Explanatory Statement
Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 7)
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 Balranald, Bathurst, Bourke, Brewarrina, Cabonne, Cobar, Cootamundra-Gundagai, Cowra, Dubbo, Edward River, Forbes, Gunnedah, Lachlan, Liverpool Plains, Moree Plains, Murray River, Murrumbidgee, Narrabri, Narrandera, Parkes, Snowy Valleys, Upper Lachlan, Wagga Wagga , Walgett,Weddin and Wentworth.
- The Social Security (Australian Government Disaster Recovery Payment— New South Wales floods – September-October 2022) Determination 2022 (No. 7) (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 Balranald, Bathurst, Bourke, Brewarrina, Cabonne, Cobar, Cootamundra-Gundagai, Cowra, Dubbo, Edward River, Forbes, Gunnedah, Lachlan, Liverpool Plains, Moree Plains, Murray River, Murrumbidgee, Narrabri, Narrandera, Parkes, Snowy Valleys, Upper Lachlan, Wagga Wagga, Walgett,Weddin and Wentworth.
- 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.6) 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. 6) 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. 7), made under the Social Security Act 1991, addresses the urgent need for financial support for individuals adversely affected by the severe floods in New South Wales from September to November 2022. Enacted by the Minister for Emergency Management, the Determination aims to ensure that eligible individuals receive the Australian Government Disaster Recovery Payment (AGDRP), a one-off payment designed to provide immediate relief to those significantly impacted by the disaster. This Determination clarifies the specific circumstances that qualify an individual as adversely affected, such as serious injury, death of an immediate family member, destruction or major damage to one's residence or major assets, or being a principal carer of an affected child. By setting out these criteria, the Determination ensures that the AGDRP is effectively and efficiently distributed to those in need.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination 2022 (No. 7) applies to individuals adversely affected by the major disaster, specifically the storms and floods that occurred in New South Wales from 14 September 2022 through to November 2022, within designated local government areas. This Determination falls under the purview of the Social Security Act 1991, which outlines the criteria for the Australian Government Disaster Recovery Payment (AGDRP). The Act applies to persons who are directly impacted by the disaster, as defined by the Minister for Emergency Management. This includes individuals who are seriously injured, are immediate family members of those killed, have their principal residence destroyed or significantly damaged, have major assets destroyed or damaged, or are primary caregivers of affected children. The geographic scope is limited to the specified local government areas in New South Wales, reflecting the specific regions affected by the disaster. The Determination itself is a legislative instrument but is not subject to disallowance by the Parliament. It supersedes a previous Determination (No. 6), although actions taken under the repealed Determination remain effective.
Key Provisions
The key operative sections of this Determination clarify the specific circumstances under which an individual is considered adversely affected by the New South Wales floods of September-October 2022. According to Section 4(2) of the Determination, an individual is deemed adversely affected if they are seriously injured as a direct result of the disaster, if they are an immediate family member of someone killed in the disaster, if their principal place of residence has been destroyed or suffered major damage, if their major assets have been destroyed or suffered major damage, or if they are a principal carer for a child affected under any of these circumstances. These criteria are detailed under Section 1061K and 1061L of the Social Security Act 1991, which specify the qualifications for the Australian Government Disaster Recovery Payment (AGDRP) and empower the Minister to determine the circumstances of adverse effects for a major disaster.
The Determination imposes clear obligations on the entities and individuals it governs. The Social Security Act 1991, specifically Section 1061L(2), requires the Minister to determine in writing the circumstances under which individuals are considered adversely affected by the disaster. The Determination itself, as specified in Section 4(2), outlines these circumstances in detail. Furthermore, Section 3 provides essential definitions that clarify terms such as "destroyed," "major damage," and "principal place of residence," ensuring that there is no ambiguity in interpreting the criteria for adverse effects. These obligations ensure that the AGDRP is accurately administered to those genuinely in need due to the disaster.
In terms of consequences for non-compliance or breaches, the Determination does not explicitly outline specific offences, penalties, or civil/criminal consequences for failing to adhere to its provisions. However, given that the Determination is a legislative instrument under Section 1061L(3) of the Act, it is likely that any non-compliance could result in legal repercussions under the broader framework of the Social Security Act 1991. Although the Determination itself does not detail specific penalties, the underlying Act and related legislation could impose penalties for fraudulent claims or misrepresentations, which might include fines or imprisonment, depending on the severity of the breach. The Determination's urgency and the necessity to provide immediate relief to affected individuals underscore the importance of accurate and timely compliance with its provisions.