Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (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(1) of the Act provides that, for the purposes of the Act, “a person is adversely affect 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 government response is required.
The Minister has made a declaration under section 36 of the Act that applies to the flooding that occurred as a result of the rain depression caused by Tropical Cyclone Ellie which commenced on 31 January 2009 and affected the Far North and Northern regions of Queensland.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (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 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 contains a specific definition of “principal place of residence”.
Section 5 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 flooding that occurred as a result of the rain depression caused by Tropical Cyclone Ellie which commenced on 31 January 2009 and affected the Far North and Northern regions of Queensland.
Schedule 2 to the Determination provides five circumstances where a person is adversely affected as a direct result of the major disaster referred to in Schedule 1.
The first circumstance is where the person is seriously injured.
The second circumstance is where the person is the immediate family member of an Australian killed and is the first family member to make a claim for the AGDRP in respect of the major disaster mentioned in Schedule 1.
The third circumstance is where the person’s principal place of residence has been destroyed.
The fourth circumstance is where a person’s principal place of residence has sustained major damage.
The fifth circumstance is where a person’s principal place of residence is inaccessible for a period of 48 hours or more.
For the purposes of the second circumstance, the meaning of Australian an immediate family member is further clarified in Schedule 2.
What is considered to constitute “destroyed”, “inaccessible”, “major damage” and “seriously injured” 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 2009 (No. 1) was enacted to address the immediate financial needs of individuals adversely affected by the flooding in the Far North and Northern regions of Queensland caused by Tropical Cyclone Ellie in January 2009. This legislation was introduced to provide an immediate, one-off payment under the Social Security Act 1991, specifically targeting those who suffered significant personal and property impacts from the disaster. The policy objective was to offer prompt financial relief to those most affected, facilitating quicker recovery and support during an emergency situation. The Minister for Social Services made the declaration under section 36 of the Social Security Act, determining the circumstances of adverse effect and the specific criteria for eligibility, thus enabling the swift implementation of the Disaster Recovery Payment.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 1) applies to individuals who have been adversely affected by the major disaster declared under section 36 of the Social Security Act 1991. Specifically, the Determination addresses the flooding caused by the rain depression resulting from Tropical Cyclone Ellie, which impacted the Far North and Northern regions of Queensland starting on 31 January 2009. To qualify for the Australian Government Disaster Recovery Payment, a person must meet the criteria of being adversely affected as outlined in the Determination. This includes being seriously injured, being an immediate family member of an Australian killed and the first family member to claim for the payment, having their principal place of residence destroyed, sustaining major damage to their principal place of residence, or having their principal place of residence become inaccessible for 48 hours or more. The definitions of "destroyed," "inaccessible," "major damage," and "seriously injured" are specified in the Determination. The Minister's declaration and subsequent determination are legislative instruments that are not subject to disallowance by the Parliament. The urgency of the situation meant that formal consultation was not undertaken in the creation of this Determination.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 1) are sections 1 to 5, which establish the framework for the AGDRP in the context of the flooding caused by Tropical Cyclone Ellie in Queensland in January 2009. Section 1 identifies the determination, while Section 2 specifies its commencement date. Section 3 provides definitions pertinent to the determination, and Section 4 defines "principal place of residence". Most critically, Section 5 outlines the specific circumstances under which a person is deemed to be adversely affected by the disaster, as detailed in Schedule 2.
The Act imposes several obligations on the parties it governs. Firstly, individuals who believe they are adversely affected by the disaster must demonstrate that they meet one of the specified criteria outlined in Schedule 2 of the Determination. This includes providing evidence of serious injury, being an immediate family member of a deceased Australian, or proving that their principal place of residence has been destroyed, sustained major damage, or is inaccessible for 48 hours or more. Additionally, the Minister is responsible for determining whether an event constitutes a major disaster under Section 36 of the Act, and for defining the circumstances of adverse effects under Section 1061L(2). The Act also requires that formal consultation be undertaken in the creation of such determinations, although in this case, urgency precluded such consultation.
There are no specific offences, penalties, or consequences for breach outlined in the Act or the Determination. However, the failure to comply with the requirements for eligibility, such as providing false information or documents, could potentially lead to civil or criminal consequences under other relevant legislation, such as the Crimes Act 1914, which covers offences related to fraud and deception. The penalties for such offences can vary widely depending on the severity and circumstances of the offence, but can include substantial fines and imprisonment.