Social Security (Australian Government Disaster Recovery Payment—Victorian floods - October 2022) Determination 2022 (No. 3)

Administered by Department of Home Affairs

Legislation au F2022L01693 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No.3)

Social Security Act 1991

Issued by authority of the Minister for Emergency Management

  1. The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to a person adversely affected by a major disaster.
  2. 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”.
  3. 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.
  4. 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.
  5. 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.
  6. The Minister has made a determination under subsection 36(1) of the Act that applies only to the storms and flooding that commenced on 6 October 2022 in Victoria affecting the local government areas of Benalla, Boroondara, Campaspe, Central Goldfields, Greater Bendigo, Greater Shepparton, Loddon, Maribyrnong, Mitchell, Moonee Valley, Mount Alexander, Murrindindi, Strathbogie and Yarra.
  7. The Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No.3) (the Determination) sets out the circumstances in which a person is to be ‘adversely affected’ by the major disaster.
  8. Section 1 of the Determination specifies the name of the determination. Subsection 1(2) provides that the Determination may also be cited as LIN 22/093. This is an internal reference for the Department of Home Affairs which provides legal and legislative services to the National Emergency Management Agency.
  9. 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.
  10. Section 3 of the Determination provides the definitions relevant to the determination as follows: 
    1. ‘Destroyed’ means where the damage is so severe that the residence is unliveable and has to be demolished, or if referring to a major asset, is so badly damaged that it is rendered unusable.
    2. ‘immediate family member’, of a person, means:
      1. the person’s partner; or
      2. the person’s natural child, adoptive child or step-child; or
      3. the person’s natural parent, adoptive parent or step-parent; or
      4. the person’s legal guardian; or
      5. the person’s brother, sister, step-brother or step-sister.

  Note This term is used in a different sense to that used in the Act.

c.       ‘major asset’ means an asset, with a market value of at least $20 000, or several assets, with a combined market value of at least $20 000, located at the person’s principal place of residence. Examples include a building, large fixed structure, motor vehicle, caravan, water tank, large scale machinery, heavy equipment.

d.       ‘major damage’ means:

  1. for a residence:
    1. damage to the interior of the residence; or
    2. that the residence is structurally unsound; or
    3. damage to the residence that exposes the interior of the residence to the elements; or
    4. sewage contamination of the interior of the residence or of the water supply to the residence; or
  2. for a major asset or assets other than a water tank—that it is damaged by the storms or by flood waters, to the extent that it needs to be replaced; or
  3. for a major asset that is a water tank—damage to the extent that it needs to be repaired or cleaned, or the water replaced.
  1. ‘seriously injured’ means the person has sustained an injury as a direct result of the disaster and because of that injury they have either been admitted to hospital or would have been admitted to hospital, under normal circumstances.
  2. A place of residence is a person’s ‘principal place of residence’ if:
    1. the person regularly lives at the place with a degree of settled purpose; and
    2. the person has a lawful right to reside at the place; and
    3. the place is not:
      1. a prison or a place of detention; or
      2. a secondary residence used for holidays.

Note It is possible for a person to have more than 1 principal place of residence.

11.          Subsection 4(1) of the Determination provides that the Determination applies to the major disaster being the storms and flooding that commenced on 6 October 2022 in Victoria affecting the local government areas of Benalla, Boroondara, Campaspe, Central Goldfields, Greater Bendigo, Greater Shepparton, Loddon, Maribyrnong, Mitchell, Moonee Valley, Mount Alexander, Murrindindi, Strathbogie and Yarra.

