EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 20)
Social Security Act 1991
Issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management
- 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 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 only applies to the bushfires occurring in November, December 2019, and if the bushfires in the following areas continue, then January 2020, in South Australia affecting the local government areas of Adelaide Hills, City of Playford, Lower Eyre Peninsula and Yorke Peninsula.
- The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 20) (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 19/342. 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, December 2019, and if the bushfires in the following areas continue, then January 2020, in South Australia affecting the local government areas of Adelaide Hills, City of Playford, Lower Eyre Peninsula and 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)).
- Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – South Australian Bushfires) Determination 2019 (No.15) is repealed, according to 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 – South Australian Bushfires) Determination 2019 (No.15) continues to be in effect.
- 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. 20) was introduced to address the need for swift financial assistance to individuals adversely affected by the bushfires in South Australia during November and December 2019, and potentially into January 2020. This Determination, issued under the authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, complements the Social Security Act 1991 by specifying the criteria for eligibility for the Australian Government Disaster Recovery Payment (AGDRP) in the context of these bushfires. The objective of this legislation is to ensure that affected individuals receive timely support, without the need for formal disallowance procedures, as mandated by the Act.
The Determination sets out specific circumstances under which a person can be considered adversely affected by the major disaster, including being seriously injured, being a family member of someone killed, having a residence destroyed or severely damaged, or being a principal carer for an affected individual. This was necessary to streamline the application process for the AGDRP, allowing for a rapid response to the crisis. The Determination also repeals a previous related instrument while ensuring continuity in the application of the new provisions.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 20) applies specifically to individuals who are adversely affected by the bushfires that occurred in South Australia during November and December 2019 and potentially into January 2020, within the local government areas of Adelaide Hills, City of Playford, Lower Eyre Peninsula, and Yorke Peninsula. The determination outlines the criteria for being considered adversely affected, including being seriously injured as a direct result of the disaster, being an immediate family member of someone killed in the disaster, having one's principal place of residence destroyed or sustaining major damage due to the disaster, or being a principal carer of a child who meets any of these criteria. This legislation is an instrument under the Social Security Act 1991 and serves to provide clarity and eligibility for the Australian Government Disaster Recovery Payment in response to these bushfires. The instrument is not subject to disallowance by Parliament, reflecting the urgency and necessity of providing timely support to those affected by the disaster.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 20) (the Determination) is a legislative instrument that provides an immediate, one-off payment to Australians adversely affected by the bushfires occurring in South Australia in November 2019, December 2019, and potentially January 2020. This Determination applies to the local government areas of Adelaide Hills, City of Playford, Lower Eyre Peninsula, and Yorke Peninsula. Under section 4(2) of the Determination, a person is considered adversely affected if they are seriously injured, if they are an immediate family member of someone killed, if their principal place of residence is destroyed or severely damaged, or if they are a principal carer of a child who meets any of these criteria. The Determination is effective from the day it is signed, and it repeals the previous determination (No. 15) while allowing any actions taken under that determination to remain in effect.
The Determination imposes several obligations on the entities and individuals it governs. Primarily, the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management has the responsibility to determine the circumstances under which a person is adversely affected by the disaster. Additionally, the Department of Home Affairs is tasked with processing applications for the payment and ensuring that the criteria set out in the Determination are met. Individuals seeking the payment must provide evidence to support their claim that they meet the criteria for adverse impact, such as proof of injury, death of a family member, or damage to their residence.
Failure to comply with the requirements of the Determination can result in serious consequences. While specific penalties are not outlined in the text, breaches of the Social Security Act 1991, under which this Determination operates, can lead to both civil and criminal penalties. Civil penalties can include financial penalties and the requirement to repay any incorrectly received payments. Criminal penalties may involve fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach.