Explanatory Statement
Issued by authority of the Acting Minister for Emergency Management
Social Security Act 1991
Social Security (Australian Government Disaster Recovery Payment—Tropical Cyclone Jasper—December 2023) (LIN 23/092) Determination 2023 (No. 1)
- The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to a person 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 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 for the disaster.
- Subsection 1061L(2) of the Act provides that the Minister may determine in writing, for a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster.
- Subsection 36(1) 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, or the event is an emergency to which a national emergency declaration relates.
- The Minister has made a determination under subsection 36(1) of the Act that applies only to the tropical cyclone Jasper that crossed into Queensland on 13 December 2023 and brought severe weather and flooding that continued in December 2023, affecting the local government areas of Cairns, Cassowary Coast, Cook, Douglas, Hope Vale, Mareeba, Tablelands, Wujal Wujal and Yarrabah.
- The Social Security (Australian Government Disaster Recovery Payment—Tropical Cyclone Jasper—December 2023) (LIN 23/092) Determination 2023 (No. 1) (the Determination) sets out the circumstances in which a person is to be ‘adversely affected’ by the major disaster.
- Section 1 specifies the name of the Determination.
- Section 2 provides that the Determination commences immediately after it is signed. For 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 provides definitions relevant to the Determination, including destroyed, immediate family member, major asset or assets, major damage and seriously injured and principal place of residence.
- Subsection 4(1) provides that the Determination applies to the major disaster being the tropical cyclone Jasper that crossed into Queensland on 13 December 2023 and brought severe weather and flooding that continued in December 2023, affecting the local government areas of Cairns, Cassowary Coast, Cook, Douglas, Hope Vale, Mareeba, Tablelands, Wujal Wujal and Yarrabah..
- Subsection 4(2) provides that the circumstances in which a person is taken to be adversely affected by the major disaster described in subsection 4(1) are if:
(a) the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
(b) the person is an immediate family member of an Australian citizen or resident who is missing and presumed killed or killed as a direct result of the disaster (paragraph 4(2)(b)); or
(c) 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
(d) a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
(e) the person is a carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).
13. Subsection 1061L(3) of the Act provides that a determination under section 1061L is a legislative instrument. However, the Determination 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 it.
14. Formal consultation, including engagement with the Office of Impact Analysis, was not undertaken as the Determination was required to commence as a matter of urgency.
Overview
The Social Security (Australian Government Disaster Recovery Payment—Tropical Cyclone Jasper—December 2023) (LIN 23/092) Determination 2023 (No. 1) was enacted to address the urgent need for financial assistance to individuals adversely affected by Tropical Cyclone Jasper, which struck Queensland in December 2023. This Determination, made under the authority of the Social Security Act 1991, provides a legislative framework for the Australian Government Disaster Recovery Payment (AGDRP), ensuring immediate relief to those significantly impacted by the cyclone. It aims to facilitate a swift and targeted response by defining the criteria for eligibility, thereby enabling affected persons to receive necessary support without delay. The policy objective is to mitigate the adverse effects of the disaster on individuals and communities by providing timely financial assistance.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—Tropical Cyclone Jasper—December 2023) (LIN 23/092) Determination 2023 (No. 1) applies to individuals who have been adversely affected by the major disaster caused by tropical cyclone Jasper in December 2023, specifically within the local government areas of Cairns, Cassowary Coast, Cook, Douglas, Hope Vale, Mareeba, Tablelands, Wujal Wujal and Yarrabah in Queensland. The Act applies to people who are either seriously injured, an immediate family member of someone who has been killed or is missing and presumed dead, or whose principal place of residence or major assets have been destroyed or suffered major damage as a direct result of the disaster. Additionally, it extends to carers of individuals who fall under the aforementioned categories. The Determination is not subject to disallowance by the Parliament and was made with urgency, bypassing formal consultation processes, as it was deemed necessary to commence immediately to provide timely relief to those affected by the disaster.
Key Provisions
The primary operative sections of this legislation are sections 4(2) and 1061L of the Social Security Act 1991, as supplemented by the Social Security (Australian Government Disaster Recovery Payment—Tropical Cyclone Jasper—December 2023) (LIN 23/092) Determination 2023 (No. 1). Section 4(2) of the Determination sets out the specific circumstances in which a person will be considered adversely affected by the major disaster of Tropical Cyclone Jasper. This includes being seriously injured as a direct result of the disaster, being an immediate family member of an Australian citizen or resident who is missing and presumed killed or killed as a direct result of the disaster, having a principal place of residence that has been destroyed or significantly damaged, having a major asset or assets that have been destroyed or significantly damaged, or being a carer for a child who falls under any of these categories. Section 1061L provides the authority for the Minister to determine what it means to be adversely affected by a major disaster, and section 1061K specifies the criteria for eligibility for the Australian Government Disaster Recovery Payment (AGDRP).
The obligations and requirements imposed by this Act primarily concern the Minister for Emergency Management, who must determine the circumstances in which a person is considered adversely affected by a major disaster. This involves making a written determination under section 1061L, which is then specified in the Determination. The Minister must also ensure that the Determination is implemented in a manner that provides timely assistance to those who qualify for the AGDRP. The Act requires the Minister to take into account the severity and impact of the disaster when making these determinations.
Failure to comply with the requirements of this legislation could result in civil or criminal consequences, depending on the nature and severity of the breach. The maximum penalties for offences under the Social Security Act 1991 can include substantial fines and imprisonment. For example, knowingly providing false or misleading information to obtain a payment could result in penalties of up to $22,200 or imprisonment for up to two years, or both. It is also important to note that the Determination is a legislative instrument and is not subject to disallowance by the Parliament, as specified in subsection 1061L(3) of the Act.