Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 8)
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 storms and associated flooding that commenced on 5 November 2009 affecting the mid-north coast region of New South Wales.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 8) (the Determination) 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 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 storms and associated flooding that commenced on 5 November 2009 affecting the mid-north coast region of New South Wales.
Schedule 2 to the Determination provides six circumstances where a person is taken to be adversely affected by the major disaster referred to in Schedule 1 provided that the circumstances occurred as a direct result of that disaster.
The first circumstance is where the person is seriously injured.
The second circumstance is where the person is isolated in their principal place of residence for a period of 24 hours or more.
The third circumstance is where the person was unable to return to their principal place of residence for a period of 24 hours or more.
The fourth circumstance is where a person’s principal place of residence has been destroyed.
The fifth circumstance is where a person’s principal place of residence has sustained major damage.
The sixth circumstance is where a person is the principal carer of a dependant child, and that child is adversely affected in the manner described by the five respective circumstances above.
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. 8) was enacted in 2009 to provide an immediate, one-off payment to Australians adversely affected by a major disaster, specifically targeting the storms and associated flooding that commenced on 5 November 2009 in the mid-north coast region of New South Wales. This legislation was introduced to address the urgent need for financial assistance for those significantly impacted by the disaster. Enacted by the Minister for Social Services under section 1061K of the Social Security Act 1991, the primary policy objective of this Determination is to ensure that individuals who are adversely affected by the specified disaster are quickly and effectively supported with financial aid. The urgency of the situation meant that formal consultation was not undertaken, reflecting the need for rapid legislative action to provide relief.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 8) applies to individuals adversely affected by the storms and associated flooding that commenced on 5 November 2009 in the mid-north coast region of New South Wales. This Determination, made under the Social Security Act 1991, specifies the circumstances in which a person is to be regarded as adversely affected by this particular major disaster. It sets out that a person is adversely affected if they are seriously injured, isolated in their principal place of residence for 24 hours or more, unable to return to their principal place of residence for the same duration, if their principal place of residence has been destroyed or sustained major damage, or if they are the principal carer of a dependant child who has been adversely affected by any of these circumstances. The Determination also includes a definition of "principal place of residence" and specifies that it is a legislative instrument not subject to disallowance by Parliament. Although formal consultation was not undertaken due to the urgent nature of the disaster, the Determination provides a clear framework for the provision of the Australian Government Disaster Recovery Payment to those in need.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 8) outlines the specific circumstances in which an individual may qualify for the Australian Government Disaster Recovery Payment (AGDRP). According to section 5 of the Determination, a person is considered adversely affected by the major disaster mentioned in Schedule 1 if they experience one of the specified circumstances detailed in Schedule 2. The first such circumstance is being seriously injured as a direct result of the disaster. The second circumstance is being isolated in their principal place of residence for 24 hours or more. The third is being unable to return to their principal place of residence for 24 hours or more. The fourth is having their principal place of residence destroyed, and the fifth is having it sustain major damage. Additionally, the sixth circumstance is being the principal carer of a dependent child who is adversely affected by any of the aforementioned circumstances.
The obligations imposed by this Determination on the parties it governs include ensuring that the criteria for being considered adversely affected are clearly understood and applied. Those affected by the disaster must provide evidence to substantiate their claims, such as medical certificates, isolation notices, or property damage assessments. The Department of Human Services is responsible for verifying these claims and processing payments accordingly. Additionally, the Minister's declaration under section 36 of the Social Security Act 1991, which identifies the event as a major disaster, sets the legal framework within which these obligations must be fulfilled. The urgency and nature of the disaster meant that formal consultation was not undertaken, as specified in the explanatory statement.
There are no explicit offences or penalties mentioned in the Determination itself. However, any breach of the requirements or fraudulent claims for the AGDRP would be subject to the general provisions of the Social Security Act 1991. Under this Act, providing false or misleading information to obtain a payment can be considered an offence. The penalties for such offences can include fines and, in severe cases, imprisonment. The maximum penalties for fraud under the Social Security Act can reach up to five years imprisonment, reflecting the seriousness with which such breaches are treated.