EXPLANATORY STATEMENT
Social Security (Australian Government Disaster Recovery Payment—Victorian Bushfires) Determination 2019 (No. 16)
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 that occurred in February and March 2019 in Victoria affecting the local government areas of Baw Baw. Cardinia and Latrobe.
- The Social Security (Australian Government Disaster Recovery Payment—Victorian Bushfires) Determination 2019 (No. 16) (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 19/312. 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 bushfires that occurred in February and March 2019 in Victoria, affecting the local government areas of Baw Baw, Cardinia and Latrobe.
- 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 3 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—Victorian Bushfires) Determination 2019 (No. 16) was enacted to provide financial assistance to individuals adversely affected by the bushfires in Victoria during February and March 2019, particularly in the local government areas of Baw Baw, Cardinia, and Latrobe. This legislation was issued by authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management and was established under the Social Security Act 1991. The primary policy objective of this determination is to offer immediate relief to those significantly impacted by the disaster, ensuring they receive the necessary support without delay.
The Determination specifies that an individual is considered adversely affected by the major disaster if they have been seriously injured, are an immediate family member of someone killed as a direct result of the disaster, their principal residence was destroyed or sustained major damage, or they are a principal carer for a child who meets any of the above criteria. This legal instrument was introduced swiftly to address the urgent needs of the affected communities, and while it was not subject to disallowance by Parliament, it was not formally consulted due to the pressing nature of the disaster response.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment—Victorian Bushfires) Determination 2019 (No. 16) applies to individuals who are adversely affected by the bushfires that occurred in February and March 2019 in Victoria, specifically within the local government areas of Baw Baw, Cardinia, and Latrobe. The Act identifies those who are adversely affected by the disaster as those who are seriously injured, immediate family members of those killed, those whose principal place of residence is destroyed or significantly damaged, or principal carers of children fitting into the aforementioned categories. This Determination is an instrument under the Social Security Act 1991, which is not subject to disallowance by the Parliament, reflecting the urgent need for the payment to be issued. The Determination provides a legislative framework for the circumstances in which individuals can be recognised as adversely affected by the major disaster, thus qualifying them for the Australian Government Disaster Recovery Payment.
Key Provisions
The Social Security (Australian Government Disaster Recovery Payment—Victorian Bushfires) Determination 2019 (No. 16) (sections 1-4) provides specific circumstances under which an individual is considered adversely affected by the bushfires in Victoria during February and March 2019, for the purposes of the Australian Government Disaster Recovery Payment (AGDRP). Section 4(2) of the Determination outlines these circumstances, which include being seriously injured as a direct result of the disaster (paragraph 4(2)(a)), being an immediate family member of an Australian killed due to the disaster (paragraph 4(2)(b)), having a principal place of residence destroyed or significantly damaged by the disaster (paragraph 4(2)(c)), and being a principal carer of a child who meets the criteria in paragraphs 4(2)(a), (b), or (c) (paragraph 4(2)(d)). These definitions and criteria are crucial for determining eligibility for the AGDRP.
Under this Determination, various obligations are placed on individuals and entities. Eligible individuals must satisfy the specific criteria outlined in section 4(2) to be considered adversely affected, and they must provide necessary documentation to substantiate their claims. The Australian Government, through the Department of Home Affairs, is responsible for administering the payment and ensuring that the criteria are applied correctly and consistently. The Determination also requires that the payment be provided promptly to those who qualify, reflecting the urgent nature of the disaster recovery needs.
Breaching the provisions of the Determination or providing false information to obtain the AGDRP can lead to civil or criminal penalties. According to section 1061L(3) of the Social Security Act 1991, determinations under section 1061L are legislative instruments, and this Determination is not subject to disallowance by the Parliament. However, dishonest claims or fraudulent behaviour can result in legal action, including fines and potential imprisonment. The exact penalties for such offences are determined by other provisions of the Social Security Act 1991 and the Criminal Code Act 1995, which may include substantial fines and imprisonment terms for serious cases of fraud.