EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 3)
Social Security Act 1991
Issued by authority of the Minister for 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 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, Bayside, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Cumberland, Dungog, Fairfield, Georges River, Hawkesbury, Hornsby, Kiama, Lake Macquarie, Lithgow, Liverpool, Maitland, Mid-Coast, Muswellbrook, Nambucca, Newcastle, Northern Beaches, Penrith, Port Stephens, Randwick, Shellharbour, Shoalhaven, Singleton, Sutherland, The Hills, Upper Lachlan, Warren, Wingecarribee, Wollondilly and Wollongong.
- The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 3) (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, Bayside, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Cumberland, Dungog, Fairfield, Georges River, Hawkesbury, Hornsby, Kiama, Lake Macquarie, Lithgow, Liverpool, Maitland, Mid-Coast, Muswellbrook, Nambucca, Newcastle, Northern Beaches, Penrith, Port Stephens, Randwick, Shellharbour, Shoalhaven, Singleton, Sutherland, The Hills, Upper Lachlan, Warren, 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.
- Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – New South Wales floods – July 2022) Determination 2022 (No.2) is repealed, as enabled under 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 floods – July 2022) Determination 2022 (No.2) continues to be in effect.
- 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. 3) was enacted in response to the severe weather, heavy rainfall, and associated flooding that began in New South Wales on 27 June 2022, impacting numerous local government areas. This legislation aims to provide immediate financial assistance to those adversely affected by this major disaster. It was issued by authority of the Minister for Emergency Management under the Social Security Act 1991, with the primary objective of ensuring that eligible individuals receive the Australian Government Disaster Recovery Payment. The determination sets out specific circumstances under which a person can be considered adversely affected by the disaster, such as being seriously injured, being a family member of someone killed, or having their residence or major assets damaged.
This legislation was introduced to address the urgent need for financial support for individuals impacted by the disaster, ensuring that they receive timely assistance to help with their immediate recovery needs. The determination outlines the criteria for eligibility and provides clarity on how the payment will be administered, reflecting the policy objective of providing swift and effective relief to those most in need.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 3) 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 designated local government areas. This determination outlines the criteria for being considered adversely affected, including being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or significantly damaged, or having major assets destroyed or significantly damaged as a result of the disaster. It also applies to principal carers of children who meet these criteria. The Determination is integral to the operation of the Social Security Act 1991, providing a legislative basis for the Australian Government Disaster Recovery Payment in response to this disaster. It is applicable to the Commonwealth jurisdiction and does not require disallowance by Parliament. Although formal consultation was not undertaken, the urgency of the situation justified immediate implementation to ensure timely assistance to affected individuals.
Key Provisions
The key operative sections of the Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 3) are Sections 1 to 6. Section 1 specifies the name of the determination, while Section 2 details that the Determination commences on the day it is signed, with the flexibility to begin before registration under Section 12 of the Legislation Act 2003, ensuring no disadvantage to those adversely affected by the disaster. Section 3 provides essential definitions relevant to the determination, such as 'destroyed', 'immediate family member','major asset or assets', 'major damage', 'seriously injured', and 'principal place of residence'. Section 4 specifies the application of the Determination to the specified major disaster and the criteria for being adversely affected by it, including serious injury, death of an Australian, destruction or major damage to a principal place of residence or major assets, or being a principal carer of a child affected under these circumstances. Section 5 repeals the previous Determination (No. 2), while Section 6 ensures that actions taken under the repealed Determination remain effective.
The Act imposes several obligations and requirements on the parties it governs. Firstly, the Minister for Emergency Management must determine whether an event qualifies as a 'major disaster' under Section 36 of the Social Security Act 1991. Once a disaster is declared, the Minister must specify the circumstances under which individuals are considered adversely affected by the disaster, as outlined in Section 1061L of the Act. These obligations ensure that the criteria for receiving the Australian Government Disaster Recovery Payment are clearly defined and applied consistently. The Act also mandates that the Determination, which outlines these criteria, be implemented as a legislative instrument, though it is not subject to disallowance by Parliament, as per Section 1061L(3) of the Act.
The Act delineates specific offences and penalties for breaches, although the Determination itself does not explicitly state penalties for non-compliance. However, general provisions under the Social Security Act 1991 may apply, where fraudulent claims or misrepresentation of facts to receive benefits could lead to civil or criminal penalties. Such offences might include fines or imprisonment, depending on the severity of the breach. The exact penalties would be in accordance with the broader legislative framework governing social security benefits in Australia.
In summary, the Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 3) provides a clear framework for determining eligibility for disaster recovery payments in the wake of the specified major disaster in New South Wales. It outlines the criteria for adverse impact, defines key terms, and repeals the previous Determination while maintaining the effectiveness of actions taken under it. The obligations on the Minister and other governing parties ensure the timely and accurate application of the criteria, while potential penalties for non-compliance are governed by broader social security laws.