EXPLANATORY STATEMENT

Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 23)

Social Security Act 1991

Issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management

1. The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to Australians 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 taken to be adversely affected by the disaster.
5. 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.
6. The Minister has made a determination under subsection 36(1) of the Act that only applies to bushfires occurring in November, December 2019, and if bushfires in the following areas continue, then January 2020, in South Australia affecting the local government areas of Adelaide Hills, Kangaroo Island, Lower Eyre Peninsula, Mount Barker, Playford and Yorke Peninsula.
7. The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 23) (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.
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 19/347. This is an internal reference for the Department of Home Affairs.
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 Determination contains definitions relevant to the determination.
11. Subsection 4(1) of the Determination provides that the Determination applies to the major disaster being bushfires occurring in November, December 2019, and if bushfires in the following areas continue, then January 2020, in South Australia affecting the local government areas of Adelaide Hills, Kangaroo Island, Lower Eyre Peninsula, Mount Barker, Playford and Yorke Peninsula.
12. 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:
    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 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. the person is a principal carer of a child to whom paragraphs 4(2)(a), (b) or (c) apply (paragraph 4(2)(d)). 
13. Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – South Australian Bushfires) Determination 2019 (No.20) is repealed, according to section 33(3) of the Acts Interpretation Act 1901.
14. 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.20) continues to be in effect.
15. The terms ‘Act’, ‘destroyed’, ‘immediate family member’, ‘major damage’ and ‘seriously injured’ are defined in section 3 of the Determination.
16. 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.
17. Formal consultation has not been undertaken as the Determination was required to commence as a matter of urgency.