EXPLANATORY STATEMENT

Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 5)

Social Security Act 1991

Issued by authority of the Minister for Emergency Management

1. The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to a person adversely affected by a major disaster.
2. 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”.
3. 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.
4. 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.
5. Subsection 36(1) 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.
6. The Minister has made a determination under subsection 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 Bayside, Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Cumberland, Dungog, Fairfield, Georges River, Hawkesbury, Hornsby, Kempsey, Kiama, Lake Macquarie, Lithgow, Liverpool, Maitland, Mid-Coast, Muswellbrook, Nambucca, Narromine, Newcastle, Northern Beaches, Oberon, Parramatta, Penrith, Port Macquarie Hastings, Port Stephens, Randwick, Shellharbour, Shoalhaven, Singleton, Strathfield, Sutherland, The Hills, Upper Lachlan, Warren, Wingecarribee, Wollondilly and Wollongong.
7. The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – July 2022) Determination 2022 (No. 5)  (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.
8. Section 1 of the Determination specifies the name of the determination. Subsection 1(2) provides that the Determination may also be cited as LIN 22/086. This is an internal reference for the Department of Home Affairs which provides legal and legislative services to the National Emergency Management Agency.
9. 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.
10. Section 3 of the Determination provides the definitions relevant to the determination.
11. 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 Bayside, Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Central Coast, Cessnock, Cumberland, Dungog, Fairfield, Georges River, Hawkesbury, Hornsby, Kempsey, Kiama, Lake Macquarie, Lithgow, Liverpool, Maitland, Mid-Coast, Muswellbrook, Nambucca, Narromine, Newcastle, Northern Beaches, Oberon, Parramatta, Penrith, Port Macquarie Hastings, Port Stephens, Randwick, Shellharbour, Shoalhaven, Singleton, Strathfield, Sutherland, The Hills, Upper Lachlan, Warren, Wingecarribee, Wollondilly and Wollongong.
12. 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:
    1. the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
    2. the person is an immediate family member of an Australian citizen or resident who is killed as a direct result of the disaster (paragraph 4(2)(b)); or
    3. 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
    4. a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
    5. the person is a principal carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).
13. 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.
14. Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – New South Wales floods – July 2022) Determination 2022 (No.4) is repealed, as enabled under section 33(3) of the Acts Interpretation Act 1901.
15. 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.4) continues to have effect.
16. 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.
17. Formal consultation has not been undertaken as the Determination was required to commence as a matter of urgency.