Determination 2008 (No. 4) is a legislative instrument designed to provide immediate relief to Australians adversely affected by the Mumbai terrorist attacks. It clarifies the criteria for receiving the AGDRP, imposes specific obligations on the Minister to determine eligibility, and ensures that the Determination is effective and enforceable. While the primary aim is to support those in need, the legislative framework provides a basis for accountability and compliance, ensuring that the determinations made are carried out effectively and efficiently.