Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment) Determination 201 (No. 3)
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 heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011.
The Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1) (Determination (No. 1)) 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 floods.
Section 1 of Determination (No. 1) specifies the name of the determination.
Section 2 of Determination (No. 1) provides that it commences on the date it is registered.
Section 3 contains definitions relevant to Determination (No. 1).
Section 4 provides that for the purposes of subsection 1061L(2) of the Act, a person is adversely affected by a major disaster mentioned in Schedule 1 if the person is affected in the way mentioned in Schedule 2.
Schedule 1 to Determination (No. 1) applies to the heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011.
Schedule 2 to Determination (No. 1) provides six 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 a person is an immediate family member of an Australian who is killed.
The third circumstance is where the person’s principal place of residence has been destroyed or has sustained major damage.
A further three circumstances occur where a person is the principal carer of a child and any of the three situations specified in paragraphs (a) to (c) of Schedule 2 (referred to above) apply to that child.
What constitutes “the Act”, “destroyed”, “immediate family member”, “major damage”, “seriously injured” and “principle place of residence” is defined in section 4 of Determination (No. 1).
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. 1) was required as a matter of urgency.
Overview
The Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 3) was enacted to provide immediate financial assistance to Australians adversely affected by a major disaster. The Social Security Act 1991 serves as the foundational legislation, with Section 1061K detailing the criteria for qualification for the Australian Government Disaster Recovery Payment (AGDRP). This one-off payment aims to offer immediate relief to individuals who have been significantly impacted by disasters warranting a Commonwealth Government response. The Minister, empowered by Section 36 of the Act, can declare an event as a major disaster if it significantly affects individuals, thus necessitating a government response. The determination, not subject to disallowance, was enacted without formal consultation due to the urgent need for financial aid following the heavy rainfall, storm damage, and associated flooding in Queensland from November 2010 to January 2011. This legislative instrument sets out the specific circumstances under which a person is considered adversely affected by the disaster, ensuring that those in need receive timely support.
Scope and Application
The Australian Government Disaster Recovery Payment (AGDRP) is established under Section 1061K of the Social Security Act 1991, providing an immediate, one-off payment to individuals adversely affected by a major disaster. The Act applies to Australian citizens or permanent residents who are directly impacted by a disaster of significant magnitude, as determined by the Minister under Section 36. This determination is made if the Minister believes a Commonwealth Government response is necessary due to the substantial impact of the disaster on individuals. The Minister can specify in writing the circumstances in which a person is considered adversely affected by such a disaster, as outlined in Subsection 1061L(2) of the Act. In response to the heavy rainfall, storm damage, and associated flooding in Queensland from November 2010 to January 2011, the Minister made a declaration identifying these events as major disasters. This was formalised through the Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1), which specifies the criteria for being adversely affected, including being seriously injured, being an immediate family member of a deceased Australian, or having one's principal place of residence destroyed or severely damaged. This determination, being a legislative instrument, is not subject to disallowance by the Parliament, and it was enacted without formal consultation due to the urgency of the situation.
Key Provisions
The Australian Government Disaster Recovery Payment (AGDRP) is governed primarily by Section 1061K of the Social Security Act 1991 (the Act), which outlines the qualification criteria for the payment. One key requirement is that a person must be "adversely affected by a major disaster" to be eligible. This criterion is further detailed in subsection 1061L(1), which defines that a person is considered adversely affected if they are affected by the disaster in a way determined by the Minister. Subsection 1061L(2) then allows the Minister to specify, in writing, the circumstances in which persons are to be deemed adversely affected by a disaster. For instance, the Minister can declare specific conditions under which a person qualifies as adversely affected.
Under the Act, the Minister has the authority to declare an event as a "major disaster" if they are satisfied that the event is a disaster with a significant impact on individuals that necessitates a Commonwealth Government response. This authority is granted by Section 36 of the Act. In practice, the Minister has already made such a declaration concerning the heavy rainfall, storm damage, and associated flooding in Queensland that occurred from November 2010 to January 2011. The Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 1) (Determination (No. 1)) was subsequently issued to give effect to this declaration, specifying the circumstances in which a person can be regarded as adversely affected by the floods.
Determination (No. 1) commences on the date it is registered, as stated in Section 2. Definitions relevant to the determination are provided in Section 3, which includes terms such as "destroyed," "immediate family member," "major damage," "seriously injured," and "principal place of residence." Section 4 specifies that for the purposes of subsection 1061L(2), a person is adversely affected if they meet any of the circumstances outlined in Schedule 2, which relates to the major disaster mentioned in Schedule 1. This includes being seriously injured, being an immediate family member of an Australian who is killed, or having one's principal place of residence destroyed or significantly damaged, among other specified conditions.
In terms of obligations and requirements, entities and individuals governed by the Act must meet the criteria outlined in the determination to qualify for the AGDRP. This includes providing evidence that they have been adversely affected by the disaster in one of the specified ways. Failure to comply with these requirements or providing false information can lead to civil and criminal consequences. The determination itself, being a legislative instrument, is not subject to disallowance by Parliament, as stated in subsection 1061L(3) of the Act, which excludes section 42 of the Legislative Instruments Act 2003 from applying to such determinations. Formal consultation was not undertaken due to the urgency required in issuing the determination.