Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (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) 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 bushfires in the State of Victoria that started during the period 29 January 2009 to February 2009 and which continued to burn in February 2009. The declaration also covers the possibility that these bushfires continued to burn in March 2009.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 4) (Determination (No. 4)) 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 bushfires.
On 8 February 2009 the Minister made the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 2) (Determination (No. 2)). On 14 February 2009 the Minister made the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 3) (Determination (No. 3)). Determination (No. 3) included additional circumstances in which a person is “adversely affected” by the bushfires. The additional circumstances were set out in paragraphs (f), (g) and (h) of Determination (No. 3).
The new determination, Determination (No. 4), extends the circumstances in which a person is to be taken to be “adversely affected” by the bushfires. Determination (No. 4) also declares a person, who is the principal carer of a child, to be “adversely affected” by the bushfires where, as a direct result of the bushfires, any of the following circumstances apply:
(a) the child is seriously injured;
(b) the child is an immediate family member of an Australian killed and the person is the first to make a claim for the Australian Government Disaster Recovery Payment in respect of the deceased Australian;
(c) the child’s place of residence has been destroyed;
(d) the child’s place of residence has sustained major damage;
(e) the child is unable to return to their principal place of residence for a period of 24 hours or more;
(f) the child experienced psychological trauma;
(g) the child’s principal place of residence experienced a utility failure for a period of 24 hours or more since 8 February 2009; or
(h) the child’s principal place of residence experienced a utility failure for a period of 24 hours or more.
The above new circumstances are set out in paragraph (i) of Schedule 2 to the Determination (No. 4). By virtue of the operation of paragraph 13(1)(b) of the Legislative Instruments Act 2003, the term “principal carer” used in paragraph (i) of Schedule 2 to the Determination (No. 4) has the same meaning as in the Act (see subsections 5(15) to (24)).
Section 1 of Determination (No. 4) specifies the name of the determination.
Section 2 of Determination (No. 4) provides that it commences on the date it is signed.
Section 3 contains definitions relevant to Determination (No. 4).
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 Determination (No. 4) applies to the bushfires in the State of Victoria:
(a) that started during the period 29 January 2009 to February 2009; and
(b) that continued in February 2009; and
(c) if they continue after February 2009 — that continued in March 2009.
Schedule 2 to Determination (No. 4) provides sixteen 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 24 hours or more.
The sixth circumstance is where a person experienced psychological trauma.
The seventh circumstance is where a person’s principal place of residence has experienced utility failure for 48 hours or more since 8 February 2009.
The eighth circumstance is where a person’s principal place of residence has experienced utility failure for 48 hours or more. Paragraph (h) was added by Determination (No. 3) to ensure that, in the event that there is uncertainty about the legal effectiveness of paragraph (g), then it is intended that paragraph (g) would be severed and the remainder of the determination would apply. This provision is retained in Determination (No. 4) for the same reason.
A further eight circumstances occur where a person is the principal carer of a child and any of the eight situations specified in subparagraphs (i) to (viii) of paragraph (i) of Schedule 2 (referred to above) apply.
What constitutes “destroyed”, “major damage”, “seriously injured” and “unable to return” is defined in section 3 of Determination (No. 4). There are also further definitions set out in Schedule 2.
The meanings of “Australian”, “immediate family member” and “experienced psychological trauma” are defined in Schedule 2.
The meaning of “a person’s principal place of residence has experienced utility failure for 48 hours or more since 8 February 2009” is defined in Schedule 2.
The meaning of “a person’s principal place of residence has experienced utility failure for 48 hours or more” is defined in Schedule 2.
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. 4) was required as a matter of urgency.