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:

  1. the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or
  2. the person is an immediate family member of an Australian citizen or resident who is killed as a direct result of the disaster (paragraph 4(2)(b)); or
  3. 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
  4. a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or
  5. the person is a principal carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).
  1. The terms ‘destroyed’, ‘immediate family member’, ‘major asset or assets’, ‘major damage’ and ‘seriously injured’ are defined in subsection 3(1) of Determination. Subsection 3(2) defines what a ‘principal place of residence’ is.
  2. Section 5 of the Determination provides that the Social Security (Australian Government Disaster Recovery Payment – Victorian floods – October 2022) Determination 2022 (No.2) (LIN22/091) is repealed, as enabled under section 33(3) of the Acts Interpretation Act 1901.
  3. Section 6 provides that despite the operation of section 5, anything done under the Social Security Social Security (Australian Government Disaster Recovery Payment – Victorian floods – October 2022) Determination 2022 (No.2) (LIN22/091) continues to have effect.
  4. 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.
  5. 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 floods – October 2022) Determination 2022 (No.3) was enacted to provide a legislative framework for the Australian Government Disaster Recovery Payment (AGDRP) specifically in response to the major disaster caused by the storms and flooding that occurred in Victoria on 6 October 2022. This Determination was issued under the authority of the Minister for Emergency Management and aligns with the provisions of the Social Security Act 1991. The primary objective of this legislation is to ensure that individuals adversely affected by the specified disaster can quickly access the financial assistance they need. It defines the criteria and circumstances under which a person qualifies for the AGDRP, ensuring that those who suffered significant personal injury, loss of life within their immediate family, destruction or severe damage to their principal residence or major assets, or those providing care for affected children, can receive the necessary support. This Determination not only specifies the affected areas and the qualifying conditions for receiving the payment but also repeals a previous determination to streamline the legislative process and avoid any legal ambiguities. Despite the repeal, actions already taken under the previous determination remain valid, ensuring continuity of support for those already affected. The urgency and specificity of this legislation reflect the government’s commitment to providing timely and effective disaster relief.

Scope and Application

The Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No.3) applies to individuals who have been adversely affected by the major disaster declared in relation to the storms and flooding that commenced on 6 October 2022 in Victoria, specifically within the local government areas of Benalla, Boroondara, Campaspe, Central Goldfields, Greater Bendigo, Greater Shepparton, Loddon, Maribyrnong, Mitchell, Moonee Valley, Mount Alexander, Murrindindi, Strathbogie and Yarra. The determination specifies the criteria under which a person is considered to be adversely affected, including being seriously injured, being an immediate family member of a person killed, having their principal place of residence destroyed or significantly damaged, or having a major asset destroyed or severely damaged. The determination is made pursuant to section 1061K of the Social Security Act 1991, which sets out the qualifications for the Australian Government Disaster Recovery Payment, and is a legislative instrument not subject to disallowance under the Legislation Act 2003. This determination ensures that eligible individuals can access the one-off payment intended to assist with immediate needs arising from the disaster.

Key Provisions

The Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No.3) provides specific circumstances under which an individual will be considered adversely affected by the major disaster, which for this determination includes the storms and flooding in Victoria from 6 October 2022 in certain local government areas (section 4). The operative sections clarify that an individual will be considered adversely affected if they are seriously injured, are a family member of someone killed, if their residence is destroyed or has major damage, if their major assets are destroyed or damaged, or if they are a carer for someone who falls into these categories (subsection 4(2)). Definitions for terms like "destroyed," "immediate family member," "major asset," "major damage," and "seriously injured" are provided to ensure clarity and consistency in applying the provisions (subsection 3). The Act and the Determination impose obligations on both the government and the individuals affected by the disaster. The government, through the Minister, must determine that an event qualifies as a major disaster and specify the circumstances under which individuals are adversely affected. The individuals must provide evidence of their adverse effects as per the criteria outlined in the Determination to be eligible for the Australian Government Disaster Recovery Payment (section 1061L, subsection 4(2)). The Act and Determination also require that any actions taken under the previous Determination, LIN22/091, continue to have effect despite the repeal of that Determination (section 6). Under the Social Security Act 1991, failure to comply with the requirements for the Australian Government Disaster Recovery Payment may result in civil or criminal consequences, although specific penalties are not detailed in the provided text. The Determination is a legislative instrument and not subject to disallowance by Parliament, meaning it can take effect without parliamentary approval, though formal consultation was not undertaken due to the urgency of the disaster (subsection 1061L(3)).

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