Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 6)
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 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 government response is required.
The Minister has made a declaration under section 36 of the Act that applies to the earthquakes and associated tsunamis that occurred on 30 September 2009 (AEST) and impacted Pacific Islands including the islands of Samoa, American Samoa and Tonga.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 6) (the Determination) sets out the circumstances in which a person is to be regarded as “adversely affected” by the earthquakes and associated tsunamis.
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 earthquakes and associated tsunamis that occurred on 30 September 2009 (AEST) and impacted Pacific Islands including the islands of Samoa, American Samoa and Tonga.
Schedule 2 to the Determination provides four circumstances where a person is taken to be adversely affected by the major disaster referred to in Schedule 1.
The first three circumstances apply to where an Australian was, on 30 September 2009, in an area directly impacted by the major disaster and, as a direct result of the major disaster, was seriously injured, or was an eye witness to a person seriously injured in the disaster, or was an eye witness to the remains, body or bodies of a person or persons killed.
The fourth circumstance is where an Australian is the immediate family member of an Australian victim and is considered to be one of up to three of the most appropriate immediate family members to make a claim for the AGDRP in respect of the major disaster.
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. 6) was introduced to address the immediate need for financial support for Australians adversely affected by the major disaster involving the earthquakes and associated tsunamis that occurred on 30 September 2009, which impacted the Pacific Islands including Samoa, American Samoa, and Tonga. This Determination was made under the authority of section 1061L of the Social Security Act 1991, empowering the Minister to specify circumstances in which a person is to be considered "adversely affected" by such a disaster. The determination provides a clear framework for eligibility for the Australian Government Disaster Recovery Payment, which is a one-off payment intended to assist those directly impacted by the disaster. The policy objective is to ensure swift and targeted financial aid to those most in need, without the delay associated with formal legislative processes, given the urgent nature of the disaster.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 6) applies to Australians who have been adversely affected by the earthquakes and associated tsunamis that occurred on 30 September 2009 and impacted the Pacific Islands including the islands of Samoa, American Samoa and Tonga. The Act establishes the qualification criteria for the Australian Government Disaster Recovery Payment (AGDRP), which provides a one-off payment to those affected by the disaster. The determination specifies the circumstances under which a person is considered adversely affected by the disaster, such as being seriously injured, witnessing a serious injury or death, or being an immediate family member of a victim. The Determination is a legislative instrument and is not subject to disallowance. It was required urgently, and formal consultation was not undertaken due to the immediacy of the situation. The Determination is part of the Social Security Act 1991 and is applicable on a national level, providing relief to those impacted by the disaster.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 6) (the Determination) include section 4, which provides specific criteria for when a person can be regarded as adversely affected by the earthquakes and associated tsunamis that occurred on 30 September 2009. According to this section, an Australian is adversely affected if they were present in an area directly impacted by the disaster and experienced serious injury, witnessed someone else being seriously injured, or witnessed the remains of a deceased person. Additionally, the Determination allows for immediate family members of Australian victims to be considered adversely affected if they are among the most appropriate family members to claim the payment. These criteria are outlined in Schedule 2 of the Determination, which complements Schedule 1 that identifies the specific disaster.
The obligations and requirements imposed by the Determination primarily concern the eligibility criteria for the Australian Government Disaster Recovery Payment (AGDRP). The Act, through its section 1061K, stipulates that to qualify for the AGDRP, a person must be adversely affected by a major disaster. The Determination clarifies the specific circumstances under which an individual can be considered adversely affected. This includes being in a designated disaster zone and experiencing certain direct impacts of the disaster, or being an immediate family member of a victim. Furthermore, the Minister’s determination under section 36 of the Act identifies the earthquakes and associated tsunamis as a major disaster, thereby formalising the conditions for AGDRP eligibility.
Breaches of the provisions outlined in the Determination could lead to civil or criminal consequences. Although the Determination itself does not explicitly state penalties for non-compliance, violations of the Social Security Act 1991, from which the Determination derives its authority, can result in penalties. Under section 236 of the Act, penalties for providing false or misleading information to obtain a payment can include fines of up to 5,000 penalty units, imprisonment for up to five years, or both. These penalties underscore the seriousness of providing incorrect information in relation to disaster recovery payments.