Overview

The Social Security (Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 11) was enacted to provide an immediate, one-off payment to individuals adversely affected by the major disaster of the bushfires in New South Wales in August, September, October and November 2019. The determination was introduced to address the urgent need for financial support for those impacted by these bushfires, which significantly affected local government areas including Armidale, Clarence Valley, Cessnock, and others. This legislation is an instrument under section 1061K of the Social Security Act 1991, empowering the Minister to specify the circumstances in which a person is considered to be adversely affected by the disaster. This determination ensures that eligible individuals receive the necessary support in a timely manner, thereby mitigating the immediate financial impact of the disaster on affected persons. The determination was issued under the authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, aligning with the policy objective of providing swift disaster recovery payments. While the determination does not undergo disallowance by the Parliament as per subsection 1061L(3) of the Act, its urgency necessitated its enactment without formal consultation. The determination revokes the previous Social Security (LIN 10/250: Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2019 (No. 9), ensuring that the most current criteria and definitions are applied to the affected individuals.

Scope and Application

The Social Security (Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 11) applies specifically to the major disaster constituted by the bushfires that occurred in August, September, October, and November 2019 in New South Wales, affecting the local government areas of Armidale, Clarence Valley, Cessnock, Glen Innes Severn, Hawkesbury, Lismore, Kempsey, Mid Coast, Nambucca, Port Macquarie-Hastings, Richmond Valley, Tenterfield, and Walcha. The Determination sets out the criteria under which a person can be deemed to be adversely affected by this major disaster, which is essential for eligibility under the Australian Government Disaster Recovery Payment (AGDRP) as specified in section 1061K of the Social Security Act 1991. A person will be considered adversely affected if they are seriously injured, if they are an immediate family member of an Australian killed as a result of the disaster, if their principal place of residence was destroyed or suffered major damage, or if they are a principal carer of a child who meets any of the previous criteria. The Determination revokes a previous determination (Social Security (LIN 10/250: Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2019 (No. 9)) and is effective from the date of its signing. Importantly, the Determination is not subject to disallowance by the Parliament, as per subsection 1061L(3) of the Act, and while formal consultation was not undertaken due to the urgency required, it provides clear guidelines for the application of the AGDRP in this context.

Key Provisions

The main operative sections of the Social Security (Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 11) (the Determination) include section 1, which specifies the name of the determination, and section 5, which outlines the circumstances under which a person is considered adversely affected by the bushfires in New South Wales. Section 1(1) identifies the determination as the Social Security (Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 11), while section 1(2) provides an alternative citation, LIN 19/299, which is used internally by the Department of Home Affairs. Section 5(1) clarifies that the determination applies to the bushfires occurring in specific local government areas from August to November 2019. Section 5(2) then enumerates the specific circumstances that classify a person as adversely affected by the disaster, such as being seriously injured, being an immediate family member of someone killed, having one's residence destroyed or significantly damaged, or being a principal carer for a child meeting any of these criteria. The obligations and requirements imposed by the Determination on the parties governed by it are primarily centred on the eligibility criteria for the Australian Government Disaster Recovery Payment (AGDRP). The Determination mandates that individuals must meet one of the specified criteria to be considered adversely affected by the bushfires and thus qualify for the AGDRP. The criteria include being seriously injured, being an immediate family member of a deceased individual, having a residence destroyed or significantly damaged, or being a principal carer for a child affected by the disaster. These obligations are designed to ensure that the payment is directed towards those who have suffered tangible and significant impacts from the disaster, thereby facilitating a targeted and efficient government response to the affected population. The Act also outlines potential offences, penalties, and civil or criminal consequences for breaches related to the AGDRP. While the Determination itself does not explicitly state penalties, the underlying Social Security Act 1991 (the Act) provides a framework for handling fraudulent claims or misrepresentations. Under the Act, knowingly providing false information to obtain the AGDRP can result in penalties. The maximum penalties for such offences can include fines and imprisonment, reflecting the seriousness of fraudulent claims in the context of disaster relief. This underscores the importance of accurate and truthful information in the application process to maintain the integrity of the relief efforts. The Determination, as a legislative instrument, is not subject to disallowance by the Parliament, as per subsection 1061L(3) of the Act, which specifies that section 42 of the Legislation Act 2003 does not apply. This exemption from disallowance recognises the urgent need for such legislation in response to the disaster, allowing for swift implementation without the delay of parliamentary scrutiny. This streamlined process ensures that affected individuals can receive timely support, highlighting the determination's role in providing immediate relief to those impacted by the bushfires.