EXPLANATORY STATEMENT
Issued by authority of the Minister for Emergency Management
Social Security Act 1991
Social Security (Australian Government Disaster Recovery Payment—Western and Darling Downs Bushfires – October 2023) Determination (LIN 23/083) 2023 (No. 5)
- 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 in relation to 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 bushfire that commenced on 16 October 2023 in Queensland affecting the local government areas of Toowoomba and Western Downs.
- The Social Security (Australian Government Disaster Recovery Payment) (Western and Darling Downs Bushfires – October 2023) Determination (LIN 23/083) 2023 (No. 5) (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 on the day 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 bushfire that commenced on 16 October 2023 in Queensland affecting the local government areas of Toowoomba and Western Downs.
- 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 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) (Western and Darling Downs Bushfires – October 2023) Determination (LIN 23/083) 2023 (No. 5) was enacted in 2023 to address the urgent need for financial assistance to individuals adversely affected by the bushfires that occurred in Queensland's Toowoomba and Western Downs local government areas starting on 16 October 2023. This Determination is a legislative instrument under section 1061L of the Social Security Act 1991, which empowers the Minister for Emergency Management to specify the circumstances under which a person is considered adversely affected by a major disaster, thus qualifying for the Australian Government Disaster Recovery Payment. The Determination clarifies that a person is adversely affected if they are seriously injured, if an immediate family member is presumed killed or killed, if their principal residence is destroyed or damaged, if their major assets are destroyed or damaged, or if they are a carer for a person meeting these criteria. This Determination was made without formal consultation due to the urgent nature of the disaster, but it is intended to provide immediate relief to those in need.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment) (Western and Darling Downs Bushfires – October 2023) Determination (LIN 23/083) 2023 (No. 5) applies specifically to individuals who have been adversely affected by the bushfires that began on 16 October 2023 in Queensland within the local government areas of Toowoomba and Western Downs. This legislation complements the Social Security Act 1991 by specifying the conditions under which a person is considered to be adversely affected by this major disaster. These conditions include being seriously injured, having an immediate family member who is missing and presumed killed or killed, having one's principal place of residence destroyed or severely damaged, experiencing the destruction or major damage of a major asset, or being a carer for a child who meets any of these criteria. The Determination is a legislative instrument and is not subject to disallowance by the Parliament, reflecting the urgency with which the legislation was enacted. The Minister has the authority to determine the circumstances under which an event is considered a major disaster, and this authority extends to defining the specific impacts that qualify an individual for the Australian Government Disaster Recovery Payment.
Key Provisions
The main provisions of the Social Security (Australian Government Disaster Recovery Payment) (Western and Darling Downs Bushfires – October 2023) Determination (LIN 23/083) 2023 (No. 5) are outlined in the Social Security Act 1991 (the Act). Section 1061K of the Act specifies the criteria for the Australian Government Disaster Recovery Payment (AGDRP), with a focus on individuals adversely affected by a major disaster. According to subsection 1061L(1) of the Act, a person is considered adversely affected if they are impacted by the disaster in a manner determined by the Minister. Subsection 1061L(2) allows the Minister to determine in writing the specific circumstances under which a person is to be considered adversely affected. The Determination (LIN 23/083) clarifies these circumstances for the bushfire in Queensland, stating that a person is adversely affected if they are seriously injured, are a family member of a missing or deceased individual, their home or major assets are destroyed or damaged, or they are a carer for someone who meets these criteria.
The Act imposes certain obligations on both the Minister and the individuals seeking the AGDRP. The Minister must determine the specific circumstances that constitute being adversely affected by a major disaster, as outlined in subsection 1061L(2) of the Act. This Determination must be made in writing and should specify the criteria for eligibility, which has been done for the bushfire in Queensland. For individuals, the obligation is to provide evidence that they meet one of the specified criteria for being adversely affected, as defined in the Determination. This evidence may include medical reports, property damage assessments, or other relevant documentation.
The Act also outlines the consequences for those who fail to comply with its provisions or provide false information. While the Act does not explicitly state the penalties for such breaches, it is reasonable to infer that providing false information to obtain the AGDRP could result in civil or criminal penalties under other sections of the Social Security Act 1991. The specific penalties could include fines or imprisonment, depending on the severity of the offence. Given that the Determination was made under urgency and without formal consultation, it is critical that individuals provide accurate information to ensure their eligibility for the payment and to avoid any potential legal repercussions.