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
- 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 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.
- 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.
- 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.
- 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 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.
- 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.20) 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.20) 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. 23) was enacted to provide an immediate, one-off payment to Australians adversely affected by the major disaster of the South Australian bushfires in late 2019 and early 2020. The legislation is an instrument under the Social Security Act 1991, which was designed to offer financial assistance to those impacted by significant disasters. This determination was issued by the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management to ensure timely and effective support to the affected communities. The primary policy objective is to provide swift financial relief to individuals and families who have suffered directly from the disaster, ensuring they have the necessary resources to begin their recovery process.
The determination sets out specific criteria for being considered adversely affected by the disaster, such as being seriously injured, being an immediate family member of someone killed, having a residence destroyed or significantly damaged, or being a principal carer for someone who meets these criteria. By establishing these clear criteria, the legislation aims to streamline the process of providing financial aid to those in need, thereby facilitating quicker recovery and support for the affected population. The determination also repeals a previous related determination to ensure consistency and clarity in the application of the disaster recovery payment.
Scope and Application
The Australian Government Disaster Recovery Payment (AGDRP) under the Social Security Act 1991 provides a one-off payment to individuals adversely affected by a major disaster, as specified in the Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 23). This Determination applies to bushfires occurring in specific South Australian local government areas during November 2019, December 2019, and potentially January 2020. The Act applies to individuals who are seriously injured, immediate family members of those killed, those whose principal residence is destroyed or significantly damaged, and principal carers of children affected under the other criteria. The Determination sets out the conditions for being considered adversely affected by the disaster and is not subject to disallowance by Parliament, reflecting its urgent nature. While the Determination repeals the previous South Australian Bushfires Determination, actions taken under the previous instrument remain valid.
Key Provisions
The main operative sections of the Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2019 (No. 23) (the Determination) provide the circumstances in which a person will be considered adversely affected by the bushfires occurring in South Australia in late 2019 and early 2020, thus qualifying them for the Australian Government Disaster Recovery Payment (AGDRP). Section 4(2) of the Determination lists four specific circumstances: (1) the person is seriously injured as a direct result of the disaster, (2) the person is an immediate family member of an Australian who is killed as a direct result of the disaster, (3) the person’s principal place of residence has been destroyed or has major damage as a direct result of the disaster, and (4) the person is a principal carer of a child to whom any of the preceding conditions apply. These provisions are designed to provide immediate financial assistance to those most directly impacted by the disaster.
The Determination imposes several obligations on the parties it governs. Firstly, the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management is required to determine whether an event qualifies as a ‘major disaster’ under Section 36 of the Social Security Act 1991. Secondly, the Minister must specify the circumstances under which individuals will be considered adversely affected by the disaster, as stipulated in Section 1061L of the Act. Thirdly, the Department of Home Affairs, which administers the AGDRP, must ensure that the payment is distributed to eligible individuals in accordance with the criteria set out in the Determination. Finally, claimants must provide evidence that they meet one of the four adverse effect criteria specified in Section 4(2) of the Determination to qualify for the payment.
The Act does not explicitly state any specific offences, penalties, or civil/criminal consequences for breach within the Determination itself. However, general provisions under the Social Security Act 1991 apply. Providing false information to obtain the AGDRP could be considered fraud, which may result in penalties such as fines, imprisonment, or both, under the Crimes Act 1914. Furthermore, any failure by the Department of Home Affairs to properly administer the payment could lead to administrative penalties or legal actions for breach of duty. The Determination, being a legislative instrument, is not subject to disallowance by the Parliament, which underscores its immediate and urgent application in the context of the disaster.