Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 9)
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 Shires of Toodyay, Dandaragan and Coorow in the State of Western Australia that started on 29 December 2009 and that continued in December 2009.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 9) (Determination (No. 9)) 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.
Section 1 of Determination (No. 9) specifies the name of the determination.
Section 2 of Determination (No. 9) provides that it commences on the date it is signed.
Section 3 contains definitions relevant to Determination (No. 9).
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. 9) applies to the bushfires in the Shires of Toodyay, Dandaragan and Coorow in the State of Western Australia that started on 29 December 2009 and that continued in December 2009.
Schedule 2 to Determination (No. 9) provides ten 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’s principal place of residence has been destroyed.
The third circumstance is where a person’s principal place of residence has sustained major damage.
The fourth circumstance is where a person has been unable to return to their principal place of residence for a period of 24 hours or more.
The fifth circumstance is where a person’s principal place of residence has experienced utility failure for 48 hours or more.
A further five circumstances occur where a person is the principal carer of a child and any of the five situations specified in subparagraphs (i) to (v) of paragraph (f) of Schedule 2 (referred to above) apply. These five circumstances mirror the circumstances set out in paragraphs (a) – (e) of Schedule 2.
What constitutes “destroyed”, “experienced a utility failure”, “major damage”, “seriously injured” and “unable to return” is defined in section 3 of Determination (No. 9).
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. 9) was required as a matter of urgency.