EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 1)
Social Security Act 1991
Issued by authority of the Minister for Emergency Management and National Recovery and Resilience
- 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 severe weather, heavy rainfall and associated flooding that commenced on 27 June 2022 in New South Wales affecting the local government areas of Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Fairfield, Georges River, Hawkesbury, Hornsby, Kiama, Lithgow, Liverpool, Northern Beaches, Penrith, Shellharbour, Shoalhaven, Sutherland, The Hills, Wingecarribee, Wollondilly and Wollongong.
- The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 1) (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 severe weather, heavy rainfall and associated flooding that commenced on 27 June 2022 in New South Wales affecting the local government areas of Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Fairfield, Georges River, Hawkesbury, Hornsby, Kiama, Lithgow, Liverpool, Northern Beaches, Penrith, Shellharbour, Shoalhaven, Sutherland, The Hills, Wingecarribee, Wollondilly and Wollongong.
- 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 – July 2022) Determination 2022 (No. 1) was introduced to address the urgent need for financial assistance to those affected by the severe weather, heavy rainfall and associated flooding that occurred in New South Wales in June and July 2022. This determination, enacted under the authority of the Minister for Emergency Management and National Recovery and Resilience, aims to provide an immediate, one-off payment to Australians adversely affected by this major disaster. The legislation identifies specific circumstances in which individuals will be considered adversely affected, such as serious injury, loss of life in the family, destruction or major damage to a principal place of residence or major assets, and being a principal carer of an affected child. This determination ensures that the Australian Government Disaster Recovery Payment is accessible to those most in need, reflecting the significant impact of the disaster on the affected communities.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 1) applies to individuals who have been adversely affected by the severe weather, heavy rainfall and associated flooding that commenced on 27 June 2022 in New South Wales, specifically within the local government areas of Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Fairfield, Georges River, Hawkesbury, Hornsby, Kiama, Lithgow, Liverpool, Northern Beaches, Penrith, Shellharbour, Shoalhaven, Sutherland, The Hills, Wingecarribee, Wollondilly, and Wollongong. The Determination specifies the criteria for being adversely affected, including being seriously injured as a direct result of the disaster, being an immediate family member of an Australian killed as a result of the disaster, having a principal place of residence destroyed or suffering major damage, having major assets destroyed or damaged, or being a principal carer of a child affected by any of the aforementioned circumstances. The Determination provides clarity on the qualifying conditions for receiving the Australian Government Disaster Recovery Payment under the Social Security Act 1991 and is a legislative instrument that is not subject to disallowance by the Parliament. It does not require formal consultation as it was necessary to commence urgently in response to the disaster.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 1) are sections 4(1) and 4(2), which specify the circumstances under which a person is considered to be adversely affected by the major disaster of severe weather, heavy rainfall, and associated flooding in New South Wales that began on 27 June 2022. Section 4(1) identifies the disaster and the affected local government areas, while section 4(2) outlines the specific conditions that qualify a person for the Australian Government Disaster Recovery Payment (AGDRP). These conditions include being seriously injured, being an immediate family member of someone killed, having a destroyed or severely damaged principal place of residence, having major assets destroyed or damaged, or being a principal carer of a child who meets any of these criteria.
The obligations and requirements imposed by this Determination on the parties it governs primarily involve ensuring that individuals who meet the specified criteria are able to access the AGDRP. For example, affected individuals must provide evidence of their status as defined by the Determination to be eligible for the payment. The Minister, as empowered by the Social Security Act 1991, must also ensure that the determination is applied correctly and fairly to all eligible claimants. This includes making timely and accurate assessments of the claims submitted by individuals who have been adversely affected by the disaster.
In terms of consequences for non-compliance or breach of the requirements set forth in the Determination, it is important to note that the Act does not explicitly outline specific offences, penalties, or consequences for failing to comply with the provisions of the Determination. However, any breaches of the conditions or fraudulent claims could potentially lead to civil or criminal penalties under other sections of the Social Security Act 1991. The Minister’s authority to determine the circumstances under which a person is adversely affected by a major disaster is intended to streamline the process of providing timely and appropriate relief to those in need, and any misuse of the scheme could be subject to legal scrutiny and enforcement actions.