Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 4)
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 a person 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 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 for the disaster.
- Subsection 1061L(2) of the Act provides that the Minister may determine in writing, for a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster.
- 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.
- The Minister has made a determination under subsection 36(1) of the Act that applies only to the storms and floods that commenced on 14 September 2022 and continued in October 2022 and November 2022 in New South Wales affecting the local government areas of Cabonne, Cootamundra-Gundagai, Dubbo, Forbes, Gunnedah, Liverpool Plains, Moree Plains, Murray River, Narrabri, Snowy Valleys, Upper Lachlan, Wagga Wagga and Walgett.
- The Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 4) (the Determination) sets out the circumstances in which a person is to be ‘adversely affected’ by the major disaster.
- Section 1 specifies the name of the Determination.
- Section 2 provides that the Determination commences on the day it is signed. For 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 provides definitions relevant to the Determination, including destroyed, immediate family member, major asset or assets, major damage and seriously injured and principal place of residence.
- Subsection 4(1) provides that the Determination applies to the major disaster being the storms and floods that commenced on 14 September 2022 and continued in October 2022 and November 2022 in New South Wales affecting the local government areas of Cabonne, Cootamundra-Gundagai, Dubbo, Forbes, Gunnedah, Liverpool Plains, Moree Plains, Murray River, Narrabri, Snowy Valleys, Upper Lachlan, Wagga Wagga and Walgett.
- Subsection 4(2) provides that the circumstances in which a person is taken to be adversely affected by the major disaster described in subsection 4(1) are if:
(a) the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
(b) 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
(c) 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
(d) a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
(e) 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. Section 5 of the Determination provides that Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 3) is repealed, as enabled under section 33(3) of the Acts Interpretation Act 1901.
14. 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 – September-October 2022) Determination 2022 (No. 3) continues to have effect.
15. Subsection 1061L(3) of the Act provides that a determination under section 1061L is a legislative instrument. However, the Determination 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 it.
16. 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 – September-October 2022) Determination 2022 (No. 4) was enacted to address the urgent need for financial support for individuals adversely affected by the severe storms and floods that impacted New South Wales from September to November 2022. This legislation, issued by authority of the Minister for Emergency Management, operates under the Social Security Act 1991 to provide a one-off payment to those significantly impacted by the disaster. The policy objective is to offer immediate relief to those who have suffered serious injuries, lost immediate family members, had their principal place of residence destroyed or severely damaged, or experienced significant damage to major assets as a direct result of the disaster. This determination sets forth the specific criteria that deem a person adversely affected, ensuring that those in genuine need receive the necessary assistance swiftly.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 4) applies specifically to individuals who are adversely affected by the major disaster declared by the Minister for Emergency Management, which encompasses the storms and floods in New South Wales from 14 September 2022 through to November 2022. The affected areas include the local government areas of Cabonne, Cootamundra-Gundagai, Dubbo, Forbes, Gunnedah, Liverpool Plains, Moree Plains, Murray River, Narrabri, Snowy Valleys, Upper Lachlan, Wagga Wagga, and Walgett. The Determination applies to individuals who meet certain criteria, such as being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or severely damaged, having a major asset destroyed or severely damaged, or being a principal carer for a child meeting these criteria. The determination is part of the Social Security Act 1991, which empowers the Minister to make such determinations to provide financial assistance to those adversely affected by a major disaster. This legislation does not undergo disallowance by Parliament, as stipulated under the Act, ensuring swift implementation to support those in need.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 4) (the Determination) specify the circumstances under which a person is considered adversely affected by the major disaster. Section 4(2) sets out these circumstances, which include being seriously injured as a direct result of the disaster, being an immediate family member of an Australian citizen or resident who is killed as a direct result of the disaster, having one’s principal place of residence destroyed or severely damaged, having a major asset destroyed or severely damaged, or being a principal carer of a child who meets any of the previous criteria (subsection 4(2)(a)-(e)). This section ensures that those who have been significantly impacted by the disaster are eligible for the Australian Government Disaster Recovery Payment (AGDRP).
The Determination imposes obligations on various parties to ensure the proper administration and distribution of the AGDRP. The Minister for Emergency Management is required to determine that the events in question constitute a major disaster under section 36(1) of the Social Security Act 1991 (the Act), and the Minister must also determine the circumstances in which persons are to be considered adversely affected by the disaster under section 1061L(2) of the Act. Section 5 of the Determination repeals the previous Determination (No. 3), while Section 6 ensures that any actions taken under the previous Determination continue to have effect, maintaining the continuity of support for those already affected. Additionally, subsection 1061L(3) of the Act specifies that the Determination is a legislative instrument, exempting it from disallowance by Parliament as per subsection 1061L(3) of the Act.
The Act outlines potential consequences for non-compliance or breaches related to the AGDRP. Although the Determination itself does not specify penalties, breaches of the Social Security Act 1991 can result in both civil and criminal penalties. For instance, under section 134A of the Act, a person who knowingly makes a false statement or representation in an application for a payment can be liable for a civil penalty of up to 20 penalty units, which currently equates to approximately $3,900. In more serious cases, offences under the Act can lead to criminal prosecution, with potential penalties including fines of up to $210,000 for corporations and $42,000 for individuals, as well as imprisonment for up to five years. These provisions ensure that the integrity of the disaster recovery payment process is maintained and that resources are appropriately allocated to those genuinely in need.