EXPLANATORY STATEMENT
Issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management
Social Security Act 1991
Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 15)
- 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 subsection 36(1) of the Act that applies only to the bushfires occurring in November 2019 in South Australia, affecting the local government area of Yorke Peninsula.
- The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 15) (the Determination) gives effect to the declaration made under subsection 36(1) 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. Subsection 1(2) provides that the Determination may also be cited as LIN 19/306. This is an internal reference for the Department of Home Affairs.
- 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 bushfires occurring in November 2019 in South Australia, affecting the local government area of Yorke Peninsula.
- Subsection 4(2) of the Determination provides that the four circumstances in which a person will be taken to be adversely affected by the major disaster described in subsection 4(1) of the Determination 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
- the person is a principal carer of a child to whom paragraphs 4(2)(a), (b) or (c) apply (paragraph 4(2)(d)).
- The terms ‘Act’, ‘destroyed’, ‘immediate family member’, ‘major damage’ and ‘seriously injured’ are defined in section 3 of the Determination.
- 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—South Australian Bushfires) Determination 2019 (No. 15) was enacted in response to the significant impact of the bushfires in South Australia during November 2019, particularly in the Yorke Peninsula local government area. This legislation is a determination under the Social Security Act 1991 and aims to provide an immediate, one-off payment to individuals adversely affected by the major disaster, as specified by the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management. The policy objective is to ensure timely financial support for those who have suffered severe consequences due to the disaster, thereby facilitating initial recovery efforts. The determination sets out specific circumstances under which a person is considered adversely affected, including serious injury, loss of an immediate family member, destruction or major damage to their principal residence, or being a principal carer for an affected individual.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 15) applies specifically to individuals adversely affected by the bushfires that occurred in South Australia in November 2019 within the local government area of Yorke Peninsula. This determination is an extension of the Social Security Act 1991, under which a person qualifies for the Australian Government Disaster Recovery Payment if they meet certain criteria related to the impact of the disaster. This includes being seriously injured, being an immediate family member of someone killed, having one’s residence destroyed or significantly damaged, or being a principal carer of someone meeting these criteria. The geographic scope of this legislation is limited to the specified disaster and location, and it does not extend to other areas or types of disasters unless further determinations are made. The determination does not undergo disallowance by Parliament and was enacted without formal consultation due to the urgent need for such measures.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 15) (the Determination) outlines the circumstances in which a person will be considered "adversely affected" by the major disaster of the bushfires that occurred in South Australia in November 2019, specifically in the Yorke Peninsula local government area. According to Section 1061L(2) of the Social Security Act 1991 (the Act), the Minister has the authority to determine these circumstances in writing. The Determination stipulates that a person will be deemed adversely affected if they are seriously injured (subsection 4(2)(a)), if they are an immediate family member of someone killed as a direct result of the disaster (subsection 4(2)(b)), if their principal place of residence has been destroyed or suffered major damage (subsection 4(2)(c)), or if they are a principal carer of a child who falls under any of the previous conditions (subsection 4(2)(d)).
The Act imposes several obligations and requirements on the parties it governs. For example, Section 36 empowers the Minister to declare an event a 'major disaster' if they are satisfied that the event warrants a government response due to its significant impact on individuals. Furthermore, Section 1061K specifies the criteria for qualification for the Australian Government Disaster Recovery Payment (AGDRP), which includes being adversely affected by a major disaster. The Determination, which is a legislative instrument not subject to disallowance, further defines what it means to be adversely affected by the specified bushfires. This determination was made to ensure timely assistance to those in need.
Breaches of the provisions under the Act, particularly the determination of eligibility for the AGDRP, can result in legal consequences. However, the Determination does not explicitly state penalties for non-compliance or misrepresentation of facts. Instead, the focus is on ensuring that affected individuals receive the necessary support promptly. It is important for applicants to provide accurate information to avoid any potential consequences, which could include civil or criminal liability for false claims or misrepresentation of facts in applications for the AGDRP. The penalties for such offences are not specified in the Determination but would typically be in line with the general provisions of the Social Security Act 1991, which could include fines or imprisonment.