EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 1)
Social Security Act 1991
Issued by authority of the Minister for Emergency Management and National Recovery and Resilience
- The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to Australians 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 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.
- 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.
- Section 36 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 section 36(1) of the Act that applies only to the severe weather, heavy rainfall and associated flooding that commenced on 22 February 2022 in New South Wales affecting the local government areas of Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Kyogle, Lismore, Richmond Valley and Tweed.
- The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 1) (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.
- Section 1 of the Determination specifies the name of the determination.
- 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.
- Section 3 of Determination contains definitions relevant to the determination.
- 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 22 February 2022 in New South Wales affecting the local government areas of Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Kyogle, Lismore, Richmond Valley and Tweed.
- 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:
- the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
- the person is an immediate family member of an Australian who is killed as a direct result of the disaster (paragraph 4(2)(b)); or
- 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
- a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
- the person is a principal carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).
- 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.
- 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.
- 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—Northern New South Wales floods) Determination 2022 (No. 1) was enacted to address the immediate needs of individuals affected by the severe weather, heavy rainfall and associated flooding that commenced on 22 February 2022 in New South Wales. This determination was issued under the authority of the Minister for Emergency Management and National Recovery and Resilience, and is a legislative instrument under section 1061L(3) of the Social Security Act 1991. The primary objective of this determination is to provide clarity and expedite the delivery of the Australian Government Disaster Recovery Payment (AGDRP) to those who have been adversely affected by the disaster in specified local government areas.
This determination specifies the criteria under which a person is considered to be adversely affected by the major disaster, including being seriously injured or being an immediate family member of someone killed as a result of the disaster, having their principal place of residence destroyed or significantly damaged, or losing major assets due to the disaster. The urgency of the situation meant that formal consultation was not undertaken, and the determination is not subject to disallowance by the Parliament, ensuring that those in need receive timely support. The definition of key terms such as 'destroyed','major damage', and 'principal place of residence' are provided to ensure clarity and consistency in the application of the criteria.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 1) applies to individuals adversely affected by the severe weather, heavy rainfall, and associated flooding in New South Wales that began on 22 February 2022 in the local government areas of Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Kyogle, Lismore, Richmond Valley, and Tweed. This Determination is an extension of the Social Security Act 1991 and outlines specific circumstances under which a person may be considered adversely affected by the major disaster. These circumstances include being seriously injured as a direct result of the disaster, being an immediate family member of an Australian killed in the disaster, having one’s principal place of residence destroyed or severely damaged, or experiencing destruction or major damage to a major asset due to the disaster. Additionally, the Determination recognises the adverse effects on principal carers of children who meet any of the aforementioned criteria. This instrument is not subject to disallowance by Parliament, reflecting the urgency and necessity of providing immediate assistance to those affected.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 1) sets out the specific circumstances under which an individual can be considered adversely affected by the severe weather, heavy rainfall and associated flooding that commenced on 22 February 2022 in New South Wales. This determination applies to the local government areas of Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Kyogle, Lismore, Richmond Valley, and Tweed. Under this Determination, a person is considered adversely affected if they are seriously injured as a direct result of the disaster, if they are an immediate family member of an Australian who was killed as a direct result of the disaster, if their principal place of residence has been destroyed or suffered major damage, if a major asset or assets of the person have been destroyed or suffered major damage, or if the person is a principal carer of a child who meets any of these criteria (subsection 4(2)). Definitions for terms such as "destroyed," "immediate family member," "major asset or assets," "major damage," and "seriously injured" are provided in subsection 3(1), while "principal place of residence" is defined in subsection 3(2).
The obligations imposed by the Determination are primarily on the Minister for Emergency Management and National Recovery and Resilience, who must determine in writing the circumstances under which a person is considered adversely affected by the disaster. This involves assessing the specific impacts of the disaster on individuals within the affected areas and formally declaring these impacts. The Minister's determination is legally binding and applies to the specified disaster, ensuring that those genuinely affected can access the Australian Government Disaster Recovery Payment.
Breach of the provisions set out in the Determination could lead to administrative penalties, though the specific nature of these penalties is not detailed in the explanatory statement. Typically, breaches of social security provisions can result in financial penalties, legal action, or both, depending on the severity and intent behind the breach. Maximum penalties for such breaches, as stated under the Social Security Act 1991, can include fines and, in some cases, imprisonment for more serious violations. The exact penalties would be determined by the relevant courts based on the specific circumstances of the breach.