EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2020 (No. 3)
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 applies only to bushfires occurring in November and December 2019, and January 2020, in South Australia, affecting the local government areas of Adelaide Hills, Kangaroo Island, Kingston, Lower Eyre Peninsula, Mount Barker, Playford and Yorke Peninsula.
- The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2020 (No. 3) (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. Subsection 1(2) provides that the Determination may also be cited as LIN 20/024. 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 and December 2019, and January 2020, in South Australia, affecting the local government areas of Adelaide Hills, Kangaroo Island, Kingston, Lower Eyre Peninsula, Mount Barker, Playford and Yorke Peninsula.
12. 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
- 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.23) 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.23) 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.
Overview
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2020 (No. 3) was enacted to provide immediate financial assistance to individuals adversely affected by the bushfires in South Australia during November 2019 to January 2020. This legislation was introduced to address the urgent need for financial support for those impacted by the disaster, ensuring they receive timely assistance. Issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, the determination aims to clarify the specific circumstances under which individuals are deemed to be adversely affected by the disaster, thereby qualifying them for the Australian Government Disaster Recovery Payment. The policy objective is to ensure that affected individuals receive the necessary support without delay, facilitating quicker recovery from the disaster's impacts.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2020 (No. 3) applies to individuals who are adversely affected by the major disaster of bushfires that occurred in South Australia between November 2019 and January 2020, specifically in the local government areas of Adelaide Hills, Kangaroo Island, Kingston, Lower Eyre Peninsula, Mount Barker, Playford, and Yorke Peninsula. To qualify for the Australian Government Disaster Recovery Payment under this Determination, an individual must meet certain criteria: they must be seriously injured as a direct result of the disaster, be an immediate family member of an Australian killed in the disaster, have their principal place of residence destroyed or significantly damaged by the disaster, or be a principal carer of a child who falls into one of the previous categories. The Determination is a legislative instrument made under the Social Security Act 1991 and is not subject to disallowance by Parliament. It repeals the earlier Social Security (Australian Government Disaster Recovery Payment – South Australian Bushfires) Determination 2019 (No. 23) but allows actions taken under the repealed Determination to remain in effect. This urgent legislation was enacted without formal consultation due to the immediate need to provide relief to those affected by the disaster.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—South Australian Bushfires) Determination 2020 (No. 3) (the Determination) is a legislative instrument under the Social Security Act 1991 (the Act). It specifies the circumstances in which a person is considered to be adversely affected by the bushfires occurring in South Australia between November 2019 and January 2020. Section 4(2) of the Determination provides that a person is adversely affected if they are seriously injured, are an immediate family member of someone killed, their residence is destroyed or has major damage, or they are a principal carer of a child affected by any of these circumstances. The Determination is significant as it outlines the eligibility criteria for the Australian Government Disaster Recovery Payment (AGDRP), a one-off payment provided to those adversely affected by the disaster.
The Determination imposes certain obligations on the individuals and entities it governs. For example, those seeking the AGDRP must satisfy the criteria set out in Section 4(2), which requires demonstrating that they are adversely affected by the disaster in one of the specified ways. This includes providing evidence of injury, death of an immediate family member, property damage, or their role as a principal carer of an affected child. The Determination also requires the Minister to determine the circumstances under which a person is considered adversely affected by a major disaster. This is done through the process outlined in Section 1061L of the Act, where the Minister can make a written determination regarding the specific circumstances of the disaster.
Breaches of the provisions set out in the Determination may lead to various consequences. While the Determination itself does not explicitly outline penalties, the broader Social Security Act 1991 and the Acts Interpretation Act 1901 provide the legal framework within which breaches are dealt. For instance, making a false statement or providing misleading information to obtain the AGDRP could be considered an offence under the Social Security Act, potentially leading to fines or imprisonment. Additionally, any misuse of funds received from the AGDRP could also result in civil or criminal liability, depending on the nature and extent of the breach. The specific penalties would depend on the nature of the offence and the applicable laws, but they could include fines, restitution, or imprisonment.
In summary, the Determination provides clear criteria for eligibility for the AGDRP in the context of the South Australian bushfires. It imposes obligations on individuals to provide evidence of their adverse effects from the disaster and on the Minister to determine the specific circumstances of the disaster. Breaches of the provisions could result in civil or criminal consequences, including fines and imprisonment, depending on the nature of the breach and the applicable laws.