Social Security (Australian Government Disaster Recovery Payment—Victorian floods - October 2022) Determination 2022 (No. 6)

Administered by Department of Home Affairs

Legislation au F2022L01698 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. 6)

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, Buloke, Campaspe, Central Goldfields, Corangamite, Gannawarra, Golden Plains, Greater Bendigo, Greater Shepparton, Hepburn, Loddon, Macedon Ranges, Maribyrnong, Melbourne, Mitchell, Moira, Moonee Valley, Mount Alexander, Murrindindi, Northern Grampians, Pyrenees, Strathbogie, Wangaratta and Yarra.
  7. The Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No. 6) (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 22/099. 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, Buloke, Campaspe, Central Goldfields, Corangamite, Gannawarra, Golden Plains, Greater Bendigo, Greater Shepparton, Hepburn, Loddon, Macedon Ranges, Maribyrnong, Melbourne, Mitchell, Moira, Moonee Valley, Mount Alexander, Murrindindi, Northern Grampians, Pyrenees, Strathbogie, Wangaratta 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. 5) (LIN 22/097) 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. 5) (LIN 22/097) 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. 6), enacted under the authority of the Minister for Emergency Management, addresses the urgent need to provide financial assistance to individuals severely impacted by the storms and flooding in Victoria in October 2022. The determination was introduced to ensure that those affected by the disaster receive prompt support in line with the Australian Government Disaster Recovery Payment (AGDRP) provisions outlined in the Social Security Act 1991. This legislative instrument specifies the criteria for individuals to be considered adversely affected by the disaster, facilitating the timely disbursement of necessary aid. The determination outlines specific circumstances, such as serious injury, loss of life in the immediate family, and significant damage to residences or major assets, which qualify individuals for the AGDRP, thereby aiming to mitigate the immediate financial strain caused by the disaster. The determination was necessitated by the significant impact of the October 2022 floods in various Victorian local government areas, prompting an immediate government response to support affected individuals. The policy objective is to provide a one-off payment to those who meet the defined criteria of adverse impact from the disaster, ensuring that they can begin the recovery process without undue financial hardship. This determination, issued under the Social Security Act 1991, allows for swift implementation of the AGDRP, with the Minister empowered to specify the conditions for adverse impact determination in response to the disaster.

Scope and Application

The Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No. 6) applies to individuals who have been adversely affected by the storms and flooding that occurred in Victoria on 6 October 2022, specifically within the local government areas of Benalla, Boroondara, Buloke, Campaspe, Central Goldfields, Corangamite, Gannawarra, Golden Plains, Greater Bendigo, Greater Shepparton, Hepburn, Loddon, Macedon Ranges, Maribyrnong, Melbourne, Mitchell, Moira, Moonee Valley, Mount Alexander, Murrindindi, Northern Grampians, Pyrenees, Strathbogie, Wangaratta, and Yarra. This Determination outlines the specific circumstances in which a person qualifies as adversely affected by the disaster, such as being seriously injured, being an immediate family member of a deceased Australian citizen or resident, having a destroyed or severely damaged principal residence or major asset, or being a principal carer of an affected child. The definitions of terms such as 'destroyed', 'immediate family member','major asset', 'major damage', 'seriously injured', and 'principal place of residence' are provided within the Determination to ensure clarity and precision in application. The Determination also repeals the previous Social Security (Australian Government Disaster Recovery Payment – Victorian floods – October 2022) Determination 2022 (No. 5) (LIN 22/097) while allowing actions taken under the repealed determination to continue having effect. Notably, this legislative instrument is not subject to disallowance by the Parliament.

Key Provisions

The primary sections of the Social Security (Australian Government Disaster Recovery Payment—Victorian floods – October 2022) Determination 2022 (No. 6) (the Determination) establish the specific circumstances under which an individual qualifies for the Australian Government Disaster Recovery Payment (AGDRP) as a result of the major disaster in Victoria in October 2022. Section 4(2) of the Determination clarifies that a person will be considered adversely affected if they are seriously injured due to the disaster, if they are an immediate family member of someone killed in the disaster, if their principal place of residence has been destroyed or severely damaged, if their major assets have been destroyed or significantly damaged, or if they are the primary carer of a child who meets any of these criteria (subsection 4(2)(a) to (d)). These criteria are integral in determining eligibility for the AGDRP. The Determination also defines key terms such as "destroyed," "immediate family member," "major asset," "major damage," and "seriously injured" (subsection 3(1)) to ensure a clear understanding of the eligibility requirements. The Determination imposes several obligations on the parties involved. Firstly, individuals who believe they are adversely affected by the disaster must provide evidence to substantiate their claim, such as medical records for injuries, death certificates for immediate family members killed, and documentation of property damage or loss. The Department of Home Affairs, which administers the AGDRP, is obligated to review these submissions and make decisions based on the evidence provided. Furthermore, the Determination mandates that the Social Security (Australian Government Disaster Recovery Payment – Victorian floods – October 2022) Determination 2022 (No. 5) (LIN 22/097) be repealed, although actions taken under the repealed determination continue to have effect (section 5 and 6). This ensures a smooth transition to the new Determination while maintaining the integrity of ongoing claims. Under the Social Security Act 1991, any person found to have provided false or misleading information in their application for the AGDRP may face serious consequences. Such actions could be considered a breach of the Act and may result in civil or criminal penalties. The Act does not specify particular offences or penalties within the Determination itself, but generally, providing false information for government benefits can lead to fines, imprisonment, or both, depending on the severity of the offence. These consequences underscore the importance of accuracy and honesty in the application process.

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