EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2020 (No. 2)
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 bushfires occurring in August, September, October, November and December 2019 and January 2020, in New South Wales, affecting the local government areas of Armidale, Bega Valley, Blue Mountains, Central Coast, Cessnock, Clarence Valley, Coffs Harbour, Eurobodalla, Glen Innes Severn, Hawkesbury, Kempsey, Kyogle, Lismore, Lithgow, Mid Coast, Mid-Western, Nambucca, Port Macquarie-Hastings, Queanbeyan-Palerang, Richmond Valley, Shoalhaven, Singleton, Snowy Valleys, Tenterfield, Walcha, Wingecarribee and Wollondilly.
- The Social Security (Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2020 (No. 2) (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 20/022. 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 bushfires occurring in August, September, October, November and December 2019, and January 2020, in New South Wales, affecting the local government areas of Armidale, Blue Mountains, Bega Valley, Central Coast, Cessnock, Clarence Valley, Coffs Harbour, Eurobodalla, Glen Innes Severn, Hawkesbury, Kempsey, Kyogle, Lismore, Lithgow, Mid Coast, Mid-Western, Nambucca, Port Macquarie-Hastings,
Queanbeyan-Palerang, Richmond Valley, Shoalhaven, Singleton, Snowy Valleys, Tenterfield, Walcha, Wingecarribee and Wollondilly. - 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 2020 (No.1) is repealed, according to section 33(3) of the Acts Interpretation Act 1901.
- Section 6 provides that despite the operation of section 5, anything done under the Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2020 (No.1) continues to be in effect.
- The terms ‘Act’, ‘destroyed’, ‘immediate family member’, ‘major damage’ and ‘seriously injured’ are defined in section 3 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 Bushfires) Determination 2020 (No. 2) was enacted to provide immediate relief to individuals adversely affected by the bushfires in New South Wales during the period of August 2019 to January 2020. This Determination was issued under the authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, in accordance with the Social Security Act 1991. The primary objective of this legislation is to specify the circumstances under which individuals can be considered adversely affected by the major disaster, thereby qualifying them for the Australian Government Disaster Recovery Payment. The determination outlines specific criteria such as serious injury, loss of life within immediate family, destruction or significant damage to one's principal place of residence, and carer responsibilities for affected individuals.
Formally, the Determination repeals the earlier Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2020 (No.1) but ensures that any actions taken under the previous Determination remain valid. The urgency of the situation necessitated the immediate commencement of this Determination, bypassing the usual disallowance procedures as stipulated in the Legislation Act 2003. Despite the lack of formal consultation, the Determination was designed to expedite support to those in need without delay.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2020 (No. 2) applies to individuals who have been adversely affected by the bushfires in specific local government areas of New South Wales during the period from August 2019 to January 2020. The Act qualifies individuals as adversely affected if they have been seriously injured as a direct result of the disaster, are immediate family members of those killed as a direct result of the disaster, have had their principal place of residence destroyed or majorly damaged due to the disaster, or are principal carers of children who meet the aforementioned criteria. The Determination is specifically tailored to the circumstances of the named bushfires and does not apply to other disasters or bushfires outside the specified timeframe and geographic boundaries. The Act’s provisions are empowered by the Social Security Act 1991, which allows the Minister to determine the criteria for adverse effects and the classification of a disaster as ‘major’ based on its significant impact on individuals. Notably, this Determination is a legislative instrument that is not subject to disallowance, reflecting the urgency of providing relief in the aftermath of the disaster.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment – New South Wales Bushfires) Determination 2020 (No. 2) sets out the specific circumstances under which a person may qualify for the Australian Government Disaster Recovery Payment (AGDRP) due to the major disaster of bushfires in New South Wales during the specified months of 2019 and 2020. Under section 1061K of the Social Security Act 1991, a person must be adversely affected by the disaster to qualify for the AGDRP. The Determination specifies that a person is considered adversely affected if they are seriously injured, are an immediate family member of someone killed, their principal place of residence was destroyed or suffered major damage, or they are a principal carer for someone affected under these categories (subsection 4(2) of the Determination). The Determination applies to the bushfires occurring in certain local government areas in New South Wales during the specified period, as outlined in section 36 of the Act.
The Act imposes several obligations on both the government and individuals. The government must determine whether an event qualifies as a major disaster and specify the circumstances under which individuals are adversely affected. For individuals, the primary obligation is to ensure they meet the qualification criteria as defined by the Determination and to provide any necessary documentation to substantiate their claim for the AGDRP. This may include evidence of injury, death certificates for immediate family members, or documentation of property damage.
Breach of the provisions set out in the Determination may have serious consequences. Although the Explanatory Statement does not explicitly detail specific offences or penalties, under the general legislative framework, non-compliance or fraudulent claims could potentially lead to civil or criminal penalties. The Social Security Act 1991 provides for penalties, including fines and imprisonment, for offences related to fraudulent claims or misrepresentation of facts. The maximum penalties can vary depending on the nature and severity of the offence but may include substantial fines and imprisonment terms. It is crucial for claimants to adhere strictly to the requirements and provide accurate information to avoid any legal repercussions.