EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment – New South Wales) Determination 2019 (No. 17)
Social Security Act 1991
Issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management
- 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 government response is required.
- The Minister has made a determination under section 36(1) of the Act that applies only to the bushfires occurring in August, September, October, November and December 2019 in New South Wales, affecting the local government areas of Armidale, Cessnock, Clarence Valley, Coffs Harbour, Eurobodalla, Glen Innes Severn, Hawkesbury, Kempsey, Lismore, Mid-Coast, Nambucca, Port Macquarie-Hastings, Queanbeyan-Palerang, Richmond Valley, Shoalhaven, Tenterfield and Walcha.
- The Social Security (Australian Government Disaster Recovery Payment—New South Wales) Determination 2019 (No. 17) (the Determination) gives effect to the disaster referred to above and sets out the circumstances in which a person is to be ‘adversely affected’ by the major disaster.
- Section 1 of the Determination specifies the name of the determination. Subsection 1(2) provides that the Determination may also be cited as LIN 19/322. This is an internal reference for the Department of Home Affairs.
- Section 2 provides that the Determination commences on the day it is signed. For the purposes of section 12 of the Legislation Act 2003, the Determination may commence before it is registered as it will not disadvantage any persons adversely affected by the disaster.
- Section 3 of Determination contains definitions relevant to the determination.
- Subsection 4(1) of the Determination provides that the Determination applies to the major disaster being the bushfires occurring in August, September, October, November and December 2019 in New South Wales, affecting the local government areas of Armidale, Cessnock, Clarence Valley, Coffs Harbour, Eurobodalla, Glen Innes Severn, Hawkesbury, Kempsey, Lismore, Mid-Coast, Nambucca, Port Macquarie-Hastings, Queanbeyan-Palerang, Richmond Valley, Shoalhaven, Tenterfield and Walcha.
- Subsection 4(2) of the Determination provides that the circumstances in which a person will be taken to be adversely affected by the major disaster described in subsection 4(1) are where:
- the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
- the person is an immediate family member of an Australian who is killed as a direct result of the disaster (paragraph 4(2)(b)); or
- the person’s principal place of residence has been destroyed or has major damage as a direct result of the disaster (paragraph 4(2)(c)); or
- the person is a principal carer of a child to whom paragraphs 4(2)(a), (b) or (c) apply (paragraph 4(2)(d)).
- Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2019 (No.12) is repealed, according to section 33(3) of the Acts Interpretation Act 1901.
- Section 6 provides that anything done under the Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2019 (No.12) continues to be in effect.
- The terms ‘Act’, ‘destroyed’, ‘immediate family member’, ‘major damage’ and ‘seriously injured’ are defined in section 4 of Determination.
- Subsection 1061L(3) of the Act provides that a determination under section 1061L is a legislative instrument. However, this instrument is not subject to disallowance by the Parliament as subsection 1061L(3) of the Act provides that section 42 of the Legislation Act 2003 does not apply to the Determination.
- Formal consultation has not been undertaken as the Determination was required to commence as a matter of urgency.
Overview
The Social Security (Australian Government Disaster Recovery Payment – New South Wales) Determination 2019 (No. 17) was enacted to provide a legislative framework for the distribution of the Australian Government Disaster Recovery Payment (AGDRP) in response to the major disaster of bushfires that occurred in New South Wales during August to December 2019. This Determination is a response to the urgent need for financial assistance to those adversely affected by the disaster, ensuring that support is provided promptly and efficiently. It was issued by the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management under the authority of the Social Security Act 1991. The primary policy objective of this Determination is to facilitate the timely provision of the AGDRP to those who have been significantly impacted by the bushfires, as outlined in the Act.
The Determination specifies that to qualify for the AGDRP, a person must have been seriously injured, be an immediate family member of someone killed, have their principal place of residence destroyed or severely damaged, or be a principal carer for someone affected by the disaster. This legislation aims to ensure that those who have suffered the most are able to access the necessary support without delay, while also providing clarity on the specific circumstances that qualify an individual for the payment. The Determination does not undergo disallowance by the Parliament and was enacted with urgency, bypassing formal consultation to address the immediate needs arising from the disaster.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment – New South Wales) Determination 2019 (No. 17) applies to individuals adversely affected by the bushfires occurring in specific local government areas of New South Wales during August, September, October, November, and December 2019. The determination outlines the circumstances under which a person can be considered adversely affected by these bushfires, including being seriously injured as a direct result of the disaster, being an immediate family member of an Australian killed in the disaster, having a principal place of residence destroyed or significantly damaged, or being a principal carer of a child who meets the criteria in the preceding paragraphs. This legislation is an integral part of the Social Security Act 1991, specifically designed to provide the Australian Government Disaster Recovery Payment to those meeting the outlined criteria. The determination does not extend to any other disasters or geographic areas outside of those specified bushfires in New South Wales. While the Act empowers the Minister to determine other major disasters and the related circumstances, this particular determination is specific to the aforementioned bushfires and is not subject to disallowance by Parliament.
Key Provisions
The primary operative sections of the Social Security (Australian Government Disaster Recovery Payment – New South Wales) Determination 2019 (No. 17) (the Determination) are sections 2, 3, and 4. Section 2 of the Determination specifies that it commences on the day it is signed, and section 3 contains definitions relevant to the determination, including terms such as 'destroyed', 'immediate family member', 'major damage', and 'seriously injured'. Section 4 outlines the specific circumstances in which a person will be considered 'adversely affected' by the major disaster. These circumstances include being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or damaged, or being a principal carer of a child affected by the disaster. The Determination applies to the bushfires that occurred in New South Wales from August to December 2019, affecting specific local government areas.
The Determination imposes several obligations and requirements on the parties it governs. It mandates that individuals affected by the bushfires must meet the specific criteria outlined in section 4 to qualify for the Australian Government Disaster Recovery Payment. These criteria include being seriously injured, an immediate family member of a deceased individual, having a residence destroyed or damaged, or being a principal carer of an affected child. Additionally, the Determination requires that affected individuals provide necessary documentation and evidence to substantiate their claims for the payment. The Determination also includes a repeal of the previous Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2019 (No. 12), ensuring that the new criteria and conditions are applied uniformly across the affected areas.
The Determination does not explicitly outline offences or penalties for breach; however, it operates under the broader framework of the Social Security Act 1991. Any breach of the requirements or fraudulent claims could potentially lead to civil or criminal consequences under the Act. The Act may impose penalties for providing false or misleading information to obtain benefits, which can include fines and imprisonment. The exact penalties would depend on the severity of the offence and the discretion of the court.
The Determination aims to provide swift and effective relief to those adversely affected by the bushfires in New South Wales. By setting clear criteria and ensuring the payment process is straightforward, the Determination seeks to support those in need during a time of significant distress and recovery. The urgency in creating this legislation underscores the importance of timely assistance to those affected by major disasters.