EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—New South Wales floods) Determination 2021 (No. 2)
Social Security Act 1991
Issued by authority of the Minister for Agriculture, Drought, 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 the heavy rainfall and associated flooding that commenced on 10 March 2021 in New South Wales affecting the local government areas of Armidale, Bellingen, Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Clarence Valley, Coffs Harbour, Cumberland, Dungog, Fairfield, Hawkesbury, Hornsby, Inner West, Kempsey, Ku-ring-gai, Lake Macquarie, Liverpool, Maitland, Mid-Coast, Nambucca Valley, Newcastle, Northern Beaches, Parramatta, Penrith, Port Macquarie-Hastings, Port Stephens, Sutherland, Tenterfield, The Hills and Wollondilly.
- The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods) Determination 2021 (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.
- 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 heavy rainfall and associated flooding that commenced on 10 March 2021 in New South Wales affecting the local government areas of Armidale, Bellingen, Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Clarence Valley, Coffs Harbour, Cumberland, Dungog, Fairfield, Hawkesbury, Hornsby, Inner West, Kempsey, Ku-ring-gai, Lake Macquarie, Liverpool, Maitland, Mid-Coast, Nambucca Valley, Newcastle, Northern Beaches, Parramatta, Penrith, Port Macquarie-Hastings, Port Stephens, Sutherland, Tenterfield, The Hills 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
- a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
- the person is a principal carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).
- The terms ‘destroyed’, ‘immediate family member’, ‘major asset or assets’, ‘major damage’ and ‘seriously injured’ are defined in subsection 3(1) of Determination. Subsection 3(2) defines what a ‘principal place of residence’ is.
- 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 floods) Determination 2021 (No. 2) was introduced to provide immediate financial support to individuals adversely affected by the heavy rainfall and associated flooding that commenced on 10 March 2021 in New South Wales. This legislation, enacted by the Minister for Agriculture, Drought, and Emergency Management, aligns with the Social Security Act 1991, which empowers the Minister to declare a major disaster and establish the criteria for eligibility for the Australian Government Disaster Recovery Payment (AGDRP). The primary objective of this determination is to ensure that those who have suffered severe impacts from the disaster, such as serious injury, loss of life, or significant property damage, receive timely financial assistance. This determination was made in response to the urgent need to support affected individuals and is not subject to disallowance by Parliament, reflecting the necessity for swift implementation in disaster recovery efforts.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods) Determination 2021 (No. 2) applies to individuals adversely affected by the heavy rainfall and associated flooding that commenced on 10 March 2021 in specific local government areas of New South Wales. The determination clarifies the circumstances under which a person is considered to be adversely affected by this major disaster for the purposes of receiving the Australian Government Disaster Recovery Payment (AGDRP). This includes instances where a person is seriously injured, an immediate family member is killed, their principal place of residence is destroyed or significantly damaged, or a major asset is destroyed or significantly damaged. The Determination also considers individuals who are principal carers of affected children. The geographic scope is confined to the local government areas explicitly mentioned in the determination, and the application of the Act is not subject to disallowance by Parliament, reflecting the urgency of the disaster response.
The determination provides the legal framework for the AGDRP by detailing the specific circumstances that qualify individuals for the payment, which is a legislative instrument under the Social Security Act 1991. The definitions provided within the determination, such as 'destroyed', 'immediate family member', 'major asset', 'major damage', 'seriously injured', and 'principal place of residence', further refine the eligibility criteria. This Determination is designed to offer timely and effective support to those impacted by the disaster, ensuring that the AGDRP is administered in a manner that addresses the urgent needs of affected individuals without the procedural delays associated with parliamentary disallowance.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment—New South Wales floods) Determination 2021 (No. 2) are sections 4(1) and 4(2) (subsections 4(1) and 4(2)). Section 4(1) specifies the major disaster for which the Determination applies, namely the heavy rainfall and associated flooding that commenced on 10 March 2021 in New South Wales, affecting specific local government areas. Section 4(2) sets out the circumstances in which a person will be taken to be adversely affected by this disaster, including being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or damaged, or having a major asset destroyed or damaged. Other specified circumstances include being a principal carer of a child affected by the disaster in any of the ways described.
The obligations and requirements imposed by the Determination on the parties it governs are primarily concerned with establishing eligibility for the Australian Government Disaster Recovery Payment (AGDRP). For a person to be eligible, they must meet one of the specified criteria of being adversely affected by the disaster, as defined in section 4(2). The Determination outlines specific situations that constitute being adversely affected, such as serious injury, death of an immediate family member, destruction or major damage to a principal place of residence, or damage to major assets. These criteria must be met to qualify for the payment. Additionally, the terms used in the criteria, such as 'destroyed', 'immediate family member', 'major asset', 'major damage', and 'seriously injured', are defined in subsection 3(1) to ensure clarity and consistency in application.
Any breach of the obligations set out in the Determination may lead to civil or criminal consequences, although the Determination itself does not explicitly detail these consequences. Given that the Determination is a legislative instrument under the Social Security Act 1991 and not subject to disallowance, it carries significant legal weight. Failure to comply with the eligibility criteria or misrepresentation of facts to obtain the AGDRP could potentially result in legal action for fraud or misrepresentation, which could lead to civil penalties. Additionally, if the breach involves deliberate intent to deceive or cause harm, it could also result in criminal charges. However, the exact penalties would depend on the nature and severity of the breach, and would be determined under relevant criminal and civil laws.
The Determination also specifies that it is not subject to disallowance by Parliament, as per subsection 1061L(3) of the Social Security Act 1991. This means that while formal consultation may not have been undertaken due to the urgency of the disaster, the Determination stands as a legally binding instrument. The urgency and necessity of the Determination reflect the immediate need to provide financial support to those affected by the disaster, underscoring the importance of its provisions in ensuring timely assistance.