EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 2)
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 Armidale, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Glen Innes Severn, Hornsby, Kempsey, Kyogle, Lismore, Nambucca, Port Macquarie Hastings, Richmond Valley, Tenterfield, The Hills and Tweed.
- The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 2) (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 the severe weather, heavy rainfall and associated flooding that commenced on 22 February 2022 in New South Wales affecting the local government areas of Armidale, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Glen Innes Severn, Hornsby, Kempsey, Kyogle, Lismore, Nambucca, Port Macquarie Hastings, Richmond Valley, Tenterfield, The Hills 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)).
- Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – Northern New South Wales floods) Determination 2022 (No.1) is repealed, as enabled under section 33(3) of the Acts Interpretation Act 1901.
- Section 6 provides that despite the operation of section 5, anything done under the Social Security (Australian Government Disaster Recovery Payment – Northern New South Wales floods) Determination 2022 (No.1) continues to be in effect.
- 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. 2) was enacted to provide a legal framework for the distribution of the Australian Government Disaster Recovery Payment (AGDRP) to individuals adversely affected by the severe weather, heavy rainfall, and associated flooding that occurred in Northern New South Wales starting on 22 February 2022. The determination was issued under the authority of the Minister for Emergency Management and National Recovery and Resilience and operates in conjunction with the Social Security Act 1991. The policy objective is to offer immediate financial assistance to those significantly impacted by the disaster, ensuring they receive the necessary support without delay. The determination specifies the conditions under which a person qualifies for the AGDRP, such as being seriously injured, losing an immediate family member, or experiencing substantial damage to their principal place of residence or major assets. The urgency of the situation led to the determination being issued without formal consultation, as it was essential to commence immediately to provide timely relief to affected individuals.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 2) is a legislative instrument under the Social Security Act 1991, designed to provide financial assistance to individuals adversely affected by the severe weather, heavy rainfall, and associated flooding that commenced on 22 February 2022 in Northern New South Wales. This Determination applies specifically to the local government areas of Armidale, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour, Glen Innes Severn, Hornsby, Kempsey, Kyogle, Lismore, Nambucca, Port Macquarie Hastings, Richmond Valley, Tenterfield, The Hills, and Tweed. It outlines the specific circumstances under which a person is deemed to be adversely affected by the disaster, including being seriously injured or an immediate family member of someone killed as a direct result of the disaster, having a principal place of residence destroyed or significantly damaged, or experiencing major damage to major assets. The Determination is effective from the day it is signed and is not subject to disallowance by the Parliament, reflecting the urgent nature of the disaster response. This instrument also repeals the earlier Social Security (Australian Government Disaster Recovery Payment – Northern New South Wales floods) Determination 2022 (No.1), although actions taken under the previous Determination remain valid.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—Northern New South Wales floods) Determination 2022 (No. 2) provides specific criteria for individuals to qualify for the Australian Government Disaster Recovery Payment (AGDRP) in the context of the severe weather, heavy rainfall, and associated flooding that occurred in certain local government areas of New South Wales starting on 22 February 2022. Section 4(2) of the Determination specifies the circumstances under which a person is considered to be 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 who is killed due to the disaster, having a principal place of residence destroyed or severely damaged by the disaster, having major assets destroyed or severely damaged by the disaster, or being a principal carer of a child who meets any of these criteria.
The Act imposes several obligations on parties involved. The Minister, under section 36, has the authority to determine if an event qualifies as a 'major disaster', which necessitates a significant impact on individuals warranting a government response. The Minister, under section 1061L, is also responsible for determining in writing the specific circumstances that would qualify an individual as adversely affected by a major disaster. The Act requires that such determinations be made in writing and published to ensure transparency and clarity for affected individuals.
Failure to comply with the provisions of the Determination can lead to civil or criminal consequences, although specific penalties are not detailed in the provided text. It is implied that any fraudulent claims or misrepresentations could lead to legal action under the relevant laws governing social security payments. The Determination itself is a legislative instrument and is not subject to disallowance by Parliament, underscoring the urgency and necessity of the measures being put in place to assist those affected by the disaster.
Under the Determination, the Social Security (Australian Government Disaster Recovery Payment – Northern New South Wales floods) Determination 2022 (No.1) is repealed, but any actions taken under that previous determination remain valid. This ensures continuity of support for those already in the process of claiming benefits or for whom the previous determination applied. Definitions for terms such as 'destroyed', 'immediate family member', 'major asset or assets', 'major damage', 'seriously injured', and 'principal place of residence' are provided to offer clarity and ensure consistent application of the Determination.