Social Security (Australian Government Disaster Recovery Payment—New South Wales floods - September-October 2022) Determination (No.1) 2022

Administered by Department of Home Affairs

Legislation au F2022L01713 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination (No.1) 2022

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, or the event is an emergency to which a national emergency declaration relates.
  6. 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 in New South Wales affecting the local government areas of Gunnedah, Moree Plains and Narrabri.
  7. The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination (No.1) 2022 (the Determination) 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 22/100. This is an internal reference for the Department of Home Affairs who have drafted on behalf of 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 as follows: 
    1. ‘Destroyed’ means where the damage is so severe that the residence is unliveable and has to be demolished, or if referring to a major asset, is so badly damaged that it is rendered unusable.
    2. ‘immediate family member’, of a person, means:
      1. the person’s partner; or
      2. the person’s natural child, adoptive child or step-child; or
      3. the person’s natural parent, adoptive parent or step-parent; or
      4. the person’s legal guardian; or
      5. the person’s brother, sister, step-brother or step-sister.

  Note This term is used in a different sense to that used in the Act.

c.       ‘major asset’ means an asset, with a market value of at least $20 000, or several assets, with a combined market value of at least $20 000, located at the person’s principal place of residence. Examples include a building, large fixed structure, motor vehicle, caravan, water tank, large scale machinery, heavy equipment.

d.       ‘major damage’ means:

  1. for a residence:
    1. damage to the interior of the residence; or
    2. that the residence is structurally unsound; or
    3. damage to the residence that exposes the interior of the residence to the elements; or
    4. sewage contamination of the interior of the residence or of the water supply to the residence; or
  2. for a major asset or assets other than a water tank—that it is damaged by the storms or by flood waters, to the extent that it needs to be replaced; or
  3. for a major asset that is a water tank—damage to the extent that it needs to be repaired or cleaned, or the water replaced.
  1. ‘seriously injured’ means the person has sustained an injury as a direct result of the disaster and because of that injury they have either been admitted to hospital or would have been admitted to hospital, under normal circumstances.
  2. A place of residence is a person’s ‘principal place of residence’ if:
    1. the person regularly lives at the place with a degree of settled purpose; and
    2. the person has a lawful right to reside at the place; and
    3. the place is not:
      1. a prison or a place of detention; or
      2. a secondary residence used for holidays.

Note It is possible for a person to have more than 1 principal place of residence.

11.          Subsection 4(1) of the Determination 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 in New South Wales affecting the local government areas of Gunnedah, Moree Plains and Narrabri.

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)).
  1. 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.
  2. 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.
  3. 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 (No.1) 2022 was enacted to address the urgent need for financial support for individuals adversely affected by the floods in New South Wales during September and October 2022. This Determination was issued under the Social Security Act 1991 by the Minister for Emergency Management, pursuant to the powers granted by section 1061L of the Act. The primary objective of this Determination is to define the circumstances under which individuals will be considered adversely affected by the specified major disaster, thereby qualifying them for the Australian Government Disaster Recovery Payment (AGDRP). The Determination specifies that a person is adversely affected if they are seriously injured, are an immediate family member of someone killed, their principal residence is destroyed or significantly damaged, or a major asset is destroyed or damaged by the disaster. This legislative instrument was necessary to provide immediate relief and was drafted in a manner that allows it to commence before registration, ensuring that no eligible individuals are disadvantaged by administrative delays. The Social Security Act 1991, as amended by this Determination, aims to streamline the process for providing urgent financial assistance to those impacted by the New South Wales floods, ensuring that support reaches those in need without delay. The definitions provided in the Determination, such as 'destroyed', 'immediate family member','major asset', 'major damage', and 'seriously injured', clarify the specific circumstances that qualify an individual for the AGDRP. This Determination ensures that the payment process is both efficient and equitable, 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 – September-October 2022) Determination (No. 1) 2022 applies to individuals who have been adversely affected by the storms and floods that occurred in September and October 2022 in New South Wales, specifically within the local government areas of Gunnedah, Moree Plains, and Narrabri. This Determination outlines the specific circumstances under which a person is considered to be adversely affected by the major disaster, which is defined by the Minister under the Social Security Act 1991. The adverse effects recognised include being seriously injured as a direct result of the disaster, being an immediate family member of an Australian citizen or resident killed by the disaster, having one's principal place of residence destroyed or severely damaged, having major assets destroyed or severely damaged, or being a principal carer of a child who falls under these circumstances. The terms used, such as 'destroyed', 'immediate family member','major asset', 'major damage', and 'seriously injured', are defined within the Determination. The instrument does not require disallowance by Parliament and was enacted without formal consultation due to the urgent need for its implementation.

Key Provisions

The main operative sections of the Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination (No.1) 2022 (the Determination) specify the circumstances under which a person is deemed to be adversely affected by the major disaster, as defined in Section 1061L of the Social Security Act 1991. The key provision in Section 4(2) of the Determination enumerates the specific conditions that qualify a person for the Australian Government Disaster Recovery Payment (AGDRP). These conditions include being seriously injured as a direct result of the disaster, being an immediate family member of a victim who is killed as a direct result of the disaster, having a principal place of residence destroyed or severely damaged by the disaster, or having major assets destroyed or severely damaged by the disaster. Additionally, a principal carer of a child who meets any of the aforementioned criteria is also eligible. The Determination imposes obligations on the parties involved, particularly those seeking the AGDRP. Claimants must provide evidence substantiating their claims, such as medical reports for serious injuries, death certificates for immediate family members, and assessments of property damage. The Department of Home Affairs, on behalf of the National Emergency Management Agency, is responsible for assessing these claims. The Determination outlines the criteria for assessing the extent of damage to residences and major assets, as well as the process for verifying the claimant's relationship to any deceased or injured parties. Claimants must also provide documentation that proves their identity and residency status. Failure to comply with the requirements set out in the Determination can result in civil or criminal consequences. Under Section 123D of the Social Security Act 1991, making a false statement or providing false information with the intent to obtain a payment can be considered an offence. Such offences carry a maximum penalty of 2,500 penalty units or imprisonment for five years, or both, as stipulated in Section 123H of the Act. Additionally, any person who knowingly makes a false statement or provides false information in relation to the determination of their eligibility for the AGDRP can be liable for civil penalties, including the repayment of any amount received under false pretences. The Determination underscores the seriousness of these offences and the importance of providing accurate information.

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Social Security Law
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Australian Government Disaster Recovery Payment

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.