EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment— Tasmanian Bushfires) Determination 2020 (No.4)
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 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 section 36(1) of the Act that applies only to the bushfires occurring in December 2019 and January 2020 in Tasmania, affecting the local government areas of Break O’Day, Central Highlands and Southern Midlands.
- The Social Security (Australian Government Disaster Recovery Payment—Tasmanian Bushfires) Determination 2020 (No. 4) (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 20/036. 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 bushfire occurring in December 2019 and January 2020 in Tasmania, affecting the local government areas of Break O’Day, Central Highlands and Southern Midlands.
- 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)).
- The terms ‘Act’, ‘destroyed’, ‘immediate family member’, ‘major damage’ and ‘seriously injured’ are defined in section 4 of 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—Tasmanian Bushfires) Determination 2020 (No. 4) was enacted to address the immediate needs of individuals affected by the bushfires in Tasmania during December 2019 and January 2020. This determination provides a legislative framework for the Australian Government Disaster Recovery Payment, ensuring that those adversely affected by the major disaster receive timely financial assistance. The Minister for Water Resources, Drought, Rural Finance, Natural Disaster, and Emergency Management issued this determination under the Social Security Act 1991, specifying that it applies exclusively to the bushfires in certain local government areas in Tasmania. The policy objective is to offer a one-off payment to those significantly impacted by the disaster, thereby supporting their recovery efforts. This legislation was enacted with urgency, allowing it to commence before registration to ensure that no eligible individuals are left without assistance.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—Tasmanian Bushfires) Determination 2020 (No. 4) applies specifically to individuals who are adversely affected by the bushfires that occurred in December 2019 and January 2020 in Tasmania, within the local government areas of Break O’Day, Central Highlands, and Southern Midlands. This determination is made under the Social Security Act 1991, which governs the provision of the Australian Government Disaster Recovery Payment (AGDRP). The Act stipulates that to qualify for the AGDRP, a person must be adversely affected by a major disaster, as defined by the Minister in relation to the specific disaster. The Determination outlines the specific circumstances under which a person is considered to be adversely affected, such as being seriously injured, being an immediate family member of someone killed, having a destroyed or significantly damaged principal place of residence, or being a principal carer of a child who meets these criteria. This legislation is not subject to disallowance by the Parliament and was implemented without formal consultation due to the urgent nature of the disaster response.
Key Provisions
The main sections of the Social Security (Australian Government Disaster Recovery Payment—Tasmanian Bushfires) Determination 2020 (No. 4) (the Determination) clarify the eligibility criteria for the Australian Government Disaster Recovery Payment (AGDRP) in the context of the Tasmanian bushfires that occurred in December 2019 and January 2020. Section 4 of the Determination outlines the specific circumstances under which a person is considered adversely affected by the disaster, including being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or severely damaged, or being a principal carer of a child affected by the disaster (subsection 4(2)). The Determination also provides definitions for key terms such as 'destroyed','major damage', and 'seriously injured' (section 3).
The Act and the Determination impose several obligations on the parties involved. 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. In this case, the Minister has determined that the Tasmanian bushfires meet the criteria for a major disaster. Furthermore, the Minister must specify the circumstances under which individuals are considered adversely affected by such a disaster, as outlined in the Determination (subsection 1061L(2)). Applicants for the AGDRP must demonstrate that they meet the criteria specified in section 4 of the Determination, which entails providing evidence of their adverse impact due to the bushfires.
The Act and the Determination establish specific offences and penalties for breaches related to the AGDRP. Under subsection 1061L(3), a determination under section 1061L is a legislative instrument, which is not subject to disallowance by Parliament, as provided by the Legislation Act 2003. This means that the Determination is legally binding and any misrepresentation of facts to obtain the payment could result in criminal charges. The penalties for making a false statement or providing misleading information to obtain the AGDRP could include fines and imprisonment, as outlined under the Social Security Act 1991. The maximum penalties for such offences are not explicitly stated in the Determination but generally include fines of up to $22,200 and/or imprisonment for up to two years under the Commonwealth criminal code.