EXPLANATORY STATEMENT

Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination 2022 (No. 3)

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 and November 2022 in New South Wales affecting the local government areas of Cootamundra-Gundagai, Forbes, Gunnedah, Liverpool Plains, Moree Plains, Murray River, Narrabri, Snowy Valleys, Upper Lachlan and Wagga Wagga.
7. The Social Security (Australian Government Disaster Recovery Payment—New South Wales floods – September-October 2022) Determination 2022 (No. 3) (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 22/106. 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 and November 2022 in New South Wales affecting the local government areas of Cootamundra-Gundagai, Forbes, Gunnedah, Liverpool Plains, Moree Plains, Murray River, Narrabri, Snowy Valleys, Upper Lachlan and Wagga Wagga.

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. Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – New South Wales floods – September-October 2022) Determination (No.2) 2022 is repealed, as enabled under section 33(3) of the Acts Interpretation Act 1901.
3. 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 (No.2) 2022 continues to have effect.
4. 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.
5. Formal consultation has not been undertaken as the Determination was required to commence as a matter of urgency.